Now the DNA backpedals on “Copyright UDRP”

The Domain Name Association has distanced itself from the Copyright ADRP, a key component of its Healthy Domains Initiative, after controversy.
The anti-piracy measure would have given copyright owners a process to seize or suspend domain names being used for massive-scale piracy, but it appears now to have been indefinitely shelved.
The DNA said late Friday that it has “elected to take additional time to consider the details” of the process, which many of us have been describing as “UDRP for Copyright”.
The statement came a day after .org’s Public Interest Registry announced that it was “pausing” its plan for a Systemic Copyright Infringement Alternative Dispute Resolution Policy modeled on UDRP.
PIR was the primary pen-holder on the DNA’s Copyright ADRP and the only registry to publicly state that it intended to implement it.
It’s my view that the system was largely created as a way to get rid of the thepiratebay.org, an unwelcome presence in the .org zone for years, without PIR having to take unilateral action.
The DNA’s latest statement does not state outright that the Copyright ADRP is off the table, but the organization has deleted references to it on its HDI web page page.
The HDI “healthy practices” recommendations continue to include advice to registries and registrars on handling malware, child abuse material and fake pharmaceuticals sites.
In the statement, the DNA says:

some have characterized [Copyright ADRP] as a needless concession to ill-intentioned corporate interests, represents “shadow regulation” or is a slippery slope toward greater third party control of content on the Internet.
While the ADR of course is none of these, the DNA’s concern is that worries over these seven recommendations have overshadowed the value of the remaining 30. While addressing this and other illegalities is a priority for HDI, we heard and listened to various feedback, and have elected to take additional time to consider the details of the ADR recommendations.
…
Thus, the DNA will take keen interest in any registrar’s or registry’s design and implementation of a copyright ADR, and will monitor its implementation and efficacy before refining its recommendations further.

The copyright proposal had been opposed by the Electronic Frontier Foundation, the Internet Commerce Association and other members of ICANN’s Non-Contracted Parties House.
In a blog post over the weekend, ICA counsel Phil Corwin wrote that he believed the proposal pretty much dead and the issue of using domains to enforce copyright politically untouchable:

While the PRI and DNA statements both leave open the possibility that they might revive development of the Copyright UDRP at some future time, our understanding is that there are no plans to do so. Further, notwithstanding the last sentence of the DNA’s statement, we believe that it is highly unlikely that any individual registrar or registry would advance such a DRP on its own without the protective endorsement of an umbrella trade association, or a multistakeholder organization like ICANN. Ever since the U.S. Congress abandoned the Stop Online Privacy Act (SOPA) in January 2012 after millions of protesting calls and emails flooded Capitol Hill, it has been clear that copyright enforcement is the third rail of Internet policy.

PIR slams brakes on “UDRP for copyright”

Public Interest Registry has “paused” its plan to allow copyright owners to seize .org domains used for piracy.
In a statement last night, PIR said the plans were being shelved in response to publicly expressed concerns.
The Systemic Copyright Infringement Alternative Dispute Resolution Policy was an in-house development, but had made its way into the Domain Name Association’s recently revealed “healthy practices” document, where it known as Copyright ADRP.
The process was to be modeled on UDRP and similarly priced, with Forum providing arbitration services. The key difference was that instead of trademark infringement in the domain, it dealt with copyright infringement on the associated web site.
PIR general counsel Liz Finberg had told us the standard for losing a domain would be “clear and convincing evidence” of “pervasive and systemic copyright infringement”.
Losers would either have their domain suspended or, like UDRP, seized by the complainant.
The system seemed to be tailor-made to give PIR a way to get thepiratebay.org taken down without violating the owner’s due process rights.
But the the announcement of Copyright ADRP drew an angry response from groups representing domain investors and free speech rights.
The Electronic Frontier Foundation said the system would be captured by the music and movie industries, and compared it to the failed Stop Online Piracy Act (SOPA) in the US.
The Internet Commerce Association warned that privatized take-down policies at registries opened the door for ICANN to be circumvented when IP interests don’t get what they want from the multi-stakeholder process.
I understand that members of ICANN’s Non-Contracted Parties House was on the verge of formally requesting PIR pause the program pending a wider consultation.
Some or all of these concerns appear to have hit home, with PIR issuing the following brief statement last night:

Over the past year, Public Interest Registry has been developing a highly focused policy that addresses systemic, large scale copyright infringement – the ”Systemic Copyright Infringement Alternative Dispute Resolution Policy” or SCDRP.
Given certain concerns that have been recently raised in the public domain, Public Interest Registry is pausing its SCDRP development process to reflect on those concerns and consider forward steps. We will hold any further development of the SCDRP until further notice.

SCDRP was described in general terms in the DNA’s latest Healthy Domains Initiative proposals, but PIR is the only registry to so far publicly express an interest in implementing such a measure.
Copyright ADRP may not be dead yet, but its future does not look bright.

UPDATE: This post was updated 2/26 to clarify that it was only “some members” of the NCPH that were intending to protest the Copyright ADRP.

Angry reactions to “UDRP for copyright”

The Electronic Frontier Foundation and Internet Commerce Association are among those expressing initial concern about the introduction of a new “UDRP for copyright” mechanism by the Domain Name Association.
The EFF said the DNA’s new proposals want registries to become “private arbiters of online speech”, while the ICA expressed concern that the proposals could circumvent the usual ICANN policy-making process.
As we reported earlier in the week, the DNA has set out a set of four “healthy practices” (the term “best practices” was deliberately avoided, I’m told) for registries and registrars, under the banner of its Healthy Domains Initiative.
The first three sets of recommendations cover malware, child abuse material and fake pharmacies and are relatively non-controversial.
However, the surprising fourth proposal seeks to give copyright holders a means to suspend or seize control of domain names where they have “clear and convincing evidence” of “pervasive and systemic copyright infringement”.
While the details have yet to be finalized, it appears to be targeted at sites such as The Pirate Bay, which are used for pretty much nothing but copyright infringement.
“This is a terrible proposal,” the EFF’s Jeremy Malcolm and Mitch Stoltz wrote yesterday:

The content that happens to be posted within [a] website or service has nothing to do with the domain name registrar, and frankly, is none of its business. If a website is hosting unlawful content, then it is the website host, not the domain registrar, who needs to take responsibility for that

They added:

it seems too likely that any voluntary, private dispute resolution system paid for by the complaining parties will be captured by copyright holders and become a privatized version of the failed Internet censorship bills SOPA and PIPA

Those are references to two proposed US laws, the Stop Online Piracy Act and Protect IP Act, that attracted lots of criticism and never saw the light of day.
The ICA, in a separate post on its own site, expressed concerns that private initiatives such as the HDI could give trademark holders another way to route around ICANN policies they do not like.
Noting that trademark protection mechanisms are already under review in a ICANN working group, ICA counsel Phil Corwin wrote:

What if the final consensus decision of that WG is that the URS remedy should remain domain suspension and not transfer, or that the UDRP standard of “bad faith registration and use” should remain as is? Are TM owners then free to develop their own “best practices” that include domain transfer via URS, or a bad faith registration or use standard? What’s the point of going through a multi-year exercise if those dissatisfied with the result can seek stiffer private policies? Just how many bites at the apple should trademark holders get

Both ICA and EFF expressed concern that the new DNA proposals seemed to have been developed without the broad input of members.
Stoltz and Malcolm wrote:

In any purported effort to develop a set of community-based principles, a failure to proactively reach out to affected stakeholders, especially if they have already expressed interest, exposes the effort as a sham.

Corwin wrote:

ICA had no advance knowledge of the details of HDI and no opportunity to provide substantive input. So our fingerprints are nowhere on it.

The Copyright ADRP proposal appears to be the brainchild of Public Interest Registry, the .org registry.
PIR general counsel Liz Finberg told DI earlier this week that PIR is working with arbitration provider Forum to finalize the rules of the process and hopes to implement it in .org before the end of the first quarter.
No other registry has publicly stated similar plans to my knowledge.
The HDI recommendations are completely voluntary and registries/ars are free to adopt them wholly, partially or not at all. They are not ICANN policies.

.xxx has its ICANN fees slashed and adopts URS

ICM Registry is to see its .xxx ICANN registry fees hugely reduced in contractual amendments approved by ICANN last week.
The changes also mean that .xxx will now become subject to the Uniform Rapid Suspension anti-cybersquatting mechanism, despite it being a pre-2012 gTLD.
.xxx becomes the latest pre-2012 gTLD to move to a contract more closely aligned with the standard Registry Agreement from the new gTLD program.
Under the complex new deal, its per-transaction fee could be reduced from $2 to $0.25 by mid-2018.
Its quarterly fixed fee will go up from $2,500 to $6,250.
ICM has also agreed to take on many aspects of the standard new gTLD Registry Agreement, the most controversial of which is the URS.
The domainer group the Internet Commerce Association was fiercely critical of this addition to the contract, as it has been when URS was brought to .jobs, .travel, .cat, .pro and .mobi.
ICA is largely concerned that URS will also be pushed upon Verisign’s .net, which is up for contract renewal this year, and eventually .com.

ICA worried ICANN will force URS on .net

The Internet Commerce Association has called for a “moratorium” on the Uniform Rapid Suspension policy being added to legacy gTLD contracts, months before Verisign’s .net contract is up for renewal.
In a blog post, ICA counsel Phil Corwin accused ICANN staff of making policy by the back door by compelling pre-2012 registries to adopt URS, despite a lack of ICANN community consensus policy.
In the last few years the registries for .jobs, .travel, .cat, .pro, .xxx and most recently .mobi have agreed to adopt many aspects of the 2012 Registry Agreement, which includes the URS, often in exchange for lower ICANN fees.
Corwin wrote:

the real test of [ICANN’s Global Domains Division’s] illicit strategy of incremental de facto policymaking will come later this year, when the .Net RA comes up for renewal. We have no idea whether Verisign will be seeking any substantial revisions to that RA that would provide GDD staff with substantial leverage to impose URS, nor do we know whether Verisign would be amenable to that tradeoff.

The .net RA is due to expire July 1 this year.
Verisign pays ICANN $0.75 for each .net domain registration, renewal and transfer. If that were to be reduced to the 2012 standard of $0.25, it would save Verisign at least $7.5 million a year.
The URS provides brand owners with a way to suspend trademark-infringing domains in clear-cut cases. It’s based on UDRP but is faster and cheaper and does not allow the brand owner to seize ownership of the domains.
ICA represents large domain speculators, most of which have their investments tied up in .com and .net domains. It’s complained about the addition of URS to other gTLDs but the complaints have largely fallen on deaf ears.
ICANN has said that it does not force URS on anyone, but that it takes the base new gTLD program RA as its starting point for bilateral negotiations with registries whose contracts are up for renewal.

Odd-couple coalition wants URS deleted from legacy gTLD contracts

Commercial and non-commercial interests within ICANN have formed a rare alliance in order to oppose the Uniform Rapid Suspension policy in three new legacy gTLD contracts.
The groups want ICANN to delete URS from the .travel, .cat and .pro Registry Agreements, which were all renewed for 10-year terms last week.
The Business Constituency and the Non-Commercial Stakeholders Group put their names to a Request for Reconsideration filed with ICANN yesterday.
The Internet Commerce Association, a member of the BC, filed a separate RfR asking for the same thing yesterday too.
These groups believe that ICANN contracting staff are trying to create consensus policy by the back door, from the top down, by imposing URS on gTLDs that were delegated before the 2012 application round.
URS was created specifically for the new gTLD program and therefore should not apply to legacy gTLDs, they say. The BC/NCSG request states:

Our joint concern… is that a unilateral decision by ICANN contractual staff within the [Global Domains Division] to take the new gTLD registry agreement as the starting point for renewal RAs for legacy gTLDs has the effect of transforming the PDDRP [Post Delegation Dispute Resolution Process] and the URS into de facto Consensus Policies without following the procedures laid out in ICANN’s Bylaws for their creation. To be clear, we take no objection to a registry voluntarily agreeing to adopt RPMs in their contractual negotiations with ICANN.

The ICA has the same objections. It’s primarily concerned that the new contracts set a precedent that will ultimately force URS into the .com space, when Verisign’s contract comes up for renewal.
Both RfRs ask ICANN to delete the URS requirements from the just-signed .pro, .travel and .cat registry agreements.
The requesters suspect that rather than including URS as “the result of even-handed ‘bilateral negotiations'”, it was “staff insistence that the registries accept it to achieve timely registry agreement renewal.”
They want the ICANN board to demand to see the emails that were exchanged during negotiations in order to determine whether the registries were strong-armed into signing up for URS.
The BC/NCSG request is here. The ICA request is here.

URS arrives in three legacy gTLDs

The legacy gTLDs .cat, .pro and .travel will all be subject to the Uniform Rapid Suspension policy from now on.
Earlier this week, ICANN approved the new Registry Agreements, which are based on the new gTLD RA and include URS, for all three.
URS is an anti-cybersquatting policy similar to UDRP. It’s faster and cheaper than UDRP but has a higher burden of proof and only allows domains to be suspended rather than transferred.
The inclusion of the policy in pre-2012 gTLDs caused a small scandal when it was revealed a few months ago.
Critics, particularly the Internet Commerce Association, said that URS (unlike UDRP) is not a Consensus Policy and therefore should not be forced on registries.
ICANN responded that adding URS to the new contracts came about in bilateral negotiations with the registries.
The board said in its new resolutions this week:

the Board’s approval of the Renewal Registry Agreement is not a move to make the URS mandatory for any legacy TLDs, and it would be inappropriate to do so. In the case of .CAT, inclusion of the URS was developed as part of the proposal in bilateral negotiations between the Registry Operator and ICANN.

The concern for ICA and others is that URS may one day be forced into the .com RA, putting domainer portfolios at increased risk.

URS fight brewing at ICANN 53

Should the Uniform Rapid Suspension process spread from new gTLDs to incumbent gTLDs, possibly including .com?
That’s been the subject of some strong disagreements during the opening weekend of ICANN 53, which formally kicks off in Buenos Aires today.
During sessions of the Generic Names Supporting Organization and the ICANN board and staff, ICANN was accused of trying to circumvent policy-making processes by forcing URS into the .travel, .pro and .cat registry agreements, which are up for renewal.
ICANN executives denied doing any such thing, saying the three registries volunteered to have URS included in their new contracts, which are modeled on the standard new gTLD Registry Agreement.
“It’s just something we’ve suggested and they’ve taken up,” said Cyrus Namazi, ICANN’s vice president of domain name services.
If a registry wants to increase the number of rights protection mechanisms in its gTLD, why not let them, ICANN execs asked, pointing out that loads of new gTLDs have implemented extra RPMs voluntarily.
ICANN admits that it stands to benefit from operational efficiencies when its registry agreements are more uniform.
Opponents pointed out that there’s a difference between Donuts, say, having its bespoke, voluntary Domain Protected Marks List, and bilaterally putting the URS into an enforceable ICANN contract.
URS is not a formal Consensus Policy, they say, unlike UDRP. Consensus Policies apply to all gTLDs, whereas URS was created by ICANN for new gTLDs alone.
Arguably leading the fight against URS osmosis is Phil Corwin, counsel for Internet Commerce Association, which doesn’t want its clients’ vast portfolios of .com domains subject to URS.
He maintained over the weekend that his beef was with the process through which URS was making its way into proposed legacy gTLD contracts.
It shouldn’t be forced upon legacy gTLDs without a Consensus Policy, he said.
While the GNSO, ICANN staff and board spent about an hour talking about “process” over the weekend, it was left to director Chris Disspain to point out that that was basically a smokescreen for an argument about whether the URS should be used in other gTLDs.
He’s right, but the GNSO is split on this issue in unusual ways.
Corwin enjoys the support of the Business Constituency, of which he is a member, in terms of his process criticisms if not his criticisms of RPMs more generally.
ICA does also have backing from some registrars (which bear the support costs of dealing with customers affected by URS), from the pro-registrant Non-Commercial Stakeholders Group, and from groups such as the Electronic Frontier Foundation.
The Intellectual Property Constituency thinks that the process is just fine — .travel et al can sign up to URS if they want to.
While the registries have not yet put forward a joint position, the IPC’s view has been more or less echoed by Donuts, which owns the largest portfolio of new gTLDs.
The public comment period for the .travel contract ended yesterday. Comments can be read here. Comment periods on .cat and .pro close July 7.

Two more legacy gTLDs agree to use URS

The registries behind .pro and .cat have agreed to new ICANN contracts with changes that, among other things, would bring the Uniform Rapid Suspension policy to the two gTLDs.
Both gTLD Registry Agreements expire this year. Proposed replacement contracts, based heavily on the base New gTLD Registry Agreement, have been published by ICANN for public comment.
They’re the second and third pre-2012 gTLDs to agree to use URS, which gives trademark owners a simpler, cheaper way to have infringing domains yanked.
Two weeks ago, .travel agreed to the same changes, which drew criticisms from the organization that represents big domain investors.
Phil Corwin of the Internet Commerce Association is worried that ICANN is trying to make URS a de facto consensus policy and thereby bring it to .com, which is still where most domainers have most of their assets.
Following DI’s report about .travel, Corwin wrote last week:

this proposed Registry Agreement (RA) contains a provision through which staff is trying to preempt community discussion and decide a major policy issue through a contract with a private party. And that very big issue is whether Uniform Rapid Suspension (URS) should be a consensus policy applicable to all gTLDs, including incumbents like .Com and .Net.
…
ICANN needs to hear from the global Internet community, in significant volume, that imposing the URS on an incumbent gTLD is unacceptable because it would mean that ICANN staff, not the community, is determining that URS should be a consensus policy and thereby undermining the entire bottom-up policy process. Domain suspensions are serious business – in fact they were at the heart of the SOPA proposal that inspired millions of emails to the US Congress in opposition.

The concern about .com may be a bit over-stated.
Verisign’s current .com contract is presumptively renewed November 2018 provided that it adopts terms similar to those in place at the five next-largest gTLDs.
Given that .net is the second-largest gTLD, and that .net does not have URS, we’d have to either see .net’s volume plummet or at least five new gTLDs break through the 15 million domains mark in the next three years, both of which seem extraordinarily unlikely, for .com to be forced to adopt URS.
However, if URS has become an industry standard by then, political pressure could be brought to bear regardless.
Other changes to .pro and .cat contracts include a change in ICANN fees.
While .pro appears to have been on the standard new gTLD fee scheme since 2012, .cat is currently paying ICANN $1 per transaction.
Under the new contract, .cat would pay $0.25 per transaction instead, but its annual fixed fee would increase from $10,000 to $25,000.

URS providers to get contracts

The companies handling Uniform Rapid Suspension domain name disputes will be bound to a contract, ICANN has said.
In a follow-up Q&A document (pdf) from the public forum session at the ICANN meeting in Beijing last month, posted Friday, ICANN said:

As regards Uniform Rapid Suspension (URS) providers, will there be a contract developed that goes beyond the non-enforceable memorandum of understanding? Will there be other URS providers?
Yes, a contract is being developed and additional URS providers will be added.

That appears to be new information.
Domainers, and the Internet Commerce Association, which represents domainers, have long pressed for UDRP providers and, more recently, URS providers, to be bound by contracts.
The ICA, for example, has often said that no new UDRP providers should be approved until there’s a contractual way for ICANN to prevent mismanagement of disputes and “forum shopping”.
Soon, it seems, at least URS providers will have some contractual coverage.
The National Arbitration Forum and the Asian Domain Name Dispute Resolution Centre have already been approved as URS providers.