Last week we noted that the draft ICANN FY 2013 Budget contained $175,000 in funding for two “Summits” to be devoted to reconfiguring the Uniform Rapid Suspension (URS) rights protection mechanism for new gTLDs in order to achieve a “lower cost model” (http://internetcommerce.org/URS-Summits). Further inquiries made to members of the ICANN community — including a member of the Board, several members of the GNSO Council, and even members of the IP Constituency – revealed that all were equally clueless as to where the “Summits” concept had come from or any of its operational details. The GNSO Council, which has policymaking authority for all gTLDs, added the issue of the Summits to the agenda for its May 10th meeting.
In preparation for that meeting Kurt Pritz, ICANN’s Senior Vice President for Stakeholder Relations, sent an e-mail to the Council providing this explanation of the Summits line item in the Budget (http://gnso.icann.org/mailing-lists/archives/council/msg13030.html):
Uniform Rapid Suspension:
There is a budget line item identified as “URS Summit” Implementation work conducted on the URS to date indicates that the the implementation will not attain the cost target of $300-$500 in URS fee per case. This is based on discussions with WIPO staff, direct communication with the IPC, and examples understood from the ICM registry and Nominet. Because the fee target is a primary goal of the URS, additional work and study should be undertaken to determine if amendments to the program might attain the fee goal and retain the safeguards and other features of the program. This study must be undertaken by a community group. While the scope of the effort is not yet defined, it was necessary to reserve resources for the work in the ICANN’s FY13 budget. The line item in the budget is the placeholder for those resources while the best way to accomplish the work can be designed. Again, the work will be done through a bottom-up, community discussion similar to the the work done to create and review the URS in the first instance. The timing of the budgeting process required that we create the line item before planning for this work could be drafted and worked through the community.
Parsing this explanation we can glean the following:
- · The $175,000 allocated to the Summits in the budget is just a placeholder for the resources estimated to be required for reexamination and possible reconfiguration of the URS, and no commitment has been made to hold Summits nor have any details of their possible operation been developed.
- · URS implementation work done to date has not been open to the full community. ICANN staff have discussed implementation of the URS with only a narrow select group, including WIPO and the IPC, but not with other third parties and ICANN constituencies having a strong stake in its operation.
- · Any work and study undertaken to reconfigure the URS will seek to balance the goal of a low fee with retention of safeguards and other features; the scope of the effort to be undertaken has not yet been defined..
- · Further study of the URS will be undertaken by a “community group” and “done through a bottom-up, community discussion similar to the the work done to create and review the URS in the first instance”.
On one hand, we are happy to learn that details about the potential Summits have not been worked out absent consultation with the ICANN community.
On the other hand, we are disturbed that ICANN staff have proceeded with and discussed URS implementation with only a narrow group of trademark interests, rather than establishing an open implementation group for the URS such as the one that has been operating for the Trademark Clearinghouse. Those limited discussions, at odds with ICANN commitments to transparency and inclusiveness, have led to a conclusion that the elements of the URS need to be reopened to attain a pricing goal that, in our view, has been unrealistic from the start. We started asking at last year’s Dakar meeting when URS implementation would start, and have been repeatedly told that process would start soon – so it’s quite disturbing to now learn that it’s been going on for quite a while but has only involved IP interests.
In our view, the first thing that is now required is a community-wide discussion of whether the URS should be reopened at all, or whether the price of a URS procedure should just be adjusted to accommodate the present model. It is jumping the gun to set ICANN on a course to reconfigure the URS based solely on discussions with the IPC and WIPO. At a minimum, details and documentation should be provided to the entire community in regard to what aspects of the current URS model require higher pricing, and exactly what the cost estimate is for the current model. In short, reopening the URS at this point in the new gTLD launch process is a critical threshold policy question that should be decided by the entire ICANN community that participated in shaping the URS – and the URS should only be reopened for reconfiguration if there is a community consensus to do so.
Also, while we are happy to see references to the “community” in describing the coming process for URS re-examination, it is unclear to us how representative the “community group” will really be, given that the coming process is characterized as being similar to the work that created and reviewed the URS in the first instance. We recall that the URS was created in the first instance by an IRT that was not fully inclusive and that operated in a non-transparent manner at odds with ICANN policy, and that the broad consternation over that led to the creation of a far more inclusive STI-RT which reviewed and revised the IRT’s work (and that the trademark community, unhappy with the STI-RT’s work product, then lobbied the GAC to put pressure on the ICANN Board for further changes – and apparently have now been in discussions with ICANN staff seeking additional URS modifications to elevate that low price target over competing goals). We recount that history of the URS to date for the purpose of reminding everyone that the URS has already been extensively debated in a somewhat contentious process that has extended over several years, and that reopening this can of worms will likely revive that debate.
ICA intends to be fully involved as ICANN fills in the details of how this reexamination and reconfiguration will proceed, with the paramount goal of assuring that registrants are afforded adequate due process in any URS arbitration proceedings. We also intend to maintain our call that URS providers be bound by a standard contract that defines and limits their powers and provides
ICANN with flexible enforcement tools. We have no desire to make the URS unnecessarily expensive for rights holders, who have legitimate concerns about potential cybersquatting at new gTLDs, but we remain skeptical that a very low fee is compatible with the retention of adequate safeguards for registrants.
The final details of the URS are important to a group much broader than potential registrants in new gTLDs. The IPC and other trademark groups have urged ICANN to mandate the URS for .Com in the current renewal contract being negotiated with VeriSign, and while we have taken a contrary stance and hope that ICANN will reject requests for such a contractual mandate there’s little doubt that extending the URS to incumbent gTLDs will be a major issue if and when UDRP reform is finally addressed. So it’s important for all registrants that URS be done right.
Finally, we would think that the applicants for new gTLDs who have just provided ICANN with $350 million in application fees have a significant stake in the resolution of this issue – or whether it should be reopened at all. It’s our understanding that new gTLDs will be unable to offer registrations to the general public until the URS is in place, including final arrangements with one or more arbitration providers. It’s now clear that the details of the process for reopening the URS have yet to be determined, and based on past history the revived debate could chew up considerable time. ICA has been calling on ICANN to commence URS implementation since last fall, but ICANN staff have apparently been swayed by IP interests to propose reopening the substance of the URS regardless of how much additional delay that may cause.
So, while the budget placeholder notation states a goal of having the URS in place by June 2013 that projection may be as over-optimistic as the price target, and the resulting delay could make the TAS timeout seem blessedly brief. Also, if the final URS is perceived as unbalanced in terms of registrant rights that could well dampen the volume of registrations that new gTLDs are counting on for financial success. In short, the very success of the new gTLD program may well be determined by answering the questions of whether and how URS will be reconfigured.