Robin
Thanks so much for this summary. On the
incitement issue, I understand and agree with your statement that it is not
illegal under
--MM
From: Non-Commercial
User Constituency [mailto:[log in to unmask]] On Behalf Of Robin Gross
Sent: Sunday, November 02, 2008
11:00 AM
To: [log in to unmask]
Subject: [NCUC-DISCUSS] A few
points on ICANN's new gTLD policy implementation plans
Greetings from
A few key points on the discussion and newly released ICANN papers on
Implementation of New gTLD Recommendations.
A.
On the Legal Rights of Others Objection:
ICANN lists 8 factors to consider in deciding whether to deny a domain
name based on the alleged intellectual property rights of others. The
UDRP, international trademark law and anti-cyber-squatting laws all require
consideration of "whether the applicant has a free expression right?"
ICANN's recommended 8 factors do not consider the applicant's freedom of
expression rights in any way. ICANN's recommendation is basically 8
factors that are 8 different versions of the same idea: has the objector ever
had the trademark? or does the objector intend to apply for a trademark? Or any
other IPR right the objector might have or want, like a copyright? Etc.
So this recommendation for implementation departs from the UDRP and
international law and it also ignores Principle G of the GNSO's Final
Recommendations for New gTLDs:
"The string evaluation process must not infringe the Applicant's
freedom of expression rights?"
Principle G was approved by both the GNSO and the ICANN Board of
Directors for this process, so ICANN staff is departing from the clear
direction of the GNSO and the Board of Directors and doing its own thing.
This problem needs to be fixed.
Further, ICANN recommends that objections under this category be
decided by a SINGLE panelist, and specifically, an intellectual property rights
expert. Many of these cases lie in the tension between free expression
and intellectual property, and asking an IPR expert to make the decision gives
the IPR side an enormous advantage over the free expression interest.
This is not to say the panelist will intend to favor the IPR side, it is
just that the perspective one holds depends on the shoes one has walked in; and
the legal training and experience of representing large IPR holders gives an
advantage to understanding (and sharing) that viewpoint over the other.
B.
On the Morality and Public Order Objection:
ICANN is leaning toward categorically banning 3 categories of
expression, which Kurt Pritz wrongly claims (with respect to 1 category) is
international law. Pritz said he surveyed "every jurisdiction in the
world" to come up with his list.
The 3 categories of expression to categorically ban are:
1. Incitement to violent lawless action.
2. Incitement to or promotion of discrimination based
upon race, color, gender, ethnicity, religion or national origin.
3. Incitement to or promotion of child pornography or
other sexual abuse of children.
Categories 1 and 3
(depending on interpretation) are legitimate reasons for banning expression
under international law.
On Category 1:
In the
Category 2 is NOT an
accepted principle of international law. Banning "meanness" is
in clear contrast to well-settled
On Category 3.
It is well-settled
principle of international law that child pornography illegal. No
argument about that. But "incitement or promotion" to engage in
child porn is different than the porn itself. So there is a conflation between law on child porn
itself with law on statements about
child porn.
Objections
based on the Morality and Public Order objection will be determined by the
International Chamber of Commerce, so there is some concern that non-commercial
interests won't get a fair shake from ICC, which represents and advocates on
behalf the world's largest businesses. This needs to be better
understood.
C. "Community Objections"
Implementation
recommendations for "communities" favor entrenched institutions at
the expense of innovators and start-ups. Still no definition of
"community", so the community of "Internet users", and the
community of "dog owners", and the community of "blondes",
and the community of "anything you can imagine" is a "defined
community" according to ICANN and will have standing if there is an
institution to lodge the objection.
D. Other Points:
1. Even after
the panel makes its decision to allow a domain name, the ICANN Board of Director
will still vote to approve or deny the domain name.
2. ICANN is
spending $700,000 on a computer algorithm to help determine "confusingly
similar" of a domain. There is wide skepticism to this approach to
begin with (since "confusion" is always context dependent), but the
exhorbitant expense for this "help" adds insult to injury to domain
name registrants who pay for this nonsense.
3. I've been
told that ICANN staff will receive a large cash bonus from ICANN for passing
the implementation. I don't know if this is true or what the details are,
but it is worth looking into, since ICANN is supposed to bottom-up policy
forum.
4. The cost of
applying for a new domain name keeps rising such that only the wealthiest of
institutions can ever afford the process and actually obtain a domain name.
Sad - missed opportunity.
a)
$100 fee to access the application system
b)
$185,000 to apply for a domain name
c)
$50,000 for Registry Services Review Fee
d)
$TBD to file Objection to application (expect to be thousands of $$)
e)
$TBD to file Response to Objection (fee due from applicant!)
(expect to be thousands of $$)
f)
$TBD: the panelists may appoint "experts" to be paid for the
parties equally (without the request of either party)
5. Applicants
are only given FIVE DAYS to file a Response to an objection. If the
Applicant can't come up with the THOUSANDS of dollars in 5 days to respond to
an objection, the Response will be disregarded (and the applicant loses).
References:
IP JUSTICE
Robin Gross,
Executive Director
p: +1-415-553-6261
f: +1-415-462-6451