A few days ago, ICANN announced that it had renewed Public Interest Registry’s (PIR) contract to run the .ORG top level domain. As an .ORG registrant, we are generally satisfied with PIR’s operation of the domain. Equally important, we approve of its use of .ORG revenues to support the IETF and noncommercial stakeholders in the ICANN environment.

Despite this, there are some very disturbing things about the new .ORG Registry Agreement contract. The problems relate to the role of community policy development vs. bilateral contract in the governance of the domain name system. It appears that ICANN’s contracting process provides ICANN and its contracting parties a way to completely bypass ICANN’s policy development process. As such, it undermines the whole purpose of having ICANN in the first place.

Removal of price caps: no big deal

Most of the controversy around the .ORG renewal focused on the removal of price caps. The proposal to do so triggered a strong reaction: ICANN received over 3,200 comments in opposition. Nothing changed as a result. Although the ICANN board’s willingness to ignore the overwhelming thrust of public comments should give us some pause, we don’t think the removal of price caps is as big a deal as it is being made out to be. ORG is now one of more than a thousand TLDs. Any rate increases would affect mainly new registrants, who have many options in a highly competitive market. And frankly, the price of a domain, at a couple of dollars a month, is not a decisive factor in any nonprofit’s budget.

Price gouging renewals could be a serious problem, but the contract contains protections against massive increases on renewals of .ORG names held by existing registrants. It requires PIR to notify registrars of any price increase 30 days in advance, which will allow registrants to renew for up to 10 years before the rate increase goes into effect. If we had our way, registries would be allowed to offer even longer renewal periods, including in perpetuity, but since the beginning of its existence ICANN has not allowed registries to offer that option. (We can thank WIPO and the trademark interests for that.) At any rate, look for this price cap controversy to be replayed, with even more gusto, when the .COM contract is up for renewal.

Setting policy bilaterally

The noise about price caps seems to have completely obscured a far more important issue. If one reads the new .ORG RA, one finds some odd things in it. Most notable is the presence of a section committing .ORG to the Trademark Claims Notices and Uniform Rapid Suspension (URS) processes. The Trademark Claims notification basically warns people registering a name  that the character string they want corresponds to a trademark. Since almost every word is trademarked somehow, somewhere, and not all uses of them are infringing, this is quite a concession to TM holders. The URS provides for a stripped down, much faster, less expensive and less careful version of the UDRP. During the arrival of new gTLDs, it was supposed to be invoked only in cases of “obvious” cybersquatting, because the UDRP already gives trademark holders a fairly quick and inexpensive (compared to courts) way to get domain names out of the hands of cybersquatters.

These new rights protection mechanisms (RPMs) were developed specifically for the introduction of hundreds of new generic top-level domains from 2012 – 2018. They were needed, we were told, because the creation of so many new TLDs might lead to a wave of cybersquatting, which the existing Uniform Dispute Resolution Process (UDRP) would be too expensive and slow to handle.

One could argue that these new RPMs were overkill even in the new TLDs. Currently, there is a policy development process underway in ICANN that is supposed to review all RPMs, assess their effectiveness and decide whether they are needed any more. That PDP is in the middle of its work.

Pre-empting the RPM Working Group

But that is precisely the problem with the new .ORG contract. It no longer matters what the RPM working group decides about URS and the Trademark Claims process. ICANN and PIR have already put it into their contract. All .ORG registrants will now be governed by these policies. These aspects of the Registry Agreement were set bilaterally – not by a bottom up policy development process. Remember, the URS and Trademark Claims Notices were only supposed to be put into the contracts for new TLDs, as a hedge against cybersquatting in open domains. There is no reason to put them into .ORG; in fact, it’s downright perverse to do so. As the Electronic Frontier Foundation commented:

Trademark Claims Notices received by people who seek to register a domain name tend to deter registrations that would not infringe a trademark or otherwise invade the legitimate rights of a trademark holder. Claims Notices, which warn of the possibility of infringement, can be misleading for non-commercial users, because non-commercial use of a word or phrase is not trademark infringement as a matter of law. Because the .org TLD is used primarily by nonprofit organizations engaged in a variety of charitable, educational, religious, scientific, and public interest activities, their uses of a domain name are far more likely to be noncommercial, and thus outside any exclusive right of a trademark holder.

But it gets worse. The new Registry Agreement also allows Public Interest Registry “to develop additional rights protection mechanisms” unilaterally. We believe that these kinds of agreements basically invite registries to engage in content regulation, which is specifically prohibited by ICANN’s bylaws. We have already seen some new registry operators come up with policies that were rejected by legal experts and ICANN processes as insufficiently protective of free expression rights and overly expansive for trademark rights. Again, from the EFF comments:

For example, registry operator Donuts enforces “Domain Protected Marks List” and “DPML Plus” policies that allow trademark holders to withdraw a name from use by others across hundreds of gTLDs, thus interfering with millions of potential non-infringing uses of those names by others. ICANN should not permit Public Interest Registry to impose its judgment about the proper balance of public and private rights in domain names upon millions of non-profit organizations by fiat, bypassing community input.

It gets even worse

The section on reserved names (Specification 5) confers sweeping rights to governments to prohibit the registration of the names of countries and geographic territories. These reservations are not the product of a consensus policy. We know that many GAC members would like to have these rights, and we know that GAC has issued advice calling for it, but such a reservation was never approved by ICANN’s bottom up policy process. And yet, there it is, in the contract, governing what names cannot be used at the second level.

The names of intergovernmental organizations are also reserved in the .ORG contract. In this case, there has been an extended policy process and the GNSO did not agree to give the IGOs and the GAC exactly what they wanted. Yet apparently that doesn’t matter, because the .ORG contract(and the contracts of all the new gTLDs) bypassed the GNSO policy process and gave the governments what they wanted.

Where are we going with this?

There is a pattern here, and it is not a pretty one. We can see ICANN org and major domain name registries bilaterally setting policies that effectively nullify the ability of the ICANN community as a whole to develop policies that involve input from all stakeholder groups and develop a consensus. It gives the lie to ICANN’s continued claim that it fosters bottom up multistakeholder consensus policies. It provides for an end run around fundamental bylaw constraints, such as the one prohibiting ICANN from regulating content. This is a troublesome loophole in ICANN’s contractual model of governance, and board members and GNSO representatives need to do something about it.

As for the community, we need to put Verisign on notice. We will not allow the same thing to happen to the .COM contract, which encompasses almost one third of all gTLD registrations worldwide. There will be plenty of people ready to carry pitchforks and torches over the price cap issue; a coalition with antitrust agencies concerned about market power and monopoly pricing and civil society free speech advocates would be powerful, and litigation inevitable if they try the same trick again.

ORG Registry agreement: https://www.icann.org/resources/agreement/org-2019-06-30-en

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