Below is an open letter to the United States House Subcommittee on Intellectual Property and the Internet regarding the Oversight Hearing on new Top-Level Domains to be held on Wednesday 4 May. The intention of the open letter is to highlight the imbalance of intellectual property interests on the panel and to ensure the Subcommittee is presented with some balanced facts and benefits of the new Top-Level Domain program.

May 3, 2011

Hon. Robert Goodlatte
Hon. Mel Watt
House Subcommittee on Intellectual Property, Competition, and the Internet
Rayburn House Office Building B352 / B351-C
Washington, DC 20515

RE: ICANN Generic Top-Level Domains (gTLD) Oversight Hearing

Dear Chairman Goodlatte and Ranking Member Watt:

Tomorrow, your subcommittee will conduct a hearing on the introduction of new generic top-level domains by the Internet Corporation for Assigned Names and Numbers (ICANN).

It appears that the witness list for this hearing is not fairly balanced. While intellectual property interests are extremely important to the process, permitting the panel to be so heavily devoted to those interests to the exclusion of other critical considerations will present a distorted picture of the new gTLD process.

It is unfortunate that of the six witnesses on the panel, none comes from the perspective of an entity that plans to run a new gTLD and could discuss the innovation, consumer choice, and job growth they will provide. Nor will the committee hear from representatives who might counter some potentially over-reaching views of the intellectual property interests, such as representatives of non-commercial entities, privacy experts, and existing domain name service providers.

Other qualified witnesses were suggested to the committee; it is unclear why they were not accepted for testimony.

By this letter, the undersigned would like to provide the subcommittee with an additional set of considerations involved in new gTLDs, and thus lead the subcommittee to a clearer understanding of new gTLDs.

The new gTLD process has been lengthy and inclusive, with particular accommodation given to IP concerns
As you know, new gTLDs have been subject to extraordinarily thorough and inclusive discussions going back to ICANN’s start in 1998, and in earnest since 2005. ICANN approved the new gTLD policy in 2008 and has been working on implementation for almost three years. Community concerns and ideas of all kinds have been incorporated into the guidebook that will govern the application process. This is particularly true for the concerns and demands of intellectual property holders.

It is without question that rights holders be afforded reasonable protections. However, it must be fairly pointed out that since initiation of this discussion nearly six years ago, ICANN staff and participants (including representatives of the United States Government), at significant expense, have accommodated the needs and demands of the IP community to prevent intellectual property theft or needless cost to IP owners. Indeed, most recently with the assistance of the ICANN Governmental Advisory Committee, intellectual property interests now have succeeded in achieving even more rights than a panel of intellectual property experts recommended to ICANN.

Fairly consider the practicalities and facts at hand
It is also critical that as Congress considers the new gTLD program, all the facts be readily available, clear and accurately presented in a balanced manner. To this end, please consider:

US businesses need additional access to widen goods/services availability

Intellectual property interests are, of course, of great importance; so, however, are the innovation, jobs, and competition that will result from assisting American businesses (both large and small) with second-level Internet access that will broaden availability of their products and services here and abroad.

New gTLDs contain robust rights protections

The ICANN community has developed systems that will protect rights holders as new gTLDs become available, making new Internet real estate much “safer” from that perspective than even the current .com space.

Costs of rights protection are borne by all concerned

It is important, of course, that intellectual property be protected as extensively as is reasonable. Many of the costs of such protections have been and will be borne by ICANN as part of the new gTLD application fees. Further, as operational experience has shown, at times, rights holders can be mistaken or needlessly broad in asserting actual or perceived claims of infringement of such rights. Resolution of conflicting claims must fairly include a balanced approach that does not penalize those unfairly targeted, such as innocent domain name registrants.

The ICANN governance model is capable and must be financially transparent and accountable
The ICANN governance model handles numerous matters of policy and technical coordination. With regard to the new gTLD program, it has assessed the domain name system’s capability for “scaling up” to accept new gTLDs, it has afforded mechanisms for rights protection, and it has taken into account the concerns of the U.S. and other foreign governments.

Concerns over financial transparency are perpetually relevant in today’s business environment, and should, of course, be fairly applied to ICANN. ICANN’s current budgeting process is highly transparent and includes participation by all sectors of the community. Nevertheless, the subcommittee should further encourage ICANN to remain financially transparent, especially in light of the additional income and costs associated with the new gTLD program.

We hope this information is helpful as you prepare for the hearing.

Respectfully submitted,

CC:   Chairman Lamar Smith
         Ranking Member John Conyers
         Vishal Amin, Majority Staff
         Stephanie Moore, Minority Staff