Re: [bc-gnso] BC statement on IRT

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

NetChoice would support Ayesha's version of the BC consensus: that the IRT
report is a positive step forward.

Specific concerns (e.g., due process)  ought to be submitted individually,
as George has done so elegantly.  Others agreeing with George can
support/expand on that in their own individual submissions.
--Steve 


On 6/24/09 11:28 AM, "Ayesha Hassan" <ayesha.hassan@xxxxxxxxxx> wrote:

> 
> I thought the original brief statement reflected the discussion
> yesterday in the BC and the key is for members to submit their own
> comments to the consultation. My sense is the statement should be very
> brief so that members can express their own perspectives directly to the
> consultation process.
> 
> To help reach a statement we can all support, I propose the following:
> 
> "The BC recognizes the work and efforts of all those who participated in
> the IRT. The BC believes that this report is productive step forward in
> addressing several issues with respect to new gTLDs.
> 
> The BC urges its members to post their individual comments on the
> substance of the report at Public comment space
> http://www.icann.org/en/announcements/announcement-4-29may09-en.htm";
> 
> Regards,
> Ayesha
> 

> On Jun 23, 2009, at 7:24 PM, George Kirikos wrote:
> 
>> 
>> Hello,
>> 
>> We do not support that proposed BC statement on the IRT. We propose an
>> alternative and balanced statement as follows:
>> 
>> ----- start proposed statement ------
>> "The BC appreciates the effort of the IP constituency's work in
>> creating a proposal that would protect trademark holders interests.
>> However, much work remains to be done to ensure that the needs of
>> trademark holders are balanced against the needs of domain registrants
>> for certainty, predictability and due process. The BC looks forward to
>> working with the IP constituency, and other constituencies within the
>> GNSO on an improved version of the IRT's report, one that can achieve
>> consensus support of all stakeholders."
>> ----- end proposed statement ------
>> 
>> As we have stated previously, we have grave concerns about the IRT,
>> and the "answers" provided by the members of the IRT team have been
>> spurious. To give just two concrete examples (there are many more if
>> one reads our prior comments submitted in the official comment
>> periods):
>> 
>> a) No good reason has been provided as to why the IRT proposes that
>> *all* domain names, irregardless of age, should be subject to the URS,
>> especially given that markholders ultimately would want the URS to
>> apply to legacy TLDs such as com/net/org. The URS is an extraordinary
>> procedure that would take down a domain name with short notice (so
>> short that a registrant on vacation may not receive actual notice of a
>> complaint). Such an extraordinary procedure should be targeted only
>> towards the most abusive domain names, one where "time is of the
>> essence." Time is not of the essence if a domain name is 10 years old!
>> The onus should be on markholders to not delay in bringing complaints
>> if there is truly a matter that is "urgent" and requires the URS. We
>> proposed that the URS either apply only to domains younger than a
>> certain age (e.g. 6 months), or that the time to respond to complaints
>> be a function of the age of the domain (e.g. 15 days + the age of the
>> domain in months). Businesses and consumers require certainty and due
>> process, and a system like the URS as proposed that would threaten
>> their legitimate domain name, one that they've owned for years, denies
>> them both certainty and due process.
>> 
>> b) No good reason has been provided as to why the IRT proposes to
>> limit notification to registrants to only 2 emails and 1 letter by
>> post for the URS. Email is unreliable given the amount of spam that
>> exists, and international mail might not be received in time to
>> respond to a complaint, given the slow delivery times of the
>> international postal system. We specifically pointed to opt-in fax as
>> a highly reliable system to notify registrants of complaints, and the
>> IRT provides excuses that leave objective people incredulous. Footnote
>> 30 of the report stated:
>> 
>> "The IRT decided that such requirements would add significant
>> complexity and cost to the system due to time zones and national and
>> local laws regarding faxing and calling."
>> 
>> This is simply astonishing for the IRT to say, given that (a) the
>> faxes are 100% opt-in, and (b) the UDRP has been providing fax
>> notification for over 10 years without issues. The cost to send a
>> 1-page fax notification of a complaint (using email to fax gateways)
>> is on the order of 10 cents, far below the postal delivery stamp fees.
>> 
>> A legitimate URS complaint by a markholder will not be impacted if the
>> registrant receives proper and timely notification (actual notice) by
>> fax. The URS was supposedly intended for "clear cut" cases, and
>> notification shouldn't impact the registrant's ability to defend a
>> "clear cut" case of abuse.
>> 
>> However, illegitimate and frivolous URS complaints with weak claims
>> that hope to win by default due to lack of registrant notification
>> will greatly benefit by lack of fax notification, lack of actual
>> notice. A legitimate registrant will strongly defend their domain name
>> and is hurt by lack of the ability to respond and prepare a defence.
>> 
>> The only logical conclusion is that the IRT has intentionally acted to
>> put the rights of illegitimate and frivolous URS complainants with
>> weak claims ahead of legitimate domain registrants with strong
>> defences, by putting up spurious obstacles to the domain registrants
>> receiving actual notice and due process. This is no surprise given the
>> IP's pro-complainant dominance of the IRT process.
>> 
>> While the IRT members posture in public that their report was a
>> "compromise" I hope it is clear from just the above two cases (and
>> there are more) that it truly was not any compromise, but was an
>> extreme and unbalanced report.
>> 
>> Legitimate domain registrants like my company and others in the BC and
>> other constituencies are prepared to work with the IP constituency to
>> come up with a balanced solution within the GNSO process. But, until
>> such time, the IRT report should continue to draw skepticism within
>> the ICANN community, and be rejected.
>> 
>> Sincerely,
>> 
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>> 
>> P.S. One can read our early substantial comments on the IRT, indeed
>> with novel approaches (such as the concept of easements), that were
>> ignored by the IRT:
>> 
>> http://forum.icann.org/lists/irt-draft-report/msg00000.html
>> http://forum.icann.org/lists/irt-draft-report/msg00015.html
>> http://forum.icann.org/lists/irt-draft-report/msg00016.html
>> http://forum.icann.org/lists/irt-final-report/msg00000.html