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UDRP reform put on hold for four years

Kevin Murphy, December 20, 2011, Domain Policy

ICANN’s cybersquatting rules, including the Uniform Dispute Resolution Policy, will be reviewed and possibly reformed, but probably not until 2016 at the earliest.

The Generic Names Supporting Organization Council voted last Thursday to put the start of UDRP reform on hold until 18 months after the first new top-level domains go live.

The review will also take into account other cybersquatting policies including Uniform Rapid Suspension, which will be binding on all new gTLD registries but has yet to be be tested.

This is the relevant part of the resolution:

the GNSO Council requests a new Issue Report on the current state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to, the UDRP and URS, should be delivered to the GNSO Council by no later than eighteen (18) months following the delegation of the first new gTLD.

An Issue Report is compiled by ICANN staff and often leads to a Policy Development Process that creates policies binding on registries, registrars and ultimately registrants.

Because the first new gTLDs are not expected to be delegated until the first quarter of 2013 at the earliest, the Issue Report would not be delivered until half way through 2014.

After ICANN public comment and analysis, the GNSO Council would be unlikely to kick off a PDP until the first half of 2015. The PDP itself could take months or years to complete.

In short, if UDRP is going to be reformed, we’re unlikely to see the results until 2016.

The Council resolution, which was in line with Governmental Advisory Committee advice, was proposed by the registries, following many months of ICANN public outreach and discussion.

Non-commercial users in the GNSO were most strongly in favor of an accelerated timetable, but a request to reduce the 18-month breather to a year failed to find support.

The Intellectual Property Constituency had proposed an amendment that would have kicked off the process after 100 UDRP and 100 URS cases had been heard in new gTLDs, rather than after a specified time, but the motion was defeated.

Full UDRP reform unlikely until 2017

Kevin Murphy, October 4, 2011, Domain Policy

The often-criticized Uniform Dispute Resolution Policy is unlikely to see fundamental changes for at least five years, following an ICANN review published yesterday.

ICANN has recommended, after talking to the community, that full UDRP reform should be put on the back-burner until at least a year and a half after the first new gTLDs go live.

Since that isn’t likely to happen until early 2013, ICANN is unlikely to address the subject until mid-2014. The chances of a revamped UDRP going live before 2017 are therefore slim.

The new Final Issue Report (pdf), prepared by ICANN staff and sent to the GNSO Council yesterday, says:

Staff recommends that a [Policy Development Process] on the UDRP not be initiated at this time. Staff recommends that a PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. Doing so would allow the policy process to be informed by data regarding the effectiveness of the URS, which was modelled on the UDRP, to address the problem of cybersquatting.

The report was informed by a number of stakeholder webinars and questionnaires sent to UDRP providers earlier this year, as well as a round of public comments.

It notes that UDRP has remained the same since October 1999, but that it still has proved flexible enough to react to changes in the domain industry and cybersquatting tactics.

The report states:

After carefully evaluating the issues and concerns expressed by the ICANN community regarding the UDRP, Staff has concluded that many relate to process issues associated with the implementation of the UDRP, rather than the language of the policy itself.

In the absence of root-and-branch reform, ICANN has suggested the formation of an “expert panel” to investigate whether smaller changes could be made to the periphery of the UDRP.

It could, for example, look at amendments to the Supplemental Rules that UDRP providers use to handle complaints and responses. ICANN wrote:

To the extent that these expert recommendations result in modifications to certain of the UDRP Rules or suggested changes for provider Supplemental Rules to align with the UDRP Rules, these may be adopted by the ICANN Board without the necessity of undertaking a complete PDP.

Consultations have shown that there’s little appetite for massive reform from either side of the debate; it’s probably not too cynical to say that the status quo will be maintained largely by paranoia.

Trademark holders would ideally prefer a cheaper, faster system that is more accommodating to their own interests, whereas domain investors would like to see an end to forum-shopping and panelists who give too much deference to big business.

But both sides are terrified that the actual process of reforming UDRP would be captured by their opponents, ultimately tilting the balance of power against their own interests.

The trademark lobby is convinced that ICANN policy-development is the plaything of the domain name industry, and vice versa.

What we’re left with is a system where cybersquatting still pays and in which reverse domain hijacking can sometimes be a cheap way to get your hands on a domain you want.

And it looks like it could stay that way for some time to come.

The Final Issue Report now needs to be considered by the GNSO Council, presumably at its public meeting in Dakar, Senegal later this month.

I think the Council will almost certainly accept the report’s recommendations against a PDP with little argument – everybody has far too much other stuff to be worrying about at the moment.

It’s less clear to me whether the idea of an “expert panel” will find favor, however. That may be one of Dakar’s more interesting open questions.

Poor nation support crucial to new TLD talks

Kevin Murphy, May 23, 2011, Domain Policy

Whether to provide discounts for new top-level domain applicants from poor countries has become a critical obstacle in the process of getting ICANN’s new gTLD program approved.

Not only are its policy-making bodies going through a bout of infighting over proposals to help developing nations, but it is also being seen as a “major political risk” to ICANN’s global credibility.

Sources say that the Governmental Advisory Committee is increasingly concerned that a lack of support for poorer nations could used to bash the gTLD program and discredit ICANN itself.

There are fears that the Group of 77 could use the perception that ICANN works primarily for the benefit of the developed world to push for more UN-based governmental control of the internet.

These concerns were apparently raised during the ICANN Board-GAC teleconference on Friday, and will continue to be discussed in the run-up to the Singapore meeting.

Merely applying for a new gTLD will cost a minimum of $185,000 in direct ICANN fees, potentially rising dramatically in the case of complex or contested applications.

That sum also excludes the many more hundreds of thousands of dollars required to create an application that meets ICANN’s stringent financial and technical stability demands.

Many have estimated that an application for a new gTLD could require an first-year outlay of easily over $1 million.

Unsurprisingly, this may exclude applicants from poorer nations, particularly non-profit and community-based initiatives.

There’s a worry that if support mechanisms are not in place for the first round of applications, culturally or commercially valuable IDN gTLDs will get snapped up by wealthy western companies.

Warning: More Acronyms Ahead

To come up with solutions to this problem, ICANN in April 2010 asked for what is now called the “Joint SO/AC Working Group on New gTLD Applicant Support” – JAS for short.

JAS was chartered by, and comprised of members of, the Generic Names Supporting Organization and the At Large Advisory Committee, two of ICANN’s policy bodies.

Earlier this month, JAS submitted its draft second milestone report (pdf) was submitted to the ICANN board. It’s more of a collection of ideas than a structured framework for applicant support.

It calls for, among other things, fees and financial commitments reduced by as much as three quarters for applicants from about 50 poor nations, if they can show they are (essentially) worthy and needy.

It also suggests that such applicants could have their requirements to support the new DNSSEC and IPv6 technologies from day one – which would raise start-up costs – eliminated.

Unfortunately, the GNSO and ALAC apparently had quite different expectations about what the JAS would produce, and since January the group has been working under a split charter.

Registries and registrars were (and are) worried that JAS was going too far when it recommended, for example, discounted application fees.

Because ICANN has priced applications on a cost-recovery basis, there’s a real concern that discounts for poor applicants will translate into higher fees for wealthier applicants.

Broadly, it’s an example of the usual tensions between commercial domain name industry stakeholders and other groups playing out through quite arcane due process/jurisdictional arguments.

For the last couple of weeks, this has manifested itself as a row about the fact that JAS submitted its report the report was submitted to the ICANN board before it was approved by the GNSO.

Mind The GAC

If it’s the case, as sources say, that the GAC is urgently pressing for applicant support measures to be available in the first round of new gTLD applications, this puts another question mark over ICANN’s ability to approve the Applicant Guidebook in Singapore a month from now.

The GAC “scorecard” of problematic issues has since November stated that ICANN should adopt the findings of the JAS.

But today the JAS is nowhere near producing a comprehensive solution to the problem. Its recommendations as they stand are also unlikely to attract broad support from registry/registrar stakeholders.

Many of its current suggestions are also highly complex, calling for ICANN to establish special funds, staggered payment or repayment programs and additional applicant background checks.

They would take time to implement.

There’s been some talk about the idea that ICANN could approve the Applicant Guidebook before the JAS work is complete, but I’m not sure how realistic that is or whether it would receive the GAC blessing.

If the GAC is worried that ICANN’s very legitimacy could be at risk if it goes ahead with the program before the developing world is catered for, we could be looking at another big roadblock.

Two-horse race for ICANN board seat

Kevin Murphy, April 24, 2011, Domain Policy

A seat on ICANN’s board of directors opens up in June, and two people have been nominated to fill it.

Avri Doria and Bill Graham will face a ballot to see who will replace Rita Rodin Johnson, whose term expires at the end of ICANN’s Singapore meeting, June 24.

It’s not an open ballot, of course. The seat is designated to be occupied by a member of ICANN’s Generic Names Supporting Organization’s Non-Contracted Parties House.

That’s basically the half of the GNSO policy-making body made up of representatives of organizations that are not domain name registrars or registries — they have no contracts with ICANN.

Doria works at a Swedish university. She sits in the Non-Commercial Stakeholders Group, and is a former chair of the GNSO Council.

Graham was once Canada’s representative on and vice-chair of ICANN’s Governmental Advisory Committee, and is now head of strategic global engagement at the Internet Society.

Only 13 members of the NCPH get to vote. Whichever candidate receives eight votes or more, wins.

ICANN staff grilled over new TLDs

Kevin Murphy, March 13, 2011, Domain Registries

ICANN’s San Francisco meeting kicked off this morning with staff members responsible for the new top-level domains program answering – and trying to answer – stakeholder questions.

The short version: it’s still not clear what the end result of San Francisco will be when it comes to new TLDs.

The big deal this week is ICANN’s ongoing consultation with its Governmental Advisory Committee, which remains the biggest hurdle before ICANN can approve the program.

GNSO stakeholders wanted to know the current state of play with this consultation, and how close ICANN is to wrapping up policy development and launching the new TLD program.

A key question is whether the two days of talks the board has scheduled for this week count as the final GAC consultation called for in ICANN’s bylaws.

If they are, the board and the GAC could wrap up their negotiations before the board meets on Friday, and the program is one step closer to approval. ICANN wants this.

If they’re not, we could be looking at further GAC talks stretching on into the weeks or months between now and the Singapore meeting in June. The GAC seems to want this.

ICANN senior vice president Kurt Pritz said that the board and GAC met for one hour yesterday, but that they still have not agreed on the “bylaws” designation.

He said that the board “has a sense of urgency” about approving the program as soon as possible, and that the GAC is newly “energized”.

Staff were asked, by VeriSign’s Chuck Gomes and Minds + Machines’ Antony Van Couvering, whether such a consultation is needed at all.

After all, as has been discussed in articles on CircleID and .nxt recently, there’s no mention in the ICANN bylaws of a “consultation” per se.

Deputy general counsel Dan Halloran said that this is an area still open for discussion, but indicated that reaching common ground on the substantive issues is currently the priority.

There seems to be a feeling that the current talks represent not only a necessary step in approving new TLDs, but also a landmark piece of cooperation in the sphere of internet governance.

On the substantive issues, ICANN has currently marked each of the 80 points the GAC has made with the designation 1a, 1b or 2, depending on whether agreement has been reached, only reached in principle, or has not been reached at all.

The focus this week is going to be on the 23 “2s”. These are the issues, Pritz said, where ICANN has determined that to agree with the GAC would run contrary to the GNSO’s consensus positions.

Philip Corwin of the Internet Commerce Association, which represents domain investors, wanted to know whether “1a” topics are currently locked – the ICA is unhappy with a 1a concession ICANN has made regarding the Uniform Rapid Suspension policy.

The answer from staff was basically yes — a 1a is where ICANN’s board and staff think “we’re done”, Pritz said.

The plan for the rest of the week is to hold open discussions on the new TLD process on Monday and Wednesday, with corresponding bilateral GAC-board sessions on Tuesday and Thursday.

Stakeholder groups have been invited to make statements before and to inform these sessions.