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Re[2]: [bc-gnso] gTLD global outreach programme
- To: Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>
- Subject: Re[2]: [bc-gnso] gTLD global outreach programme
- From: Michael Castello <michaelc@xxxxxxxxxxxx>
- Date: Sun, 12 Jul 2009 12:22:03 -0700
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<p>Hello Phil,</p>
<p><br></p>
<p>I read your comments and agree. ICANN protocol appears to be a smoke screen.
It seems to me that ICANN has created an onion skin type of bureaucracy that on
its surface appears to give the impression that it is inclusive in its decision
making with the public and constituencies. In reality there appears to be a
nucleus amongst its ranks that decide future agenda and policy. Whomever makes
the funding decisions for ICANN may well be those that control it.</p>
<p><br></p>
<p>It is mind boggling to see the time and effort many put into trying to help
ICANN's future growth just be ignored and diminished in their capacity. I do
hope future ICANN President Rod Beckstrom gives ICANN the direction it badly
needs. </p>
<p><br></p>
<p>Michael Castello</p>
<p>CEO/President</p>
<p>Castello Cities Internet Network, Inc.</p>
<p><a class=rvts6 href="http://www.ccin.com";>http://www.ccin.com</a></p>
<p><a class=rvts6 href="mailto:michael@xxxxxxxx";>michael@xxxxxxxx</a></p>
<p><br></p>
<p>--</p>
<p>Saturday, July 11, 2009, 9:40:50 AM, you wrote:</p>
<p><br></p>
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<p><span class=rvts7>I am very puzzled, and indeed disturbed, by this
Outreach Program as well as by why ICANN is undertaking the considerable
expense of facilitating it.</span></p>
<p><br></p>
<p><span class=rvts7>The explanation of the events (at
http://www.icann.org/en/topics/new-gtlds/consultation-outreach-en.htm)
states:</span></p>
<p><br></p>
<p><span class=rvts8>With the expected introduction of New generic top-level
domains (New gTLDs) into the market place in 2010, ICANN is hosting a series of
live events and webinars starting June 2009. These events are designed in a
wide range of formats to address different levels of knowledge.</span></p>
<p><span class=rvts8>The purpose of these events is to explain the Program,
share the progress that ICANN has made to-date </span><span
class=rvts9>and to receive feedback from the community that will facilitate
shaping the program.</span></p>
<p><span class=rvts8>These events are geared towards businesses small and
large, trademark experts, professional associations, consumer and other civil
society groups, members of the domain name industry, government officials,
potential applicants and the ICANN community. All events are free of charge,
but pre-registration is required.</span></p>
<p><span class=rvts9>During the upcoming consultation sessions in New York (13
July) and London (15 July), attendees will have the chance to hear from ICANN
staff and others who have contributed to the ongoing process, including members
of the Implementation Recommendation Team (IRT) that submitted their report to
the ICANN Board on measures to protect intellectual property.</span><span
class=rvts8> The proposed events in Hong Kong (24 July) and Abu-Dhabi (4
August) will mainly focus on the New gTLDs and Internationalized Domain Names
(IDNs) programs details. The main language of the events is English. (emphasis
added)</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>I will be attending the NYC event, and it and London are
billed as "Live Consultations", described as follows: </span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts8>Live consultations will engage the global Internet
community to discuss workable solutions to outstanding issues on specific
aspects of the program, particularly trademark protection and malicious
behavior. These sessions are aimed at people that have been closely following
the Program development and still have concerns.</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts7>The Hong Kong and Abu-Dhabi programs are more general
"Live Outreach" events meant for a more general and less well informed
audience; as no agenda has yet been posted for either event it is not possible
to know what shape they will take.</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>A review of the Agenda for the NYC event ( </span><a
class=rvts11
href="http://www.icann.org/en/topics/new-gtlds/ny-agenda-speakers-13jul09-en.pdf";>http://www.icann.org/en/topics/new-gtlds/ny-agenda-speakers-13jul09-en.pdf</a><span
class=rvts10>) reveals that the vast majority of its focus is on trademark
protection. The time breakdown is as follows:</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>General introduction -- 30 minutes</span></p>
<p><span class=rvts10>Trademark protection (IRT Report) -- 4 hours 45
minutes</span></p>
<p><span class=rvts10>Malicious behavior -- 1 hour 30 minutes</span></p>
<p><span class=rvts10>Economic Impact & Root Scaling Security and Stability
-- 45 minutes</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>In other words, of the entire 7.5 hours of the program,
more than 60% is devoted to trademark protection.</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>Given this heavy emphasis on trademark protection -- and
given the clear failure of the IRT report to garner consensus support from the
community, as was apparent to anyone who attended the Sydney meeting or has
reviewed a sample of the comments posted at
http://forum.icann.org/lists/irt-final-report/index.html -- one would
have hoped that ICANN would seek to present a balanced presentation,
acknowledging that those who have presented well thought out criticisms of
aspects of the IRT Report "have contributed to the ongoing process" just as
much as members of the IRT. But a review of the scheduled speakers shows that
all but one is an IRT member or other person who will be strongly supporting
its report; the only critic I can identify is Richard Tindal of Demand Media,
and their principal concern is the proposed GPML. There is not a single speaker
likely to criticize the very controversial URS, which critics (like myself, on
behalf of ICA) have charged constitutes not only a major and unjustifiable
diminution of registrant rights currently available under the UDRP but is also
a major new Policy initiative, and not a mere technical implementation detail,
and therefore cannot be adopted outside the normal PDP process overseen by the
GNSO. </span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>So my first question relates to why there is no adequate
balance to this panel on trademark protection that recognizes the very real
splits within the ICANN community on the IRT report? How are attendees
adequately informed by such a one-sided presentation?</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>Another question is raised by the claim in the program
description that these events will "</span><span class=rvts12>receive feedback
from the community that will facilitate shaping the program". </span><span
class=rvts10>What's going on here? The IRT was disbanded after delivering its
Report, and that Report was thoroughly debated in Sydney. The comment period
closed this past Monday. So, from a procedural standpoint, any "feedback"
received at these events, in which critics of the report are relegated to the
audience, should have no effect on "shaping the program". As the NYC
Consultation is aimed at individuals who have been "closely following the
program development" all these individuals were either already heard in Sydney
or had an opportunity to comment officially. </span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>The Chair of the GNSO Council filed a comment, in her
personal capacity, stating that the IRT was an attempt by trademark interests
to have a second bite at the apple, to put proposals back in the mix that had
already been rejected in the GNSO consensus process, and that adoption of the
URS as a mere implementation detail would destroy the legitimacy of ICANN's
bottom-up consensus process:</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts8>...the work of the IRT, if it goes directly from the IRT
to</span></p>
<p><span class=rvts8>implementation will not only constitute new top down
policy but some</span></p>
<p><span class=rvts8>parts of it will be new policy that the GNSO specifically
decided there</span></p>
<p><span class=rvts8>was no consensus for making. Going beyond the consensus
making purview</span></p>
<p><span class=rvts8>of the GNSO to create policy as part of the implementation
cycle of the</span></p>
<p><span class=rvts8>program not only directly contradicts the policy made by
the GNSO but</span></p>
<p><span class=rvts8>also endangers the legitimacy of the entire consensus
policy process.</span></p>
<p><span class=rvts8>Further one of the recommendations, the Uniform Rapid
Suspension</span></p>
<p><span class=rvts8>System, constitutes an entirely new policy mechanism that
affects</span></p>
<p><span class=rvts8>previous policy, the UDRP, without proper policy
review</span><span class=rvts7>. (</span><a class=rvts13
href="http://forum.icann.org/lists/irt-final-report/pdfNhBqKA4CfN.pdf";>http://forum.icann.org/lists/irt-final-report/pdfNhBqKA4CfN.pdf</a><span
class=rvts7>) </span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>So do trademark interests not just get a second bite at
the apple outside the GNSO consensus process, but also get extra time after the
closing of the formal comment period to further "shape" the process? This is
not only wrong but silly -- from a substantive viewpoint, depending on who
turns out, the NYC and London events can only demonstrate one or both of the
following propositions:</span></p>
<ul style="text-indent: 0px; margin-left: 40px; list-style-position: outside;">
<li><span class=rvts10>trademark interests strongly support the
recommendations in the IRT report, produced by a group which had its membership
and agenda controlled by the IPC</span><span class=rvts7> </span></li>
<li><span class=rvts10>other members of the ICANN community have strong
reservations about or outright opposition to virtually every aspect of the IRT
Report, including whether various proposals contained within it are major new
policy initiatives that require a formal PDP process</span></li>
</ul>
<p><span class=rvts10>Well, we already knew all that. didn't we? I shall be
very surprised if any feedback is received at the NYC event that has not
already been fed to ICANN in Sydney or through the comment process.</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>A last question would be how much $ is ICANN spending to
put on these events and to fly various staff around the world to them? And are
any of the other speakers having their expenses covered by ICANN, just as
members of the IRT received travel support at a time when ICANN tells other
constituencies and supporting organizations that it lacks funds for their
monetary support requests?</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>To put my comments here in context, I invite you to
visit </span><a class=rvts11
href="http://www.internetcommerce.org/node/198";>http://www.internetcommerce.org/node/198</a><span
class=rvts10> which contains the text of ICA's comment letter as well as
an introduction that documents the IRT Report dissent and criticism coming from
key ICANN constituencies. ICA supported some aspects of the Report with proper
tweaking; while we took strong exception to the URS we suggested an expedited
PDP that could put in place balanced UDRP reforms prior to the launch of any
new gTLD in the fourth quarter of 2010 -- this process could directly benefit
trademark owners by addressing many .com problems, which is where the vast
majority of their current infringement issues arise and are likely to keep
doing so in the future. And, more important, it would respect and not run
roughshod over ICANN's policymaking process.</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts10>In closing, let me note two other news items of the last
week to put this whole IRT debate in broader context:</span></p>
<ul style="text-indent: 0px; margin-left: 40px; list-style-position: outside;">
<li><span class=rvts14>On July 8th Mary Kay Cosmetics sued Yahoo! for trademark
infringement (</span><a class=rvts15
href="http://www.thedomains.com/2009/07/09/another-day-another-suit-yahoo-sued-trademark-infringement-in-e-mail-advertising/";>http://www.thedomains.com/2009/07/09/another-day-another-suit-yahoo-sued-trademark-infringement-in-e-mail-advertising/</a><span
class=rvts14> ) alleging that Yahoo! inserted links to unauthorized
resellers in e-mails sent by Mary Kay salespeople send to their customers. I
note this not to endorse the allegations but simply to observe that that
trademark infringement suits are a growth industry and that even strong
infringement critics and IRT report supporters like Yahoo! can find themselves
in the cross-hairs. </span></li>
<li><span class=rvts14>Comcast has just announced a "Domain Helper Service"
(</span><a class=rvts15
href="http://domainnamewire.com/2009/07/09/comcast-starts-typosquatting-domain-names/";>http://domainnamewire.com/2009/07/09/comcast-starts-typosquatting-domain-names/</a><span
class=rvts14> ) that serves up ads against nonexistent domain names,
mostly typos of legitimate trademarked names, thereby following in the
footsteps of other major ISPs. If these names were registered as individual
domains they might well be subject to UDRP or URS actions, but ISPs contend
that serving up ad pages (primarily supplied by Google and Yahoo!) and not 404
error messages is a customer services and not typosquatting. So I wonder if we
can get ironclad pledges from members of the ISP constituency (many of whom are
strong IRT report proponents) that they will not serve up ads against any
domain that has been suspended in a URS action? And if they won't do that, then
why are we taking the risk of tearing the ICANN community apart and destroying
its policy-making process? After all, if an Internet user sees the same ads
when they mistype micosofft.web what's the difference if a domain owner or an
ISP is pocketing the PPC income that may be generated?</span></li>
</ul>
<p><span class=rvts10>If you've read this far, thanks for your time on this
weekend.</span></p>
<p><span class=rvts7> </span></p>
<p><span class=rvts7> </span></p>
<p><br></p>
<p><br></p>
<p><br></p>
<p><span class=rvts7>Philip S. Corwin</span></p>
<p><span class=rvts7>Partner</span></p>
<p><span class=rvts7>Butera & Andrews</span></p>
<p><span class=rvts7>1301 Pennsylvania Ave., NW</span></p>
<p><span class=rvts7>Suite 500</span></p>
<p><span class=rvts7>Washington, DC 20004</span></p>
<p><span class=rvts7>202-347-6875 (office)</span></p>
<p><span class=rvts7>202-347-6876 (fax)</span></p>
<p><span class=rvts7>202-255-6172 (cell)</span></p>
<p><span class=rvts7>"Luck is the residue of design." -- Branch
Rickey</span></p>
<p><span class=rvts7>________________________________________</span></p>
<p><span class=rvts7>From: owner-bc-gnso@xxxxxxxxx [owner-bc-gnso@xxxxxxxxx] On
Behalf Of BC Secretariat [secretariat@xxxxxxxxxxxx]</span></p>
<p><span class=rvts7>Sent: Thursday, July 09, 2009 11:12 AM</span></p>
<p><span class=rvts7>To: BC gnso</span></p>
<p><span class=rvts7>Subject: [bc-gnso] gTLD global outreach
programme</span></p>
<p><br></p>
<p><span class=rvts7>Dear Members</span></p>
<p><br></p>
<p><span class=rvts7>Please find below a link to information about the ICANN
gTLD global outreach</span></p>
<p><span class=rvts7>and consultation programme</span></p>
<p><br></p>
<p><span class=rvts7>Best wishes</span></p>
<p><span class=rvts7>Gary</span></p>
<p><br></p>
<p><span class=rvts7>http://www.registration123.com/ICANN/GTLD</span></p>
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