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

[Milton L Mueller]

Robin

Thanks so much for this summary. On the incitement issue, I understand
and agree with your statement that it is not illegal under U.S. law;
indeed I think your statement may be a little weak. My understanding of
incitement tells me that it is literally impossible for a TLD string to
"incite." Perhaps if there is a legal expert here they can tell me how
ANY top level domain strong of 2 - 8 letters can be categorized as
inciting immediate violence in a specific place at a specific time. Even
".killnow" would not necessarily incite - it might be a joke site for
all we know. This is important because incitement is so specific that it
shows that what the policy is really targeting is the CONTENT of web
sites, not the names.

--MM

 

________________________________

From: Non-Commercial User Constituency
[mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Robin Gross
Sent: Sunday, November 02, 2008 11:00 AM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: [NCUC-DISCUSS] A few points on ICANN's new gTLD policy
implementation plans

 

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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