During its August 22nd meeting the ICANN Board approved renewal of the registry agreements for the incumbent .Biz, .Info, and .Org gTLD registries. All three contracts were adopted in the identical form to the drafts published for public comment earlier this year.
In taking that action the Board did not adopt the suggestion of ICANN’s Intellectual Property Constituency (IPC) that all three agreements be amended to include “a commitment to adopt the URS if, after a review of its functioning in the new gTLDs, the URS appears to be reasonably effective in achieving its objectives.” That weak and vague standard would give no consideration to whether the substantive and procedural due process rights of domain registrants had received adequate protection in the administration of the as yet untested Uniform Rapid Suspension (URS) rights protection mechanism.
Even worse, adoption of the IPC’s proposed standard would have ignored a December 2011 Resolution adopted by ICANN’s gTLD policy-making GNSO Council, supported at that time by the IPC, which explicitly tied consideration of adopting the URS at incumbent gTLD registries to overall UDRP review and reform. That Resolution evidenced a Council decision that “a [UDRP] PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. . . to allow the policy process to be informed by data regarding the effectiveness of the URS, which was modeled on the UDRP, to address the problem of cybersquatting.”
In response to the IPC proposal, ICA transmitted a letter to ICANN’s Board Chairman and CEO on August 20th stating “we urge the Board to reject the IPC request for contract amendments that would permit imposition of the URS on the registries for which renewal contracts are being considered absent the relevant policy process called for by the GNSO Council in December 2011. Requiring the URS to be implemented at incumbent gTLDs should only occur after full community-wide consideration of the matter, informed by an Issue Report and a subsequent PDP that considers expansion of the URS within the broader context of UDRP reform.”
All three registry renewal Resolutions adopted by the Board contain identical language that references the IPC suggestion and the ICA response:
There was a specific community concern raised, and subsequent letters provided to the Board, regarding the inclusion of a requirement for the Uniform Rapid Suspension (URS) to be included in the renewed agreement, as well as requiring the Registry Operator to use only Registrars contracted under the 2013 RAA. In taking this decision, the Board considered the concern that extending the requirement to use the URS to existing gTLDs (which currently is only a requirement for Registry Operators approved through the New gTLD Program) would possibly be a matter for policy development. In addition, requiring the imposition of the URS today to millions of domain names may be premature given the implementation schedule for the URS processes. (Emphasis added)
While ICA appreciates the Board’s rejection of the IPC proposal, we are concerned that its statement that requiring the URS at these registries “would possibly be a matter for policy development” either misstates our position – which is that it absolutely requires a PDP under the relevant and still binding GNSO Council resolution – or is an attempt to hedge ICANN’s own position on this matter. Unlike new gTLDs, there is no existing policy that requires adoption of the URS at existing registries and hence there is nothing to implement in that regard unless and until such a policy exists.
However, now that these registry contracts have been approved, they—along with the recently renewed .Com and .Net agreements — all run for six-year terms that extend well past the date when the GNSO Council called for delivery of “a new Issue Report on the current state of all rights protection mechanisms implemented for both existing and new gTLDs” and initiation of a PDP to consider revisions of the UDRP. Those dates were, respectively, “no later than eighteen (18) months following the delegation of the first new gTLD” and “after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months”. Based upon current projections for the progress of the new gTLD program, both of those dates should arrive in 2015 – helping to ensure that consideration of the URS at incumbent gTLDs is properly addressed through the regular order of ICANN’s policy development process rather than via contract amendments that bypass it.