RE: [bc-gnso] Important to hear from members -- Reconfiguring the URS?

[Phil Corwin <psc@xxxxxxxxxxx>]

In response to John's inquiry - I'm not the one characterizing this as a policy 
matter, I am the one reporting that ICANN has stated it will develop "effective 
and feasible policy...rules" for post-delegation RPMs, and that it intends to 
"reconfigure" (as in revisit and alter) the URS.

The relevant provisions in the draft budget are:

Rights Protection Mechanisms. Implementation of additional post-delegation 
rights protection mechanisms will take place. These efforts include work with 
the community to develop effective and feasible policy and administrative 
rules, and the engagement of one or more Uniform Rapid Suspension (URS) 
providers.

...and...

Uniform Rapid Suspension (URS) - $175K
At present there is a significant gap between the features specified for the 
URS procedure and the desired cost. In order to bridge this gap we will: hold 
two summit sessions to reconfigure the URS to arrive at a lower cost model (one 
session in FY12 budget and another in this FY13 plan), conduct a process to 
develop and finalize URS Model in consultation with current UDRP providers and 
community members; and conduct RFP based on URS Model and select URS providers. 
The goal is have a URS program in place and providers contracted and onboard by 
June 2013.

The first reference characterizes this as a process to develop policy rules, 
and differentiates that from administrative rules (the latter falling within 
the implementation category).

The second reference characterizes their goal as reconfiguring URS to meet the 
promised price point, and to put out a Request for Proposals (RFP) from 
prospective providers based on that newly reconfigured RFP model, not on the 
current model.

Their intent clearly goes beyond mere implementation of what is in the 
Guidebook now - in fact, they explicitly state that there is a "gap" between 
the features of the URS as it now stands and the low filing fee that was 
promised. (Those 'features' are fairly fundamental, so it's not clear to me how 
much they can be tinkered with.)

I also want to point out that what's in the Budget is very different from the 
responses Kurt gave to questions I raised about URS implementation at the last 
two ICANN meetings. (I have taken it as a given that URS will, in fact must, be 
in place around the time that the first new gTLDs get beyond sunrise sales and 
open domain purchases to the general public - and my goal in raising questions 
has been to assure that sufficient time and thought  is afforded to URS 
implementation so that  it is a credible and effective mechanism that affords 
adequate due process to both parties. Also, in an aside, if ICANN fails to meet 
its "goal" of having the program and providers in place by June 2013 that could 
negatively impact the timing of new gTLD launches.)

In Dakar Kurt conceded that arbitration providers like WIPO and NAF had 
informed ICANN that they would not bid on any URS RFP because the pricing would 
not accommodate the fees they pay to qualified experts. He also stated that an 
Implementation Advisory Group (IAG) would be established for URS, just like the 
one that was already up and running for the Trademark Clearinghouse, within a 
month - that obviously never happened.

In San Jose he stated that an RFP would be issued within a month to solicit URS 
providers. That statement has now been negated by the Budget document, which 
indicates that the RFP is many, many months away, after the two summits have 
been held and there is further consultation with current UDRP providers and the 
community, and will only be issued after the URS has been reconfigured into a 
significantly revised model. It is unclear from this statement whether the 
entire ICANN community will be able to participate in those Summits or whether 
they will be restricted to a narrower group of participants.

Adding all that up, I think it's pretty clear that what is intended for URS is 
not mere implementation but substantive recasting that falls within the policy 
category.

Final policy thought: I think it is axiomatic that URS must be narrowed if 
achieving the promised $300-500 price point is ICANN's top priority and is to 
be realized (although I am skeptical that can be met in any circumstances, 
given what expert trademark attorneys charge for their time - even a "slam 
dunk" case requires some time to research and affirm the complainant's rights, 
evaluate any registrant response, and prepare a report on the decision). The 
filing fee for a single domain, single panelist UDRP is about $1300; if the URS 
were to be "reconfigured" (as some want, but ICA opposes)  to lower the 
complainant's burden of proof to the same as that for UDRP then the 
consideration a case must be afforded by the expert increases because it 
contemplates cases that are more shades of grey than black and white - so that 
is incompatible with pricing it at less than one-half or even less than 
one-quarter of the current UDRP filing fee. The promised fee range does not pay 
for even one hour of an expert's time - and the arbitration provider must add 
on their own administrative costs.

Final process thought: In a time of continuing economic stress holding these 
URS "summits" on a date and at a location other than in conjunction with the 
Prague and subsequent full ICANN meetings imposes an economic burden that will 
likely prevent many who might wish to participate from doing so (assuming they 
are allowed to, as it's not clear that the full community will be invited or 
welcome). I assume they will provide an opportunity for remote participation, 
but that's never as informative or effective.




Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
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Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
Marilyn Cade
Sent: Friday, May 04, 2012 9:26 AM
To: John Berard; Steve Delbianco; Chris at Andalucia; Elisa Cooper; bc - GNSO 
list
Cc: Zahid Jamil
Subject: [bc-gnso] Important to hear from members -- Reconfiguring the URS?

Thanks, John, the discussion about URS needs to include the full BC.

Many members have concerns, and I will note that that in the IRT last approach, 
some BC members were excluded from participation, in favor of others in the 
community, so we were not balanced in our BC participants. That was a serious 
challenge within the BC.

Whether a URS; WHAT URS, and HOW URS is a serious topic to more than a few BC 
members.

As to whether it is implementation/ and  how that discussion progresses, versus 
if it is policy, is not clear, right now.

What was the policy recommendation that created it?
Should that policy recommendation be revised?
Is this a change in how to implement a policy recommendation or a proposal to 
change/modify a policy recommendation?

Finally, Summit? What is that? What are the parameters? Did the 
SO/AC/SG/Constituencies support such a budget proposal, and how and who would 
be funded to participate?

The IPC may love this; the BC and ISPCP need to study it.

As to what is 'returned' to Council to provide policy advice on, this is a 
seriously challenging area for us, I fully agree.
We  do want to hear from our broader membership on first this particular issue, 
and then we will talk further in the BC, probably in Prague, on 'what is policy 
and what is implementation'. I think that we all need to develop clarity on 
that for future.

Whether the BC would take up a further policy clarity discussion on that latter 
topic would then come from Steve after the BC members offer views.

Short term: My view on this for now: I want to see a staff discussion doc that 
explains the problems. Curtailing the URS and making it less useful doesn't 
excite me. paying a bit more an having useful option -- willing to discuss and 
understand. ICANN staff seem headed in a direction against that. Personal view: 
pay more/have a viable option. IF not, then no use, so don't proceed with URS.

PERSONAL views only in that view. Discussion from informed members critical for 
next 36 hours.



Marilyn Cade, BC Chair

________________________________
Subject: Fwd: [council] Reconfiguring the URS?
From: johnberard@xxxxxxx<mailto:johnberard@xxxxxxx>
Date: Thu, 3 May 2012 16:09:38 -0400
CC: zahid@xxxxxxxxx<mailto:zahid@xxxxxxxxx>
To: marilynscade@xxxxxxxxxxx<mailto:marilynscade@xxxxxxxxxxx>; 
sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>; 
chris@xxxxxxxxxxxxx<mailto:chris@xxxxxxxxxxxxx>; 
elisa.cooper@xxxxxxxxxxxxxxx<mailto:elisa.cooper@xxxxxxxxxxxxxxx>
Do we agree with Phil that this is a policy matter?  My instinct is to say it 
is not, but...

Berard

Sent from my iPhone

Begin forwarded message:
From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx<mailto:Jeff.Neuman@xxxxxxxxxx>>
Date: May 3, 2012 2:09:09 PM EDT
To: "council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>" 
<council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: [council] Reconfiguring the URS?
All,

Thanks to Phil Corwin for catching this, but buried in the new budget document 
(http://www.icann.org/en/news/public-comment/op-budget-fy13-01may12-en.htm) 
just put out for comment is a note on "reconfiguring" the URS.  Excerpt 
provided below.   I guess they could not find any URS providers that could do 
it for the costs that they had projected, so ICANN is holding 2 summits to work 
on a new model.  My question for the Council, is whether this is really a 
policy issue that should be referred back to the GNSO Community as opposed to 
having  ICANN on its own resolving after holding 2 summits.  Given the 
controversy around this over the past few years, any tweaks to the URS should 
probably go back to the community in my opinion.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Uniform Rapid Suspension (URS) - $175K
At present there is a significant gap between the features specified for the 
URS procedure and the desired cost. In order to bridge this gap we will: hold 
two summit sessions to reconfigure the URS to arrive at a lower cost model (one 
session in FY12 budget and another in this FY13 plan), conduct a process to 
develop and finalize URS Model in consultation with current UDRP providers and 
community members; and conduct RFP based on URS Model and select URS providers. 
The goal is have a URS program in place and providers contracted and onboard by 
June 2013.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs
21575 Ridgetop Circle, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
jeff.neuman@xxxxxxxxxxx<mailto:jeff.neuman@xxxxxxxxxxx>  / 
www.neustar.biz<http://www.neustar.biz/>

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