[bc-gnso] Important to hear from members -- Reconfiguring the URS?

Fri May 4 14:41:04 UTC 2012

In response to John's inquiry - I'm not the one characterizing this as a policy matter, I am the one reporting that ICANN has stated it will develop "effective and feasible policy...rules" for post-delegation RPMs, and that it intends to "reconfigure" (as in revisit and alter) the URS.

The relevant provisions in the draft budget are:

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.

...and...

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.

The first reference characterizes this as a process to develop policy rules, and differentiates that from administrative rules (the latter falling within the implementation category).

The second reference characterizes their goal as reconfiguring URS to meet the promised price point, and to put out a Request for Proposals (RFP) from prospective providers based on that newly reconfigured RFP model, not on the current model.

Their intent clearly goes beyond mere implementation of what is in the Guidebook now - in fact, they explicitly state that there is a "gap" between the features of the URS as it now stands and the low filing fee that was promised. (Those 'features' are fairly fundamental, so it's not clear to me how much they can be tinkered with.)

I also want to point out that what's in the Budget is very different from the responses Kurt gave to questions I raised about URS implementation at the last two ICANN meetings. (I have taken it as a given that URS will, in fact must, be in place around the time that the first new gTLDs get beyond sunrise sales and open domain purchases to the general public - and my goal in raising questions has been to assure that sufficient time and thought  is afforded to URS implementation so that  it is a credible and effective mechanism that affords adequate due process to both parties. Also, in an aside, if ICANN fails to meet its "goal" of having the program and providers in place by June 2013 that could negatively impact the timing of new gTLD launches.)

In Dakar Kurt conceded that arbitration providers like WIPO and NAF had informed ICANN that they would not bid on any URS RFP because the pricing would not accommodate the fees they pay to qualified experts. He also stated that an Implementation Advisory Group (IAG) would be established for URS, just like the one that was already up and running for the Trademark Clearinghouse, within a month - that obviously never happened.

In San Jose he stated that an RFP would be issued within a month to solicit URS providers. That statement has now been negated by the Budget document, which indicates that the RFP is many, many months away, after the two summits have been held and there is further consultation with current UDRP providers and the community, and will only be issued after the URS has been reconfigured into a significantly revised model. It is unclear from this statement whether the entire ICANN community will be able to participate in those Summits or whether they will be restricted to a narrower group of participants.

Adding all that up, I think it's pretty clear that what is intended for URS is not mere implementation but substantive recasting that falls within the policy category.

Final policy thought: I think it is axiomatic that URS must be narrowed if achieving the promised $300-500 price point is ICANN's top priority and is to be realized (although I am skeptical that can be met in any circumstances, given what expert trademark attorneys charge for their time - even a "slam dunk" case requires some time to research and affirm the complainant's rights, evaluate any registrant response, and prepare a report on the decision). The filing fee for a single domain, single panelist UDRP is about $1300; if the URS were to be "reconfigured" (as some want, but ICA opposes)  to lower the complainant's burden of proof to the same as that for UDRP then the consideration a case must be afforded by the expert increases because it contemplates cases that are more shades of grey than black and white - so that is incompatible with pricing it at less than one-half or even less than one-quarter of the current UDRP filing fee. The promised fee range does not pay for even one hour of an expert's time - and the arbitration provider must add on their own administrative costs.

Final process thought: In a time of continuing economic stress holding these URS "summits" on a date and at a location other than in conjunction with the Prague and subsequent full ICANN meetings imposes an economic burden that will likely prevent many who might wish to participate from doing so (assuming they are allowed to, as it's not clear that the full community will be invited or welcome). I assume they will provide an opportunity for remote participation, but that's never as informative or effective.

Philip S. Corwin, Founding Principal
Virtualaw LLC
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From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Marilyn Cade
Sent: Friday, May 04, 2012 9:26 AM
To: John Berard; Steve Delbianco; Chris at Andalucia; Elisa Cooper; bc - GNSO list
Cc: Zahid Jamil
Subject: [bc-gnso] Important to hear from members -- Reconfiguring the URS?

Thanks, John, the discussion about URS needs to include the full BC.

Many members have concerns, and I will note that that in the IRT last approach, some BC members were excluded from participation, in favor of others in the community, so we were not balanced in our BC participants. That was a serious challenge within the BC.

Whether a URS; WHAT URS, and HOW URS is a serious topic to more than a few BC members.

As to whether it is implementation/ and  how that discussion progresses, versus if it is policy, is not clear, right now.

What was the policy recommendation that created it?
Should that policy recommendation be revised?
Is this a change in how to implement a policy recommendation or a proposal to change/modify a policy recommendation?

Finally, Summit? What is that? What are the parameters? Did the SO/AC/SG/Constituencies support such a budget proposal, and how and who would be funded to participate?

The IPC may love this; the BC and ISPCP need to study it.

As to what is 'returned' to Council to provide policy advice on, this is a seriously challenging area for us, I fully agree.
We  do want to hear from our broader membership on first this particular issue, and then we will talk further in the BC, probably in Prague, on 'what is policy and what is implementation'. I think that we all need to develop clarity on that for future.

Whether the BC would take up a further policy clarity discussion on that latter topic would then come from Steve after the BC members offer views.

Short term: My view on this for now: I want to see a staff discussion doc that explains the problems. Curtailing the URS and making it less useful doesn't excite me. paying a bit more an having useful option -- willing to discuss and understand. ICANN staff seem headed in a direction against that. Personal view: pay more/have a viable option. IF not, then no use, so don't proceed with URS.

PERSONAL views only in that view. Discussion from informed members critical for next 36 hours.

Marilyn Cade, BC Chair

________________________________
Subject: Fwd: [council] Reconfiguring the URS?
From: johnberard at aol.com<mailto:johnberard at aol.com>
Date: Thu, 3 May 2012 16:09:38 -0400
CC: zahid at dndrc.com<mailto:zahid at dndrc.com>
To: marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>; sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>; chris at andalucia.com<mailto:chris at andalucia.com>; elisa.cooper at markmonitor.com<mailto:elisa.cooper at markmonitor.com>
Do we agree with Phil that this is a policy matter?  My instinct is to say it is not, but...

Berard

Sent from my iPhone

Begin forwarded message:
From: "Neuman, Jeff" <Jeff.Neuman at neustar.us<mailto:Jeff.Neuman at neustar.us>>
Date: May 3, 2012 2:09:09 PM EDT
To: "council at gnso.icann.org<mailto:council at gnso.icann.org>" <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: [council] Reconfiguring the URS?
All,

Thanks to Phil Corwin for catching this, but buried in the new budget document (http://www.icann.org/en/news/public-comment/op-budget-fy13-01may12-en.htm) just put out for comment is a note on "reconfiguring" the URS.  Excerpt provided below.   I guess they could not find any URS providers that could do it for the costs that they had projected, so ICANN is holding 2 summits to work on a new model.  My question for the Council, is whether this is really a policy issue that should be referred back to the GNSO Community as opposed to having  ICANN on its own resolving after holding 2 summits.  Given the controversy around this over the past few years, any tweaks to the URS should probably go back to the community in my opinion.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
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.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs
21575 Ridgetop Circle, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / jeff.neuman at neustar.biz<mailto:jeff.neuman at neustar.biz>  / www.neustar.biz<http://www.neustar.biz/>

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