A Non-profit Constituency? Or Trademark lawyers engaged in deceptive and confusing labeling?

A couple of trademark lawyers who work for nonprofits are trying to form a “new” constituency as part of the GNSO’s Noncommercial Stakeholders Group. They have filed a Notice of Intent to form what they call the “Not -for-Profit Organizations Constituency” (NPOC). NPOC defines its membership eligibility as follows: “Membership is open to any not-for-profit organization/NGO with missions such as: philanthropic, humanitarian, educational, academic and professional development, religious, community associations, promotion of the arts, public interest policy advocacy, health-related services, and social inclusion.”

That’s an interesting name for a couple of trademark lawyers to be attaching to their effort. Trademark law and policy is all about protecting consumers from confusing and deceptive labels. But this initiative seems designed to foster confusion. There is already a Noncommercial User Constituency in ICANN’s GNSO. The NCUC charter says that it was “created to provide a voice and representation in ICANN processes to non-profit organizations that serve non-commercial interests and provide services such as education, community organizing, promotion of the arts, public interest policy advocacy, children's welfare, religion, scientific research, human rights and the advancement of the Internet as a global communications system for all segments of society.”

How is any nonprofit organization that wanders into ICANN supposed to make sense of the difference between a “Not for profit organization constituency” and a “Noncommercial Users Constituency” – especially when their eligibility descriptions sound exactly the same? What’s going on here?

We will tell you what’s going on: The NPOC is part of a “divide and conquer” strategy pursued by business interests and ICANN’s legal and policy staff. Its purpose is to undo the GNSO reforms and give those who want to subordinate domain name policy to trademark interests greater representation within the GNSO. If they succeed in getting recognition as a new constituency, they might – let us emphasize the word might – get guaranteed voting seats on the GNSO Council, and become eligible for funding support from ICANN for such things as travel to meetings, rooms and so on. Most importantly, they would be able to promote their own policies without having to convince or persuade any other nonprofit organizations in the NCSG.

This insulation is is an inherent byproduct of using distinct Constituencies as the basis for representation and voting. Giving power to Constituencies encourages splinter groups to go off and form their own faction, which gives them guaranteed votes on the Council, rather than seeking consensus and agreement with all the other groups and individuals involved. Because of that, the Noncommercial Stakeholder Group’s new charter proposes to abolish constituencies altogether. It would rely instead on bottom up consensus for policy making and simple democracy for the selection of officers.

The group behind the NPOC has discovered that it cannot persuade other nonprofits to go along with its views and its leaders, who are all from the U.S., are disconnected from broader global civil society and thus are not likely to be elected to any leadership posts given the requirement for regional representation. So while the ethics are questionable, the political rationality of creating NPOC is clear. Instead of joining the NCSG on equal terms with all other members, and fighting for and persuading the rest of civil society of the merit of their policy views, the NPOC advocates are grabbing for guaranteed seats on the Council and a guaranteed number of votes.

One problem with that strategy is that the Board governance committee has not yet decided whether the NCSG will have constituencies at all – and even if it does, it has already decided that Constituencies cannot be tied to Council seats. It took a long and bloody battle to get the Board to recognize this simple and obvious fact, but it did happen.

One of the most irrational aspects of a constituency structure is that a new constituency acquires the same voting power and funding rights as another constituency, regardless of its size or level of support. Thus, the NCUC, which currently has nearly 200 members, is much larger and has at least ten times as many active participants in ICANN than the NPOC. NPOC claims to have 20 organizations supporting it. But the claim of support is just that – a claim. NPOC’s petition for recognition tells us that it cannot tell us who these 20 organizations are. We cannot even know whether one of them is the Recording Industry Association of America or other nonprofits associated with commercial interests. We do not know how geographically diverse these organizations are (we suspect that most if not all of them are U.S.-based).

So the ICANN Board is being asked to give the same rights and representational powers to two trademark lawyers, one from the American Red Cross and the other from the Association of American Medical Colleges, as it currently gives to 200 civil society organizations and individuals.

In the meantime, the chartering of the Noncommercial Stakeholders Group is still in abeyance as these larger structural issues are debated. And those dedicated fools, er, saints who devote hours and hours of their time to working within ICANN’s GNSO are faced once again with a form of top-down disenfranchisement. Even pro-trademark protection, anti-privacy supporters of NPOC are going to find themselves entering an hornet’s nest of confusion and controversy if they get involved in ICANN's GNSO. Despite all its noise about encouraging public participation, ICANN's staff and board could not be doing a worse job of it.

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