[bc-gnso] ICANN Issues "UDRP Providers and Uniformity of Process -- Status Report" -- Request for BC Response

Phil Corwin psc at vlaw-dc.com
Sun Jul 21 16:55:57 UTC 2013

On July 19th, one day after the close of the Durban meeting, ICANN issued the document referenced in the Subject heading at http://www.icann.org/en/help/dndr/udrp/providers/uniformity-process-19jul13-en . In it ICANN stakes out a strong position against placing UDRP providers under contract.

That position is contrary to that of the BC, first articulated in 2010, that ICANN should implement "a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities". That position was most recently restated in our comment on the application of ACDR to become an accredited provider -- "the BC continues to urge the ICANN Board to instruct ICANN staff to expeditiously develop improved standards for the approval of UDRP providers, as well as uniform and enforceable standards governing the administration of UDRP cases by providers." http://forum.icann.org/lists/comments-acdr-proposal-01mar13/pdf7ZdKLP0o82.pdf  That April 13th BC filing also lays out 7 separate non-exclusive areas that "The uniform and enforceable standards developed for all UDRP service providers should address". Admittedly, the BC position uses the term "standard mechanism" rather than "contract" - but whatever the form of that mechanism, it is certainly more than what ICANN has in place now for its relationship with UDRP providers, which is no document or mechanism at all.

I became aware of this through a post at The Domains http://www.thedomains.com/2013/07/20/the-ica-forces-icann-to-issue-a-status-report-on-udrpurs-providers-uniformity-of-process/ . Michael Berkens, who maintains that website, believes that ICANN issued  the statement in response to an article I published at the ICA website last week, and follow-up comments I made at the Public Forum, concerning ICANN's revelation that ICANN was reversing its May written statement that it was developing and would place all URS providers under contract - as you heard at the Forum, ICANN staff now maintains that the MOU entered into with NAF and ADNDRC  is the contract and that nothing beyond that 2-page document is being developed.

As you can see from the comment I posted in response at The Domains, I disagree with that assessment. First of all, the "Status Report" seems like something that would have taken more than a day or two to compose, vet and receive final approval. Also, I take ICANN at its word in the opening paragraph of the Status Report that the document is the culmination of an effort initiated in 2010 to undertake a review of its relationship with UDRP providers.

However, assuming that this document has indeed been in the works for  the past three years, I believe that the timing of its release raises very serious questions about the process that produced it:

*         Why was this Status Report released one day after the conclusion of the Durban meeting? If it had been released even one week earlier it could have been the focus of discussion among various constituencies and advisory groups, as well as the GNSO, and could have been addressed at the Public Forum. My own disturbing and reluctantly reached  conclusion is that the release was likely delayed until the 19th to prevent any such discussion in Durban.

*         Why was there no public comment solicited in regard to a draft version of the document, and why has it been released without any solicitation of comment from the community? Further, did the Board ever review this document before it was released ( I know of no Board meeting minutes that in any way reference it).

*         Why has there been no announcement of the document's release at the News and Press tab of the ICANN website http://www.icann.org/en/news ? ICANN's usual practice in releasing a document that has been in development for three years would be to highlight it with a public announcement.

The remarkable heart of this document is a conclusion that contracts between ICANN and UDRP providers are infeasible, not useful, cumbersome, pointless because unlikely to produce any change in the outcome of any aspect of the UDRP process - and would actually make it more difficult for ICANN to take necessary corrective action (although, so far as I know, ICANN has never taken corrective action against any UDRP provider for anything, and the document cites zero examples of such corrective action).  I do not agree with those conclusions, and explain why in my comments posted at The Domains.

However, I have more than just substantive disagreement -- I am concerned that this document is a preemptive, top-down, staff-authored declaration issued without the benefit of any community feedback or Board consideration that severely prejudices a future community discussion that has yet to be initiated. I refer to the potential review of the UDRP that the GNSO Council determined would be initiated no sooner than 18 months after the first introduction of new gTLDs (in Spring 2015, assuming the first gTLDs launch this fall).  Any such future discussion, when it addresses the nature of ICANN's relationship with UDRP providers, will take place under the shadow of what is a clear statement of strong staff opposition to any suggestion of a contractual or similar relationship in regard to "uniform and enforceable standards governing the administration of UDRP cases by providers".

While I will not reiterate all my substantive responses to the Status Report (a preliminary version is at The Domains, and I will probably write more on this) I feel that I must bring to the BC's attention a central tenet that I find completely non-credible. Faced with the need to rationalize why placing URS providers under a contract (and Amy Stathos stressed in her oral response to me at the Public Forum that the MOU is a contract, whatever I think about its adequacy) is acceptable, while contemplating a contract with UDRP providers is unacceptable, the Report makes the remarkable assertion that "Unlike the UDRP, the URS is not based on a policy."

I find that assertion astounding. For the following reasons:

*         First, if the URS Right Protection Mechanism is not based upon a Policy that its presence in the Applicant Guidebook (AG) is completely illegitimate and it should be deleted at once.

*         Second, that assertion is completely contrary to the rationale articulated by the Board Governance Committee on May 16, 2013 when it issued its Recommendation in response to the NCSG's request for reconsideration of the adoption of "Trademark-plus-Fifty".  A key finding in that document is: "The staff action to allow trademark holders to include, along with a Clearinghouse record of a verified trademark, up to 50 names that had previously been found to have been abusively registered or used, is implementation of the established ICANN policy found in Recommendation 3, as are the other rights protections mechanisms within the New gTLD Program." (Emphasis added) Well what is the other rights protection mechanism that, in addition to the TMCH, constitutes implementation of the established ICANN policy? - It is of course the URS! So here we have the BGC stating just two months ago that the RPMs in the AG are rooted in policy, yet now ICANN staff asserts that the URS is not based upon a policy!

*         Finally, if the declaration that the URS is not based upon a policy was somehow meant to assert that an MOU is needed for URS providers because, unlike the UDRP, there is inadequate implementation information in the AG - well that is also inaccurate. If you review the URS portion of Module 5 of the AG http://newgtlds.icann.org/en/applicants/agb/urs-04jun12-en.pdf you find a very detailed document of 11 pages length. In fact, the URS section of the AG is much longer, and has much more procedural detail, than the UDRP does http://www.icann.org/en/help/dhttp://www.icann.org/en/help/dndr/udrp/policyndr/udrp/policy<http://www.icann.org/en/help/dhttp:/www.icann.org/en/help/dndr/udrp/policyndr/udrp/policy> . So, if "ICANN has used Memoranda of Understanding to govern the relationship with each of the selected URS providers, in which each of the URS providers agree to implement the URS services in accordance with the procedures laid out in the Applicant Guidebook, as they might be amended from time to time.", why wouldn't some sort of contractual relationship requiring UDRP providers to implement the much less detailed UDRP be appropriate?

In conclusion, I hereby request that BC leadership and members consider preparing and sending a communication to the CEO and the Board raising concerns about the timing of the release of this document, the lack of public comment or Board review prior to its release, and its potentially prejudicial impact on future community discussion of the UDRP. I leave whether that communication should also take issue with any of its substantive conclusions up to the BC membership.

While I have posted this message on the public BC mail list because I want my own views to be publicly available, I have no objection to taking internal BC discussion of my request to our private mail list.

Thank you for your consideration.

Best to all, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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