Opposition to Imposition of URS by Contract

[Phil Corwin <psc@xxxxxxxxxxx>]

This comment by the Internet Commerce Association incorporates by reference and 
supplements the comment 
letter<http://forum.icann.org/lists/comments-travel-renewal-12may15/msg00011.html>
 we filed in regard to the proposed renewal registry agreement (RA) for .Travel 
on June 21st.
The issues are essentially identical, in that:

  *   The proposed RA for .Cat is completely identical to .Travel in regard to 
incorporating the URS in Section 2 of Specification 7.
  *   .Cat is a legacy gTLD created before and for which the URS is a 
non-relevant implementation detail of the current new gTLD program, and is not 
a Consensus Policy enforceable against all gTLDs and contracted parties.
  *   The notice published by ICANN regarding the proposed renewal RA clearly 
states that “ICANN has proposed” that the new gTLD RA be the starting point for 
contract renewal discussion and negotiation.


This issue of staff creation of de facto Consensus Policy arose several times 
at the just concluded ICANN 53 meeting held in Buenos Aires. At its opening 
session on Sunday morning, June 21st ICANN’s GNSO Council met with senior staff 
of ICANN’s Global Domains Division (GDD). Many Council members raised their own 
strong concerns about the staff action and its destructive impact on the GNSO’s 
role in making gTLD policy. GDD staff provided the weak response that “we did 
not push anyone to accept” the URS, maintaining that .Travel, .Pro, and .Cat 
registry operators had all “volunteered” to include it in their proposed 
renewal agreements. That justification strains credulity given that GDD staff 
proposed its inclusion as the starting point for registry agreement renewal.
As we stated in our comment letter regarding .Travel--
There can be no doubt that this is a staff attempt to create de facto Consensus 
Policy, as is clearly documented by the fact that the same objectionable 
provision appears in the proposed renewal RAs for 
.Cat<https://www.icann.org/public-comments/cat-renewal-2015-05-28-en> and 
.Pro<https://www.icann.org/public-comments/pro-renewal-2015-05-28-en>, both 
released for comment on May 28th. This evidences a deliberate and illegitimate 
attempt by contracting staff to create a series of precedents that would lead 
inevitably to the imposition of the URS on major legacy gTLDs such as .Org, 
.Net and .Com when they come up for renewal, despite the fact that the URS is 
not an ICANN Consensus 
Policy<http://www.icann.org/en/resources/registrars/consensus--‐policies>.
GDD staff also said they would change their position if the GNSO told them not 
to seek to impose new gTLD RPMs on legacy gTLDs - which is not only an 
impossibility for this proposed renewal RA, given the time required for the 
GNSO to establish policy via the standard PDP, but completely misunderstands 
and reverses the proper relationship between the stakeholders and staff. It is 
stakeholders who create ICANN policies through a bottom up process, which are 
subsequently administered by staff - not staff given free rein to initiate 
policy in a top down and unaccountable manner via contract negotiations until 
the stakeholders stop them.
The same concerns were raised when the Council met with the ICANN Board on the 
afternoon of June 21st, where they received a far more sympathetic reception. 
Several Board members agreed that staff should not initiate policy changes.
In addition to the concerns raised by Council members, and at community members 
at the Public Forum in Buenos Aires, the comments 
filed<http://forum.icann.org/lists/comments-travel-renewal-12may15/> on .Travel 
ran overwhelmingly against incorporation of the URS in the renewal RA.
Only two comments supported the action by GDD staff to propose it as a starting 
point:

  *   The Intellectual Property Constituency (IPC) stated that it “encourages 
Registry Operators to voluntarily go above and beyond the minimum rights 
protections.  Whether adding new restrictions against abusive registrations, 
implementing blocking or creating new dispute procedures, those best practices 
should be encouraged and do not require a PDP for TLD Operators to implement”.  
We strongly disagree that there is anything voluntary about a process in which 
a supplicant registry in need of having its contract renewed must negotiate 
with ICANN staff who propose that inclusion of specific RPMs be the starting 
point for negotiations.



The IPC also fails to recognize the difference between a new gTLD, in which 
potential registrants have clear notice of any supplementary RPMs, and a legacy 
gTLD in which registrants should expect that additional RPMs will be adopted 
through a standard PDP that creates Consensus Policy.



Further, the IPC’s claim that  “there is clearly no requirement that an RPM 
must become consensus policy before it can be adopted by a registry.  We have 
already learned that from Donuts and Rightside Registry, both of whom adopted a 
form of “blocking” as an RPM, which was also not consensus policy” completely 
misunderstands the critical difference between revenue-generating blocking 
policies promulgated by portfolio gTLD operators and dispute resolution 
policies. Blocking policies prevent domains from being registered in the first 
place and therefore have no impact on existing registrants, while  alterations 
in dispute resolution policies can result in an existing registrant having its 
domain suspended, extinguished or transferred.



We therefore believe that legacy gTLD registry operators are not free to create 
and adopt new RPMs that alter the rights of existing registrants at the time of 
contract renewal because there is no one in the negotiating room to speak for 
the due process rights of their registrants. Indeed, such negotiations take 
place behind closed doors and are not transparent to affected stakeholders.



  *   The new gTLD portfolio operator Donuts, which maintained that the STI-RT 
that created the URS “never considered” whether it “should not be included in 
legacy TLDs”. All we can say is that Donuts’ recollection is quite different 
from ours, as we recall this question being raised multiple times and receiving 
assurances from STI-RT participants and others involved in the development of 
the new gTLD RPMs that they would not and could not be imposed on legacy gTLDs 
absent a subsequent review, followed by a PDP which adopted them as Consensus 
Policy.


In closing, we repeat the conclusion of our comment letter regarding .Travel --
Consensus Policy regarding RPMs must be vetted within the community to assure a 
proper balancing of the interests and rights of both trademark owners and 
domain registrants.
In order to assure that balance two indispensable steps are necessary:

  *   The attempt to impose new gTLD RPMs on legacy gTLDs by contract must be 
withdrawn in recognition that such action is in violation of ICANN Bylaws. If 
staff is unwilling to retreat on this initiative then ICANN’s Board must assume 
responsibility and review all the issues at play, including compliance with the 
Bylaws, before any legacy gTLD RA with such a provision is made final.

  *   Any further modification of the new gTLD RPMs must be considered within 
the context of a full PDP. We are far past the implementation phase of the new 
gTLD program. Further, it is clear that the applicability of the RPMs to legacy 
gTLDs is now primed for discussion. Unless both RPM modifications and legacy 
gTLD applicability are considered within the PDP framework there is a 
substantial risk of a bait-and-switch policy process, in which RPMs are made 
applicable to legacy gTLDs and then substantially altered via a backdoor, 
non-PDP process.
In addition, we repeat the request that ICA made directly to ICANN’s Board at 
the Buenos Aires Public Forum -
First, we need a commitment that any further alterations of the new gTLD RPMs 
will be made through a standard PDP. We are far past the implementation details 
stage and it is now crystal clear that these decisions will implicate legacy 
gTLDs as well.
Second, if GDD staff ignores the overwhelming weight of comments and retains 
the URS in the final RAs for legacy gTLDs, you need to vote up and down on 
those RAs. You need to “own” that decision and in that way indicate whether you 
believe this GDD staff action is or is not acceptable.
We hope that GDD staff will recognize that they have overreached on these 
legacy gTLD contracts and that the proper action is to strike the RPMs adopted 
from the new gTLD program from them and leave that decision to the 
multistakeholder community.
If staff does not do the right thing then we will press for an up and down 
Board vote on this and the other affected contracts before they take effect.

Sincerely,
Philip S. Corwin
Counsel, Internet Commerce Association

Philip S. Corwin, Founding Principal
Virtualaw LLC
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