ICANN has released its Draft FY13 Operating Plan and Budget (http://www.icann.org/en/news/public-comment/op-budget-fy13-01may12-en.htm) and while we haven’t reviewed it in its entirely yet we did notice that it contains two references to the implementation of the new Uniform Rapid Suspension (URS) rights protection mechanism meant to supplement the UDRP at new gTLDs.
The first, at page 10, states:
Rights Protection Mechanisms. Implementation of additional post-delegation rights protection mechanisms will take place. These efforts include work with the community to develop effective and feasible policy and administrative rules, and the engagement of one or more Uniform Rapid Suspension (URS) providers.
That’s not very revealing, other than that they are open to accrediting more than one URS provider (if they can get that many to apply). Yet it’s also unsettling in its reference to developing effective and feasible policy rules – as we thought URS policy matters had been settled, and have been waiting on and asking ICANN repeatedly when it will start the process for implementing that policy. Apparently nothing is really settled.
But the second reference, at page 59, raises some interesting and important questions:
Uniform Rapid Suspension (URS) – $175K
At present there is a significant gap between the features specified for the URS procedure and the desired cost. In order to bridge this gap we will: hold two summit sessions to reconfigure the URS to arrive at a lower cost model (one session in FY12 budget and another in this FY13 plan), conduct a process to develop and finalize URS Model in consultation with current UDRP providers and community members; and conduct RFP based on URS Model and select URS providers. The goal is have a URS program in place and providers contracted and onboard by June 2013.
So ICANN is budgeting $175,000 for URS implementation in the next fiscal year. It acknowledges that there is a gaping chasm between what this new rights protection is supposed to provide and the $300-500 per filing fee it has held out to trademark interests. So, to “bridge the gap”, it will hold not one but two “summit sessions”, one this year and one next, to “reconfigure the URS to arrive at a lower cost model”.
Let’s stop right there. We’ve been going to ICANN meetings for years but we’ve never been to, or even heard of, an ICANN “summit session”. We don’t know what that is, but we fear that it’s another deviation from standard policy development practice just like the IRT was several years ago, when trademark interests were permitted to self-select a group of “experts” to recommend rights protections and to operate behind closed doors in violation of basic ICANN policy – and the resulting “implementation” proposals set off a year and a half of contentious policy debates before the present URS elements were settled upon.
So far as reconfiguring the URS, that sounds like a major recasting of its substantive elements, and that is hardly mere implementation of a settled mechanism but a reopening of policy decisions that belongs back in ICANN’s standard policy development process with full community participation and input, not some invented on the fly “summit session” – especially since it references “a process to develop and finalize [a] URS model”.
Will these summit sessions be held in conjunction with ICANN public meetings or in other locations at other times? More importantly, who will be invited and able to attend in addition to corporate trademark interests? And why is the primary goal to “arrive at a lower cost model”, which places an artificially low cost for complainants above competing and more worthy goals such as due process for respondents? What does ICANN think can be jettisoned from the current description of URS in the New gTLD Applicant Guidebook to achieve that low cost goal, since they have acknowledged it can’t be met to implement the URS as it now stands? Does it really believe a credible dispute resolution process can be provided even for “slam dunk” infringement cases at the promised price point when expert trademark attorneys charge $600-plus per hour and the dispute providers must add on their own administrative costs?
We would suggest that ICANN has its priorities backwards. The goal should be a credible URS that achieves its original purpose of an effective, narrow supplement to the UDRP for very clear cut cases of infringement, yet one that still balances complainant and registrant rights. Once that model is settled upon and locked down with finality ICANN should issue a request for proposals (RFP) and let the resulting bidding process tell it through market testing what credible arbitration providers require as reasonable compensation for administration. In other words, the main goal should be the quality of the process, not the price.
We also think that one more thing is clear – the more the URS is altered to look like the UDRP the more costly it will be. We have strongly opposed trademark interest suggestions that the URS burden of proof be lowered and a domain transfer option added because that would convert the URS into a bargain basement substitute for the UDRP, not a narrow supplement as intended. To the extent that low cost is a major consideration the URS must be reconfigured to be narrower, not broader, because the more it resembles the UDRP the higher its administrative costs if it is to be credible and fair.
These brief budgetary references raise many questions of great concern to potential domain registrants at new gTLDs – as well as those at incumbent gTLDs, since the IP community has made clear it would like to foist URS on .com and the rest the moment it gets a chance. But it now looks like the elements of the URS are far from settled, despite earlier indications that they were pretty well set for the first application round and all that lay ahead was fashioning the technical mechanics of implementation. ICA will be watching this very closely, asking tough questions, and participating in every step of the process.
As for that goal of final implementation in June 2013, time will tell – but it seems quite ambitious if ICANN really means to reopen the entirety of the substantive URS debate. Stay tuned.