ICANN Toronto. Monday October 15, 2012

Transcription

1 ICANN Toronto Monday October 15, 2012 Update on Registrar Accreditation Agreement (RAA) Negotiations ICANN started the meeting by laying out the target timeline for concluding the negotiations. They plan to conclude by the end of December so they can post the RAA for public comment before the end of the year. They plan to revise the RAA based on public comment by February 2013, and then approve the revised RAA by April Since the ICANN meeting in Prague, there have been 6 negotiation sessions, and they have addressed all 12 of the law enforcement recommendations in whole or in part, including agreement in principle on a prohibition against cybersquatting. They noted that the issues that remain are complex and challenging, such as WHOIS validation/verification and registrant data retention. In terms on WHOIS validation and verification, they are still negotiation how far the verification should go. Law enforcement wants and phone verification, whereas registries want or phone verification. They are also working out whether verification should occur before or after the resolution of the domain name. A member of the audience argued that requiring and phone may place a high financial burden on registrars with the costs of international calls/texts and the inability to get phone/internet service in certain countries. For data retention, they are working on having a bifurcated retention schedule where sensitive information is kept for six months and other information is kept for two years after registration. The type of information that will be retained would be like IP addresses. There would be no disclosure requirement, but the information could be subpoenaed by law enforcement. Working group on Sunrise and Trademark Claims Implementation Community sunrise model The goal in the sunrise is to allow a mark holder to register a domain name during the sunrise period of a TLD, and give the registry the ability to verify that it is in fact the mark holder. Any model used to accomplish this must be simple, decoupled, supportable, and respectful of existing processes. The actors who will be participating in the sunrise process are the Trademark Clearinghouse (TMCH), registry operator, registrar, and mark holder. The simple solution would be to have the TMCH verify the information in the mark holder s request. However, this solution doesn t meet the requirements above because it is tightly coupled. The Community Sunrise Model uses a technical solution called PKI where one entity can assert that a piece of info came from them, and other entities can verify that the info came from 1 st entity and that it hasn t been modified by a 3 rd party. It involves the generation of public and private key pairs. The TMCH would generate public/private pairs, and provide mark holder with signed mark data (SMD). The mark holder would provide the SMD to registrar. The registrar would then pass the SMD to the registry, who verifies that the SMD is using the TMCH public key.

2 They noted additional benefits to this model including the ability for registrars to detect and fix issues, keeping mark holders in control of data, and allowing registrars to request data from mark holders without the need for independent validation of that data. Trademark Claims Service There are two models: ICANN Model and the Alternative Model. The fundamental difference between the 2 models is who gives the return claims notice to the registrant, the Registry or the Trademark Clearinghouse (TMCH). The ICANN Model is a decentralized model where the registry does the return claims notice to the registrant. The Alternative Model is centralized where the TMCH takes the responsibility of the return claims notice. The question that still remains is how comfortable is the IP community with the notion of registries being handed all of the information in the ICANN draft model? The IP community previously expressed security concerns with giving all of the information about their marks n to every registry in the ICANN model. On the other hand, a decentralized approach ensures that the trademark claims service would still be able to function in the event that the TMCH is down. Members of the audience questioned the need to protect the data in the TMCH when marks are publically available. ICANN will publish written documents for public comment or a webinar or conference call discussion to determine which model should be implemented. Cross Constituency Breakfast Tuesday October 16, 2012 The Cross Constituency breakfast consisted of members of the IPC, BC, ISPCP, and GAC members. I was at a table with representatives from Ping, Mark Monitor, Overstock.com, and BT. They noticed the newcomer ribbon on my nametag, and gave me advice for surviving my first ICANN meeting. We all discussed the major issues affecting our constituencies. Commercial Stakeholders Group (CSG) During this meeting, the groups prepared for the meeting with the Board by finalizing joint proposals on improvements in RPMS and coming to a consensus on whether there is a need for a Policy Development Process (PDP) for WHOIS. The agreed upon joint statement on RPMs that was presented to the board is as follows: 1. Extend Sunrise Launch Period from 30 to 60 days with a standardized process. 2. Extend the TMCH and Claims Notices for an indefinite period; ensure the process is easy to use, secure, and stable. 2

3 3. Complete the URS as a low cost alternative and improve its usefulness - if necessary, ICANN could underwrite for an initial period. 4. Implement a mechanism for trademark owners to prevent second-level registration of their marks (exact matches, plus character strings previously determined to have been abusively registered or used) across all registries, upon payment of a reasonable fee, with appropriate safeguards for registrants with a legitimate right or interest. 5. Validate contact information for registrants in WHOIS. 6. All registrars active in new gtld registrations must adhere to an amended RAA for all gtld registrations they sponsor. 7. Enforce compliance of all registry commitments for Standard applications. 8. Expand TM Claims service to cover at least strings previously found to have been abusively registered or used. Commercial and Business Users Group I was able to attend a small part of this meeting, during which there was a presentation from the SSAC chair on the dotless domains. The issue for discussion was whether the new gtlds should be able to create dotless domains, for example instead of He recommended against dotless domains for security and uniformity reasons. IPC The IPC meeting consisted of briefings on Contract Compliance, the Trademark Clearinghouse (TMCH), URS, and RAA Negotiations. Contract Compliance o WHOIS data problem reporting system (WDPRS) o Info available on myicann.org o Only publish when they issue a breach o What will the audit entail see appendix pg. 21 o There will be a 3 rd party audit TMCH In order to avoid repeating the presentation given on Monday, ICANN staff opened the session up for comments and questions on the trademark clearinghouse. It was noted that there are currently two documents up for public comment: one on matching and one on eligibility. Comments are due November 7, Members of the audience stated that they want the TMCH to play objective role rather than making a legal determination on proof of use. ICANN staff indicated that the TMCH will be using a list of criteria, and if the specimen looks like use on its face it will be accepted. They will not be making subject evaluations. Disputes over whether proof of use is fraudulent will be decided by a panel, not the TMCH. 3

4 IPC members urged that the TMCH rules be published for public comment. An audience member asked about the level of consideration is being given to the alternative model (discussed in the report) and how ICANN will decide which model to use. Staff indicated that the alternative model was created to try to address concerns revolving around data, but that the alternative model raises concerns of its own. ICANN wants to receive broad feedback on both models, and indicated that they won t necessarily pick one of these models. They re looking for a solution that addresses all of the concerns. It was also noted that encryption is not a viable option for protecting the data in the TMCH. URS Again, the ICANN staff went straight into a comment and question period to avoid repeating what was covered in the meeting on Monday. IPC members brought up concerns about the cost of running the URS system v. the fee that is planned to be charged. There are a lot of concerns that providers are unable to run the system while charging only $ If this is true, they may agree to accelerate the modification process or allow default judgments to cut the costs. The most costly part of the system would be the examiners. The time limit for getting a provider of the URS is February One IPC member raised concerns that the clear and convincing evidence standard for URS is too high, since that would require more evidence from the parties thus making the process most costly. She suggested that the standard should be consistent with the UDRP. RAA Negotiations ICANN staff stated that concluding negotiations is a very high priority for ICANN, and they are planning to have 4 meetings between now and the end of the year. Currently, they are at 11.5/12 on the law enforcement score card, and similar for the GNSO score card. They have come to a central agreement with law enforcement on the issue of data retention. WHOIS verification is still being negotiated in two areas: (1) Whether verification will require and phone or or phone; and (2) Whether verification will take place before or after registration. One IPC member pointed out that under new agreement, if they find false WHOIS data they suspend the registration. He suggested that if this was made airtight, the verification issue would become less important. ICANN staff stated that this was not an option on the negotiating table. ICANN will post the new RAA for public comment. 4

5 Cocktails with the ICANN Board for GNSO Commercial and Noncommercial Members During this reception I had the opportunity to network with members of the GNSO as well as the ICANN board. During informal discussions with an ICANN board member, I explained the need for more trademark protections, especially since we re looking at a much larger new gtld program than anticipated. We talked about the joint IPC-BC proposal, particular #4 (see above). His reaction was, I don t know if I buy it. We both agreed that any policy needs to strike a balance between the rights of trademark owners and potential registrants who may want the domain name for a legitimate purpose. Trademark Clearinghouse Wednesday October 17, 2012 Deloitte gave a presentation on the progress they ve made in implementing the TMCH, and gave a demonstration of the registration process on the website they re building (trademarkclearinghouse.com). The process as built requires manual input of all trademark information, so several members of the audience asked them to explore ways to import the information for multiple trademarks at one time using existing databases. Currently, they have proposed a correction process that would be free of charge, but there is only one opportunity for correction. If the trademark record remains incorrect after that one time, or it does not meet the clearinghouse guidelines it will become invalid. Then the trademark holder or agent can lodge a dispute. The audience suggested that only allowing one opportunity to correct a trademark record may disadvantage small businesses and individuals who may not be as familiar with this type of process. Deloitte will be conducting dispute resolution through an internal legal team separate from the verification agents to determine whether the verification agent has correctly followed the process, and evaluate the trademark record using the same criteria. Disputes can be brought by the trademark holder or agent or a third party that doesn t agree with the trademark verification. Deloitte plans to implement a hotline to provide customer support for issues logging into the clearinghouse and a web ticketing tool for all other issues. Audience member stressed the importance of putting in place a mechanism for preventing fraudulent registrations. They will also look into setting it up so that agents can create multiple accounts so they can turn the information owner to the trademark holder in the future without disclosing the information of other holders that the agent represents. ICANN staff noted that they will be providing notice at least 90 days before the first new gtld goes live so that people can start entering information into the clearinghouse. The audience asked for similar notice for other TLDs before the go on line (30, 60, 90 days) so they have time to decide whether to put the relevant marks in the clearinghouse. 5

6 WHOIS Update Feasibility Survey ICANN staff gave a presentation summarizing the results of a study conducted to determine the feasibility of conducting a full study of relay/reveal. The feasibility study was authorized by GNSO Council in April The report concludes the following: Full study of WHOIS privacy and proxy reveal and relay would be feasible if defined in such a way as to resolve identified barriers, provide some but not all of the data anticipated by the GNSO council Such a study (specifically by ICANN) would be well received by people on all sides of the WHOIS information access debate Attention to issues including confidentiality or convenience in the design of the study would improve the quantity and quality of the data that it would deliver, but would not entirely overcome the asymmetric reluctance of potential participants from different constituencies to contribute. The results of a full study this encumbered might not satisfy the expectations of the community or the council with respect to the statistical validity or independent verifiability. IETF WEIRDS (Web Extensible Internet Registration Data Service) The IETF WEIRDS Working Group gave a presentation on their work. They stated that we need for a new protocol because WHOIS has never been internationalized, WHOIS has no data framework, and there is no current capability to support differentiated access for services that decide to do so. The group was chartered to create a RESTful service, which means that it would have a simple interface (http), be stateless, have resources represented by URIs, have the ability to be layered, and be cacheable. They are working on 5 major documents (RFCs) that they are schedule to complete by December 2013 on the following topics: Use of RDAP over HTTP Query format (URI) Query Reply (JSON) Security Considerations Redirects Other Brief Reports on WHOIS o SSAC Report on Domain Name WHOIS Terminology and Structure (SAC 051) 6

7 o o WHOIS Registrant Identification Study WHOIS Review Team Recommendations GNSO Council Public Meeting During the GNSO Council Public Meeting, each constituency that is a member of the GNSO gave a report on their activities at ICANN45. The IPC reported that they had a very big turnout. The WHOIS Review Team Report is very important to the IPC, and they hope the board will give an endorsement. They indicated that the rationale behind the joint IPC-BC proposal is that community is faced with the reality of the large number and nature of new gtld applications, and that the existing rights protection mechanisms are not sufficient to build consumer trust in the new program. Then the council conducted a regular business meeting, including acknowledging departing and new council members and voting on a number of motions. IPC Closed Meeting Thursday October 18, 2012 During the closed IPC meeting, we discussed having the membership committee clarify the membership criteria in the bylaws. We also discussed the need to evaluate ICANN s proposal on batching the new gtld applications by using a drawing. The comments are due November 9 th. For the Trademark Clearinghouse, the Registrar/Registry community has posed a number of questions to different constituencies on the different proposed models. A group volunteered to respond to the questions while taking input from all IPC members. Jay Scott sent out the questions to the membership. Finally, IPC members reported on a meeting with ICANN s CEO, Fadi Chehade, and other stakeholders regarding the IPC-BC Joint Position on rights protection mechanisms. They said the meeting was very comforting, and that Fadi plans to keep working with the stakeholders to resolve these issues. A couple of task forces were formed to work on different items on the list. DNS Security and Stability Analysis Working Group The DNS Security and Stability Analysis Working Group was formed after the Brussels meeting because there was a need for a better understanding of the security and stability of the global domain name system. It is a collaborative effort between supporting organizations and advisory committee through delegates who are selected by the constituencies. They re working on refining their methodology, introducing the framework to a broader audience, and completing risk management. 7

8 Uniform Rapid Suspension (URS) During the meeting on the URS, the National Arbitration Forum and WIPO, who are UDRP providers, each presented potential changes to the procedures to cuts costs and a company that plans to apply to be a provider presented on his plans for keeping URS within the necessary price range. URS is supposed to be a complement to UDRP to resolve clear cut cases of trademark infringement through a fast an inexpensive proceeding. They are currently seeking applications for providers of the service, but it is unclear if the objectives can be met with procedures as drafted at a cost of only $ They need providers lined up by early The National Arbitration Forum argued that there are too many administrative touch points in the URS as proposed. They suggested using electronic communications, connecting the URS directly to the trademark clearinghouse, having default cases proceed to a prima facie check by an attorney, and reducing the response period (no extension of 6 months). WIPO said that there are more moving parts in URS than the UDRP, which means that there is more for providers and the parties to do. This increases the costs. He suggested making URS a default based system, leaving contested cases for the UDRP. Paul McGrady introduced a legal staffing legal process outsourcing company who argued that material changes to the URS are not necessary for meeting the price point. He proposes using technology to automate of as much of the procedure as possible, especially the pieces that require an objective evaluation. He stated that UDRP requires expert examiners, but expertise is not as important in the clear cut cases for the URS. He also argued that there are a lot of business techniques that can be used to reduced costs of running the URS. An audience member agreed, stating that ICANN shouldn t let vendors determine policy. Public Forum During the public forum with the ICANN board, a number of concerns and suggestions about the new gtld program were raised. Regarding the Trademark Clearinghouse, Jonathan Zuck stated that there is trepidation among the staff about using the centralized model if that s the way the communities want to go. Fadi stated that he was committed to considering all of the options and follow that the community thinks is best. There were a few comments on additional trademark protections in the new gtld program. Marilyn Cade of the business constituency stated that they are driven by the desire to protect businesses and consumers. Fadi assured her that they are looking for the right solution for all of the parties and that he understand the rationale behind it. Another attorney gave his support to ICANN s effort stop abuse of registrations, but noted that any new blocking mechanism must balance the potential right of individuals to access these names. A representative from Minds + Machines argued that adding 8

9 additional trademark protections is unfair to applicants who applied based on what was in the guidebook. There were several comments about the proposal to use a drawing to select the order of evaluation for the new gtlds. They argued that the proposal needs to give everyone an equal opportunity (individual applicants vs. applicants with multiple applications) and provide preferences for underserved regions. There was also discussion about applications for a closed registry of a generic word in the new gtld program. People are concerned that having closed generics will allow one company to block its competition from being in that domain, when the new gtld program was supposed to improve competition. An applicant argued that this discussion is premature because a lot of generic term applications are in contention sets. He stated that companies may decide to open up the registries to resolve contention. Representatives from the Non-Commercial Stakeholders Group and the At Large Community read a joint statement about recent attempts to reopen URS policy due to cost related push back from potential providers. They argued that this could negatively impact policy in the name of cost cutting. Another audience member commented that ICANN needs to ensure uniformity across URS providers. Other comments during the forum included asking for a pilot evaluation of a non-contested community TLD application or a pilot of the community clarification questions, a comment that new gtlds should protect existing TM rights but not expand rights or create new rights, and that ICANN should create a process for private auctions as a last resort in contention sets so that the same process is used across the board. 9