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

Sun Nov 2 19:24:49 CET 2008

Dear Robin and all,

following Robin's email here are some initial comments on the new gTLD Policy implementation plans. I read the 'New gTLD Program: Draft Applicant Guidebook' and I personally think this is by far the most provocative action of ICANN so far.

First of all, I find the Policy extremely complicated and beaurocratic at best. In the worst case scenario (the application presents technical and other policy-related issues - best case scenario the applicant has a process comprised of 4 stages) there are 7 stages in each of which the applicant will have to pay a fee, raising substantially this way the revenue that ICANN will be generating through this process. The Draft presents the various stages as necessary for the 'stability and security of the DNS', whilst in reality these stages seems to allow ICANN to have full control over who will eventually be granted a new gTLD.
One of the most worrying issues that the new Policy generates is the amount of discretion afforded to ICANN when researching the decisions as well as the Terms and Conditions which exclude any sort of liability for ICANN, its decision-making processes and the decisions they will ultimate reach.  Throughout the Draft words and phrases like 'sole and absolute discretion' are repeated; these concern issues such as the evaluation process of an application, the possibility that ICANN has to terminate the registry agreement, to refund the fees to an unsuccessful applicant, etc. At the same time, ICANN is excluding any sort of liability for various issues that could raise serious concerns: although ICANN says that it will offer a very secure system to 'ensure that confidential information remains confidential', at the same time, they 'offer no assurances that these procedures will keep an applicant's data confidential and secure from access by unauthorized third  parties'. This raises issues of privacy and protection of personal information with ICANN washing its hands off and offering no indication as to where the responsibility will rest should such an issue arise. More worryingly terms 6 of the terms and conditions states: "APPLICANT AGREES NOT TO CHALLENGE, IN COURT OR IN ANY OTHER JUDICIAL FORA, ANY FINAL DECISION MADE BY ICANN WITH RESPECT TO THE APPLICATION, AND IRREVOCABLY WAIVES ANY RIGHT TO SUE OR PROCEED ON THE BASIS
OF ANY OTHER LEGAL CLAIM AGAINST ICANN AND ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION. APPLICANT ACKNOWLEDGES AND ACCEPTS THAT APPLICANT’S NONENTITLEMENT TO PURSUE ANY RIGHTS, REMEDIES, OR LEGAL CLAIMS AGAINST ICANN OR THE ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION SHALL MEAN THAT
APPLICANT WILL FOREGO ANY RECOVERY OF ANY APPLICATION FEES, MONIES INVESTED IN BUSINESS INFRASTRUCTURE OR OTHER START-UP COSTS AND ANY AND ALL PROFITS THAT APPLICANT MAY EXPECT TO REALIZE FROM THE OPERATION OF A REGISTRY FOR THE TLD." This provides no leverage to the applicants against ICANN and leaves ICANN's decisions unchallenged by legal authorities.
The proposed dispute resolution system raises other crucial issues. First of all, Robin's points are all valid - there is no rooms (or does not appear to be any, at least) for freedom of expression and its manifestation on the Internet. When it comes to the legal rights section most of these recommendations opposed traditional and long-standing  principles of trademark law. It monopolizes verbal territories exclusively to one rights' owner contrary to what trademark law has sought to prevent over the past years. In the same manner, if ICANN allows registrations of generic names as gTLD extension, serious concerns about anti-competitive practices that this practice will generate are equally not addressed. Of course, the issue of WIPO being used as the dispute resolution provider is by itself also worrying and takes us back to the bias that have been and still are identified in the context of the UDRP. More issues contradicting trademark law arise as well.
The morality and public order issue is also very concerning since it appears that even ICANN does not know what exactly to do. It provides too much power to ICANN and, we have to take into consideration, the different moral standards for different nations, which do not necessarily constitute illegal activities. Even within nations political parties differ in what they consider moral standards (remember the .xxx debate) and it is a question as to which interests ICANN will eventually sacrifice its decisions.
When it comes to the community category, I agree fully with Robin - it is very vague and no definition is provided.
The other issues of short deadlines and unbearable costs for eventually being granted the gTLD also add to this new policy and the bad precedent it sets for ICANN and its actions. I strongly believe that we should place upon ICANN as much resistance as possible towards the implementation of this Policy, unless these issues are clearly addressed and convincingly resolved.

To those of you who are in Cairo I hope you enjoy it and good luck.

Regards

Konstantinos

________________________________________
From: Non-Commercial User Constituency [NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Robin Gross [robin at IPJUSTICE.ORG]
Sent: Sunday, November 02, 2008 4:13 PM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: A few points on ICANN's new gTLD policy implementation plans

I forgot to add the unfortunate point that the panelists of a dispute resolution proceeding can decide to keep their decisions CONFIDENTIAL.

Yikes.  What about transparency and accountability that ICANN always claims to be full of?   Imagine if case law was kept secret and unavailable to the public.  I guess ICANN is full of something else instead.....

Robin

On Nov 2, 2008, at 8:00 AM, Robin Gross wrote:

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<mailto:robin at ipjustice.org>

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<mailto:robin at ipjustice.org>