ICANN IRT Final Report is an abomination and wholly unbalanced

[GeorgeK]

The IRT final report was published on the ICANN website a few hours ago. It is basically a wish-list for TM holders, and could be used by overreaching TM lawyers to attack valuable domain names owned by legitimate good faith registrants.

http://www.icann.org/en/announcement...29may09-en.htm

(new comments at http://forum.icann.org/lists/irt-final-report and old ones can be seen at http://forum.icann.org/lists/irt-draft-report/ )

Here's a copy of our initial comments on this final report:

----- start of comments ----------
I was holding out hope that the IRT would actually take into account the public comments of the non-IP world and create a balanced report. We made extensive comments in good faith that reflected the needs of responsible registrants:

http://forum.icann.org/lists/irt-dra.../msg00000.html
http://forum.icann.org/lists/irt-dra.../msg00015.html
http://forum.icann.org/lists/irt-dra.../msg00016.html

(the 3rd link in particular discussed a novel approach that would protect ALL registrants from new gTLD confusion at the top level in an elegant manner, and was superior to the rehash of old ideas produced by the IRT)

I just finished reading the final report and frankly it is an abomination, showing total disregard for balanced solutions that protect the rights of legitimate registrants. Trademark trolls who wish to reverse hijack valuable domain names would be cheering at this report, if it was implemented without significant changes.

The URS in particular is an extremist view of trademark rights, tilted in favour of IP interests compared to the UDRP and beyond what is protected or recognized by law and due process. It also obfuscates the dual requirement of BOTH bad faith use AND registration (there are lots of inconsistencies in the language that seek to weaken the standard to make it "OR" instead of "AND"). The level of defaults will be even higher than the UDRP simply because good faith registrants never receive actual notice of complaints. Even faxes were considered too expensive! A 1 page fax, using email-to-fax technology (so it can easily be automated by the URS provider) would cost less than $1 ANYWHERE in the world! The IRT team should try sending registered letters in a statistically valid sample size and measure how long it takes them to be delivered to different parts of the world -- it can be more than a week, even from the USA to Canada, let alone from Europe to Canada. And the URS was said to be a "higher burden" than the UDRP, yet no consideration was given to the creation date of the domain name! Restricting the URS to recently registered domains would have demonstrated that the IRT was showing balance, i.e. only wanting to cover "clear cut" cases of abuse. Frankly, the IRT team is demonstrating that their tactics and extreme positions can be even worse than those of the cybersquatters that they decry and detest.

I will do a detailed deconstruction of the final report in the coming weeks (there are more pressing comments required by the NTIA first), however simply re-read the comments that I and others submitted previously. They were completely ignored.
-------- end of comments -----

I encourage all to read the report, and to submit comments.

[katherine]

Thanks George. I'm reviewing the comments now.
These days I think government and icann share one common trait: they are the problem.

[GeorgeK]

[I submitted a new comment, as below]

Just a quick followup, I believe that this report, if implemented as policy rises, to the level of unconscionability in legal terms:

http://en.wikipedia.org/wiki/Unconscionable

What will happen, IRT team, when legitimate registrants pre-emptively sue ICANN, VeriSign/PIR (no one cares about new gTLDs, but they do care about .com/net/org), and the URS providers on the day after any URS policy goes into effect, as that would be the only mechanism available to "white-list" valuable domains and websites that have been registered and used in good faith by legitimate companies to prevent them from being disrupted and subject to the egregious lack of due process in the URS? Some folks like to take 2 week holidays, especially when they've owned a domain for 10 years! Because the IP Tort Bar

http://online.wsj.com/article/SB124121851177078835.html

was too greedy, asking for too much, they might actually end up getting nothing at all (or even facing damages) when everything gets through the courts. Take a look at the .biz lottery, if you need a lesson in history. Make sure all your ducks are in a row.

From the Wikipedia article,

"Usually for a court to find a contract unconscionable the party claiming unconscionability will have to prove both that there was a problem with the substance of the contract and the process through which that contract was formed. The substantive problem will usually be the consideration, but could also be the terms, interest payments, OR OTHER OBLIGATIONS THE COURT FINDS UNFAIR." (emphasis added)

You can take this letter as notice that ICANN should preserve all records that exist of the IRT's secret deliberations (including all emails, MP3 recordings, transcripts, etc.), and IRT members may expect to be called as witnesses in order to demonstrate the "process" through which that contract was formed (and in particular the history). At least the IRT members can get more free travel, being deposed and testifying in court. IRT members are used to being complainants and attacking others, and it would be interesting to see if their defence is as good as their offence.

Here's a copy of an email I just sent out to both GoDaddy and NSI (the only 2 registrars who had reps on the IRT team). Feel free to start calling out the registrars who sat idly by while the IP constituency attempts to rewrite the rules to threaten your property:

--- start of email ----------
I'm really disappointed that your registrar participated in the IRT, but did not look out for the protection of legitimate registrants like my own company. We submitted very practical and simple suggestions that would allow the IRT to target the worst offenders, but not have the collateral damage of affecting responsible domain owners.

For example:

1) Making the URS not apply to domains older than a certain age (e.g. 2 years).
2) Allowing registrants to white-list themselves through a security bond, through registrant verification, or other procedures. IP holders are given an IP clearinghouse and GPML to register themselves to give themselves special treatment, why not balance that to give the "good guy" domain owners some parity, after jumping through some hoops -- hoops that responsible domain owners can easily jump through, but which criminals won't. (just like EV SSL, etc.)
3) FAX NOTIFICATION to registrants, and/or having a legal contact in the WHOIS (to be served with any complaints). This would have ensured due process (faxes are a lot more reliable than email, much cheaper than registered mail, and trivial to implement by the URS provider through email-to-fax gateways. Don't fax a 100 page complaint, just a 1 page document notifying one of the complaint, to all contacts in the WHOIS *and* to the registered lawyer of the domain holder.

These are just a few of the things that were unaddressed or were arrogantly dismissed (read my comments on the first draft carefully, and there were a lot more). I'm really shocked that your company attached its name to a report that was so extreme and unbalanced.

I'll be writing a layperson's guide to the implications of this report that I hope will be widely dispersed, and calling NSI and GoDaddy out on this (both companies had reps on the IRT). Your clients, and the broader community deserve an explanation.
----- end of email----------

If your registrars are not looking out for your interests, perhaps it might be best to take your business/Hosting/domains elsewhere. If money talks, then this might be the only way to get their attention.

[Acro]

I think everyone should read this post for a full analysis by an attorney.

[stewie]

thx still reading...

[newvista]

This shows the narrow understanding by ICANN of the importance of the domain space.

[NostraDomainus]

I think everyone should read this post for a full analysis by an attorney.

Excellent Read. Once again, as we all know - Greed Breeds Mean Deeds.

IMHO, geo-specific hotbeds of Greed continue to disrupt the integrity and stability of the World at large, as an elite minority of self-centered people are always trying to take what is not theirs, yet hide behind those same rights and freedoms they are infringing upon if they get exposed. Seems to be something in the water, and the culture, which spreads this disease.

Divided we stand - united we fall.
The hypocracy of democracy is just rich, isn't it?

Pandora's Globalization Box has been opened, now some of those who were driving it cannot handle the so-called 'free market' competition (and dare I say the responsibility nor challenge at hand), and are insecure, jealous and desperate to the point where they have to cheat everyone. Sad and pathetic all at once - shaming themselves, their family and the country they claim they represent. Ohhh the humanity! (he-he)

[Acro]

Please keep this at the top of the posts.

[blacknight]

I posted two followups on this, but haven't posted a comment to ICANN as yet:

http://blog.blacknight.com/registran...e-ignored.html

http://www.isquattedyour.eu/2009/05/...user-concerns/

[GeorgeK]

During yesterday's Registration Abuse Policies working group, the issue of “policy” creation and how it should be done properly came up.

http://forum.icann.org/lists/gnso-rap-dt/msg00206.html
http://audio.icann.org/gnso/gnso-rap-20090601.mp3

Fast forward to 27:10 (27 minutes and 10 seconds) of the MP3 recording and listen to the next 2 minutes where I ask Margie Milam of ICANN a question about policy vs. implementation. At 27:24 or so she says the ICANN Bylaws require POLICY work to go through the GNSO. But, at 28:05 or so she says “The IRT work is implementation work.” !!! She dances around the issue for the next 40 seconds.

Policies need to go through the GNSO. However, ICANN Staff are describing all the new gTLD stuff as implementation, even though they are definitely creating new policy. Furthermore, take a look at the IRT’s full name “Implementation Recommendation Team.” Once again, this is doublespeak by ICANN, a way to circumvent proper procedures. These recommendations are policy and should be going through the GNSO. That would have resulted in balanced work, instead of the abomination and extreme report we received.

So, be watchful, as ICANN staff are mischaracterizing and deliberately calling things “implementation” in order to be able to do as much as possible in terms of policy creation in an unaccountable manner.

[BidNo]

Thanks George. Here's my public comment:

Subj: Largest expansion of trademark law in history

While I appreciate the efforts of the IRT proposal team, it is easy to dupe ourselves into thinking our nexus is shared by the universe -- but it is not. The solar system, as always, will revolve around the sun. Meanwhile the IRT proposal elevates registered trademarks and their power to the absolute. While trademarks are limited to goods and service categories, may have geographical boundaries and respect the rights of registered and non-registered marks, these considerations are not reflected. And expansion of these boundaries is at the expense of free speech, property rights, due process, etc.

Regards,
Richard Wixom

Cheers,

[Prospecting]

Individuals that registered generic domains with intent and/or use the domain to infringe on a trademark is key.

[GeorgeK]

There are some parallels in this story about the RIAA and their "graduated response" system:

http://news.cnet.com/8301-1023_3-102...g=2547-1_3-0-5

But the IRT is more extreme.