IPC comments

["Chicoine, Caroline G." <CCHICOINE@xxxxxxxxxxxxxxxxxx>]

The Intellectual Property Constituency (IPC) appreciates this
opportunity to comment on the proposed revised settlement agreement
between ICANN and Verisign, and in particular on the proposed revised
.com registry agreement that forms part of this settlement.
The IPC reiterates the comments made in its December 7, 2005 statement
and incorporates them herein by reference (See
http://www.icann.org/topics/vrsn-settlement/IPC-statement-re-VRSN-settle
ment-07dec05.pdf). 
With respect to the process for approval of new registry services, the
IPC is pleased to see that the revised .com registry agreement reduces
from 3 to 2 years the timeframe in which Verisign would categorically
not be subject to the procedure for approval of new registry services
(NRS) developed by the GNSO Council in accordance with the Policy
Development Process (PDP) in Appendix A of ICANN's By-Laws. However, the
IPC believes that Verisign's proposed immunity from the approved NRS
procedure for any length of time has not been justified. We believe
Verisign should be subject to this procedure from the Effective Date of
the Agreement, as are all other TLD registries, unless a specific
justification for a deviation can be articulated and justified. We also
strongly believe that this same NRS procedure should apply to new
registry services that involve the use of traffic data. The apparent
total exemption of such new services from any review procedure remains
unjustified, in our view. 
It is worth recalling that the PDP was created as a result of ICANN's
Blueprint for Reform
(http://www.icann.org/committees/evol-reform/blueprint-20jun02.htm)
which recognized that any process for names policy development must (i)
encourage broad, informed participation reflecting the functional,
geographic, and cultural diversity of the Internet; (ii) be open and
transparent; (iii) promote well-informed decisions based on
participation by affected and interested parties and, where appropriate,
expert advice; (iv) ensure that those entities most affected have an
appropriate role in the policy development process; and (v) encourage
bottom-up policy development. In fact, one of the PDP's first uses was
in connection with the very issue as to which Verisign would, under the
terms of the proposed revised agreement, be able to bypass it, namely
new registry services. Specifically, in late 2003, ICANN's Staff Manager
recognized the need for a predictable procedure for the introduction of
new registry services and recommended that the GNSO initiate a PDP on
this issue
(http://www.icann.org/gnso/issue-reports/registry-svcs-report-19nov03.ht
m). As support for this recommendation, the Staff Manager recognized the
diverse characteristics of new or modified services that had led to
different results for different requests, without a clear articulation
of the reasons for each decision. While we understand that the
SiteFinder service itself is carved out of the proposed revised
agreement, the fact remains that, were the proposed revised .com
registry agreement to go into effect as is, Verisign would be empowered
to unilaterally and without any review procedure roll out a new registry
service involving traffic data that was just as controversial as
SiteFinder. Indeed, for any other new registry service, no matter how
controversial, Verisign would be allowed to bypass the NRS review
procedure established via the PDP process. The potential for further
disputes involving ICANN, Verisign, and ICANN constituencies could be
significant. Surely this cannot be in ICANN's interests. 
As a result, the IPC strongly recommends that the proposed .com registry
agreement be amended to require Verisign to be subject to the NRS
procedure developed in the PDP for new registry services, including for
new registry services based on the use of traffic data, unless a
specific exception can be articulated and justified. 
Finally, we do not consider the statement that "Verisign has provided
confidential reports to ICANN" as responsive to our expressed concern
about how if at all Verisign has lived up to its obligations under
Appendix W of the existing agreement. This does not bode well for the
prospect that ICANN will improve on its current level of performance
with regard to contract compliance and enforcement. 
Submitted by Caroline G. Chicoine, Vice President of the IPC, on behalf
of the IPC.