Why the Board must move ahead with the new TLD program despite the GAC’s objections

“A dialogue between the deaf and the stupid.” That’s how Gerard
de Graaf, the European Commission’s new representative on the GAC,
characterized the big showdown between the GAC and ICANN’s Board Sunday in
Singapore.

He was half right. The GAC was trying very hard to force the
Board to delay its plan to add new top level domains. The Board listened to the
three claims outlined in its ultimatum letter very carefully, agreed with one,
and then explained why the other two didn’t make any sense. Yet De Graaf and the
UK GAC representative didn’t grasp these explanations and kept repeating the
same arguments in increasingly truculent tones.

This 2-hour exchange not only made the official “policy
makers” in government look stupid, it also revealed that key leaders in the GAC
do not accept its advisory status and wish to assert their authority to overrule
ICANN outcomes – even when their objections are founded in ignorance.

The best example is provided by the debate over whether
trademark owners would have to demonstrate that their mark has actually been
used before they can avail themselves of the privilege of “sunrise” protection
in new top level domains. Sunrise protection means that when a new TLD opens to
registration, a trademark owner is given a special right of first refusal to reserve
domain names matching their trademark. Actual trademark law does not give them
this right. ICANN, as is often the case, is bending over backwards to cater to
the trademark interests by requiring new registries do this. The sunrise period
would give Rupert Murdoch’s Sky service, for example, an exclusive right to register
the string “sky” in a new TLD – despite the fact that “sky” is a generic word that
could be used in thousands of legitimate ways by others.

It became evident during the discussion that the GAC members
did not really understand the sunrise concept. They were confusing trademark
rights under national and international law with the sunrise policy, which
afford special privileges to trademark owners in the domain name space. Because
of that confusion, they thought that ICANN’s requirement that sunrise claimants
show actual use of their mark was imposing American trademark law, which
requires a showing of use in commerce before it will be recognized, on other
places in the world, which may not. This was patiently explained by three
different Board members, two of whom have extensive experience in trademark
law.

It should be obvious that this sunrise privilege can be
abused, and in the past it has been abused. The common trick is to pay $50 to register
a common word trademark in some jurisdiction where it is easy to do and then cash
in on that by making sunrise claims in multiple TLDs – so that the name can be
resold. In order to prevent this kind of abuse, ICANN decided that all trademark
owners making sunrise claims would have to show proof that the mark is being
used. The GAC members never got this. The trademark lobbyists, who seem to have
been their only source of information on the issue, never told them about that.

The discussion of cross-ownership showed the same lack of
knowledge by de Graaf and other GAC members. Their understanding of domain name
industry structure, ICANN contracts and the mechanisms already in place to handle
cross-ownership issues, was very weak. While it is true that ICANN’s community
did not reach consensus on how to handle this issue and there is room for
additional thinking and new proposals, the GAC members, who isolated themselves
from more than a year of intense exchanges on vertical integration and cross
ownership in ICANN’s Vertical integration working group, trailed far behind the
ICANN community in their grasp of the issues.

I draw two conclusions from these and other GAC-Board
confrontations.

First, the whole GAC model is broken. The GAC should not be
organized as a separate silo, as we can no longer waste time having the GAC intervene
at the last minute, requiring us to educate them and re-do policy making on
complex issues that have been hashed out by the community as a whole for months
or years beforehand. Yes, governments should be involved in the policy making
process. Individuals within governments have important knowledge and
perspectives to add to the policy making process, but their involvement must be
integrated with the rest of the community. Governments should participate in
the bottom up process as stakeholders on the same status as the rest of us.

Second, the Board must put an end to this dithering with the
GAC over the new TLD program, at this meeting. The Board should vote to go
ahead with this program, despite the GAC’s remaining objections. In doing so,
the Board will be making it clear, not only to the GAC, but to itself and the
rest of the people involved in this new model of global governance, that the
role of national states in Internet governance must change. Territorial governments
are in no position to dictate policy to a transnational medium, especially when
they are isolated from the multi-stakeholder process that fuses the expertise
and interests of many different groups.

ICANN’s policy development process is far from
perfect, but it does bring together people in civil society and business who
are often direct participants in the industry and have a great deal of
expertise and local knowledge. The idea that governments can sit by themselves
in a room and refuse to participate in ongoing discussions with the rest of the
community is not viable. ICANN’s Board can send a strong message to this effect
this week by moving ahead.