A few points on ICANN's new gTLD policy implementation plans

[Robin Gross]

Greetings from Cairo,

A few key points on the discussion and newly released ICANN papers on
Implementation of New gTLD Recommendations.

A.  On the Legal Rights of Others Objection:

ICANN lists 8 factors to consider in deciding whether to deny a
domain name based on the alleged intellectual property rights of
others.  The UDRP, international trademark law and anti-cyber-
squatting laws all require consideration of "whether the applicant
has a free expression right?"  ICANN's recommended 8 factors do not
consider the applicant's freedom of expression rights in any way.
ICANN's recommendation is basically 8 factors that are 8 different
versions of the same idea: has the objector ever had the trademark?
or does the objector intend to apply for a trademark? Or any other
IPR right the objector might have or want, like a copyright?  Etc.

So this recommendation for implementation departs from the UDRP and
international law and it also ignores Principle G of the GNSO's Final
Recommendations for New gTLDs:
"The string evaluation process must not infringe the Applicant's
freedom of expression rights?"

Principle G was approved by both the GNSO and the ICANN Board of
Directors for this process, so ICANN staff is departing from the
clear direction of the GNSO and the Board of Directors and doing its
own thing.  This problem needs to be fixed.

Further, ICANN recommends that objections under this category be
decided by a SINGLE panelist, and specifically, an intellectual
property rights expert.  Many of these cases lie in the tension
between free expression and intellectual property, and asking an IPR
expert to make the decision gives the IPR side an enormous advantage
over the free expression interest.  This is not to say the panelist
will intend to favor the IPR side, it is just that the perspective
one holds depends on the shoes one has walked in; and the legal
training and experience of representing large IPR holders gives an
advantage to understanding (and sharing) that viewpoint over the other.


B.  On the Morality and Public Order Objection:

ICANN is leaning toward categorically banning 3 categories of
expression, which Kurt Pritz wrongly claims (with respect to 1
category) is international law.  Pritz said he surveyed "every
jurisdiction in the world" to come up with his list.

The 3 categories of expression to categorically ban are:
   1.  Incitement to violent lawless action.
   2.  Incitement to or promotion of discrimination based upon race,
color, gender, ethnicity, religion or national origin.
   3.  Incitement to or promotion of child pornography or other
sexual abuse of children.

Categories 1 and 3 (depending on interpretation) are legitimate
reasons for banning expression under international law.

On Category 1:
In the US, "incitement to violent lawless action" is illegal ONLY if
the violence is IMMEDIATE.  For example, it is perfectly lawful to
say in year 2008: "In the year 2050, we should cut-off the right arm
of politicians" because such a incitement does not lead to IMMEDIATE
violence.  So we need further clarification from ICANN on this issue.

Category 2 is NOT an accepted principle of international law.
Banning "meanness" is in clear contrast to well-settled US law and in
violation of an applicant's free expression rights (which is supposed
to be protected by GNSO Principle G).  (This is the "European
standard" for speech, but certainly not Universal around the world
and is illegal policy in the US, the jurisdiction in  which ICANN
resides).  So Kurt is flat wrong that this category is a "well-
settled principle of international law".  I asked Kurt to provide the
GNSO with the legal research he uncovered that came to the conclusion
that this category is illegal in the US.  He said he would (but he
has never followed-up with me in the past as promised), so may need
more needling from us on this issue.

On Category 3.
It is well-settled principle of international law that child
pornography illegal.  No argument about that.  But "incitement or
promotion" to engage in child porn is different than the porn
itself.  So there is a conflation between law on child porn itself
with law on statements about child porn.

Objections based on the Morality and Public Order objection will be
determined by the International Chamber of Commerce, so there is some
concern that non-commercial interests won't get a fair shake from
ICC, which represents and advocates on behalf the world's largest
businesses.  This needs to be better understood.


C.  "Community Objections"

Implementation recommendations for "communities" favor entrenched
institutions at the expense of innovators and start-ups.  Still no
definition of "community", so the community of "Internet users", and
the community of "dog owners", and the community of "blondes", and
the community of "anything you can imagine" is a "defined community"
according to ICANN and will have standing if there is an institution
to lodge the objection.


D.  Other Points:

1.  Even after the panel makes its decision to allow a domain name,
the ICANN Board of Director will still vote to approve or deny the
domain name.

2.  ICANN is spending $700,000 on a computer algorithm to help
determine "confusingly similar" of a domain.  There is wide
skepticism to this approach to begin with (since "confusion" is
always context dependent), but the exhorbitant expense for this
"help" adds insult to injury to domain name registrants who pay for
this nonsense.

3.  I've been told that ICANN staff will receive a large cash bonus
from ICANN for passing the implementation.  I don't know if this is
true or what the details are, but it is worth looking into, since
ICANN is supposed to bottom-up policy forum.

4.  The cost of applying for a new domain name keeps rising such that
only the wealthiest of institutions can ever afford the process and
actually obtain a domain name.  Sad - missed opportunity.
   a)  $100 fee to access the application system
   b)  $185,000 to apply for a domain name
   c)  $50,000 for Registry Services Review Fee
   d)  $TBD to file Objection to application (expect to be thousands
of $$)
   e)  $TBD to file Response to Objection (fee due from applicant!)
(expect to be thousands of $$)
   f)  $TBD: the panelists may appoint "experts" to be paid for the
parties equally (without the request of either party)

5.  Applicants are only given FIVE DAYS to file a Response to an
objection.  If the Applicant can't come up with the THOUSANDS of
dollars in 5 days to respond to an objection, the Response will be
disregarded (and the applicant loses).


References:
http://www.icann.org/en/topics/new-gtld-draft-rfp-24oct08-en.pdf
http://www.icann.org/en/topics/new-gtld-program.htm



IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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