During the past week, PIR has actively participated in several of the most important current policy proceedings at ICANN, and has joined in the comments filed by the Registries Stakeholder Group (RySG).

A brief summary of the issues, the comments, and the URLs for the full text, follows:

1. The Expedited Registry Security Request (ERSR).
The issue: The ERSR is a proceeding intended to deal with serious incidents that threaten the systematic security, stability and resiliency of a Top-Level Domain (TLD) or the DNS itself. It was developed to provide a process for a gTLD registry to inform ICANN of a security incident and request exemption from compliance with some Registry Agreement provisions so that the registry could respond quickly to the incident.

Our position: The proposal by ICANN contains wording that would make the policy applicable even to very minor incidents that are outside the control of any registry. RySG asked that the wording be revised to clarify that only major security incidents are covered.

Comments on ERSR filed on 18 Nov 2009

2. Comments on the Draft Applicant Guidebook version 3 (DAG3) - Modules 1-4
The issue: These are extensive comments (15 pages) on the first four modules of DAG3.
Among the major issues are the timeline for opening the application process, the definition of “community”, and the new concept of high security domains.

Our position: RySG objects strongly to the time gap that is now developing between the introduction of new (Internationalized Domain Name) IDN ccTLDs and the availability of an application process for IDN gTLDs. This gap will give an unfair advantage to the country codes and in the long run will disadvantage the users of the Internet who expect a choice of services from IDN domains. RySG also points out that the definition of “community” needs considerable work, in its comments on the issue of separating applications for new gTLDs into community based or standard.

RySG criticizes ICANN’s proposal for new high security domains on the grounds that the proposal puts ICANN in the position of favoring one business model over others. In addition, this proposal changes the current policy of equivalent access for registrars without any basis for such a fundamental change.
The comments are also critical of several aspects of the evaluation procedures and the dispute resolution procedures.

Comments on DAG3 - Modules 1-4 21 Nov

3. Comments on the Draft Applicant Guidebook version 3 (DAG3) - Modules 5-6
The issue: These are also extensive comments (51 pages), primarily on the Draft Base Agreement in Module 5. RySG critiques this agreement, paragraph by paragraph. The most salient issue is the draft provision that allows ICANN almost unlimited latitude to amend the terms of the agreement unilaterally. This provision came to the attention of ICANN’s Chairman, Peter Dengate Thrush, at the Seoul conference in October. Mr. Dengate Thrush, an experienced barrister, was shown the offending paragraph and spontaneously said, “I would not sign that”. PIR understands that the provision is now getting some further work by ICANN staff.

Our position: We would not sign it either.

Comments on DAG3 - Modules 5-6 21 Nov

4. Comments on the Post Delegation Dispute Resolution Procedure (PDDRP)
The issue: These comments focus on the PDDRP, one aspect of the proposed Rights Protection Mechanisms for new gTLDs; the PDDRP is a part of DAG3 but it is a separate subject for public comment.

The original version of PDDRP was part of the recommendations of ICANN’s Implementation Recommendation Team (IRT) that was charged with developing recommendations for protection of intellectual property rights.
The original version allowed complaints to be filed against registries that allegedly failed to crack down on cybersquatters. The complaints would then be reviewed by ICANN and in some cases referred to a panel. ICANN would, however, retain ultimate responsibility for any decision. The revised PDDRP in DAG3 changes this to a system where all complaints are referred to, and decided by, a panel independent of ICANN.

Our position: RySG believes that ICANN altered the original version in such a way as to destroy its usefulness. The new version is unfair because ICANN should take responsibility for determining whether a registry has violated the terms of its Registry Agreement. RySG takes the position that the Rights Protection Mechanisms should either include the original PDDRP or eliminate it entirely.

Comments on PDDRP 22 Nov

5. Comments on the IP Clearinghouse
The issue: These comments focus on another aspect of the proposed Rights Protection Mechanisms for new gTLDs; like the PDDRP, the IP Clearinghouse is a part of DAG3 but it is a separate subject for public comment. The Clearinghouse would notify prospective registrants in a new gTLD if a domain name chosen by the registrant were identical to a registered trademark listed in the Clearinghouse.

Our position: The RySG is generally supportive of the idea of a clearinghouse that would gather information on registered trademarks from all the registration systems of countries around the globe. RySG takes the position that such a clearinghouse should be mandatory for new gTLDs (excluding those that have another pre-launch rights protection mechanism that achieves the same results).

RySG urges ICANN to be cautious in extending the application of the clearinghouse concept. It should have no effect on existing registries, except as a voluntary resource. The current system of real-time registration of new domain names cannot be compromised by requiring a comparison of a registration request to a list of trademarks.

Comments on IP Clearinghouse 23 Nov

For a full understanding of these issues, we urge you to review the full comments of the Registries Stakeholder Group. We welcome the support of our readers on these issues.

Written by David Maher, Senior Vice President, Law and Policy