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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

Kevin Murphy, May 13, 2013, Domain Services

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.

WIPO supported Draconian cybersquatting reform

Kevin Murphy, July 9, 2012, Domain Policy

Domain name owners who do not respond to cybersquatting complaints could automatically have their domains suspended, if the World Intellectual Property Organization gets its way.

That’s according to the latest ICANN documents to be released under its Documentary Information Disclosure Policy, following a request from the Internet Commerce Association.

The documents relate to the still controversial Uniform Rapid Suspension policy, a supplement to the existing UDRP for dealing with “clear cut” cases of cybersquatting.

The URS will be binding on all new gTLDs, but ICANN recently admitted that it’s been unable to find an organization willing to administer URS cases for the planned $300 to $500 filing fee.

Rather than implement URS with a $1,000 to $1,500 fee instead, ICANN plans to host two community summits to try to figure out ways to rearchitect the scheme to make it cheaper.

These changes could well mean fewer safeguards for domain registrants.

According to an email from WIPO released in response to ICA’s DIDP request, WIPO declined to host these summits unless ICANN agreed, in advance, to Draconian rules on default.

WIPO’s Erik Wilbers wrote (pdf):

it would seem unlikely that these stakeholders would now feel able to commit to the rather fundamental changes we believe to be in everyone’s interest – notably a shift to the proposed respondent-default basis without panel, subject to appropriate safeguards. We would consider an express prior commitment to such a shift, including the requisite Board support, as a pre-condition to a fruitful meeting on the URS.

In other words, WIPO thinks domain names should be suspended without expert review if the domain owner does not respond to a trademark owner’s URS complaint.

ICA counsel Phil Corwin is naturally not happy about this, writing in a blog post this weekend:

WIPO would only consent to hosting URS Summits if their result was largely pre-ordained – in which event, we ask, why bother holding the Summits at all? … This imperious demand should be dismissed out of hand by members of ICANN’s Board should it ever reach them.

That the structure of URS is still open for debate at this late stage of the game is an embarrassment, particularly given the fact that it’s been well-understood for some time that URS was unrealistically priced.

The new DIDP documents reveal that even the idea of summits to resolve the apparently intractable problems were a Band-Aid proposed almost accidentally by ICANN staff.

ICANN, it seems, is engaged in policy fire-fighting as usual.

The current hope is for URS to be finalized and a provider be in place by June 2013. It’s a plausible timetable, but I’m less convinced that a system can be created that is fair, useful and cheap.

ICA demands probe of “shoddy” UDRP decisions

Kevin Murphy, February 24, 2012, Domain Policy

The Internet Commerce Association has called for an ICANN investigation into the National Arbitration Forum’s “seriously flawed” record of UDRP decisions.

The demands follow two recent NAF cybersquatting cases thought to be particularly egregious.

In the first, Hardware Resources, Inc. v. Yaseen Rehman, the domain hardwareresources.org was transferred based on a trademark that explicitly denounced rights to the term “hardware resources”.

In the second, Auto-Owners Insurance Company v. Nokta Internet Technologies, NAF allegedly broke from standard UDRP procedure when it handed autoownersinsurance.com to the complainant.

Both were cases of potentially valuable generic domains being lost, and both were recently singled out by IP attorney Paul Keating as being particularly dubious decisions.

The ICA represents some big domainers and some of the big domaining registrars. Its counsel, Phil Corwin, wrote to ICANN yesterday to demand a review of NAF’s practices:

NAF’s administration of the UDRP in the cases cited above appears to be seriously flawed and creates the appearance of substantial bias and ineptitude. ICANN has a responsibility to make serious inquiry into this matter and to take remedial action based upon its findings.

According to Corwin, there’s circumstantial evidence that NAF encourages “forum shopping” due to its habit of appointing a small number of adjudicators known to be friendly to complainants.

Regular readers of DomainIncite and other domain industry news blogs may have noticed that when we report incredulously about UDRP decisions, it’s usually with reference to NAF cases.

Corwin’s letter comes as part of a larger ongoing campaign by the ICA to get ICANN to sign formal contracts with its approved UDRP resolution providers, which it lacks today.