[Comments-org-renewal-18mar19] EFF and DNRC Oppose the Addition of Censorship-Promoting Terms to the .ORG Registry Agreement

[Mitch Stoltz]

The Electronic Frontier Foundation and the Domain Name Rights Coalition 
submit the following comments on the renewal of the .org Registry 
Agreement between ICANN and Public Interest Registry (PIR). As 
organizations that promote freedom of expression, oppose censorship, and 
pursue sound governance of the Internet, we have serious concerns about 
many of the proposed changes to the Agreement, particularly 1) the 
imposition of “Rights Protection Mechanisms” on the .org top-level 
domain; 2) permitting Public Interest Registry to develop new and 
open-ended “Rights Protection Mechanisms;” and 3) applying the 
improperly created “Public Interest Commitments” to the .org TLD in a 
manner that will permit PIR to regulate and censor Internet content.

*1.**Trademark Claims and URS Are Unnecessary and Harmful in the .org TLD*

The Trademark Claims Notices and Uniform Rapid Suspension (URS) were 
developed by the ICANN community specifically for the new generic 
top-level domains. They were developed to address the concerns of some 
trademark holders that the creation of many new gTLDs would lead to a 
wave of cybersquatting on domain names that could not be addressed by 
the existing Uniform Dispute Resolution Process (UDRP). That wave has 
largely failed to materialize, and the efficacy of Trademark Claims and 
URS is currently under review by the ICANN community.

Procedurally, it is inappropriate for the ICANN organization to impose 
these mechanisms on .org, a legacy TLD that dates from the earliest days 
of the domain name system. Such a move must come, if at all, from the 
ICANN community after an evidence-based discussion. ICANN staff have 
presented no evidence of any need for Trademark Claims and URS in the 
.org TLD. In fact, the only rationale stated in the proposal is “to 
better conform with the base registry agreement.” 
https://www.icann.org/public-comments/org-renewal-2019-03-18-en. This is 
not a sufficient or even rational justification, given the significant 
differences between the .org TLD and the new gTLDs. The .org TLD, by 
long-established norm, is home to millions of nonprofit organizations of 
all kinds. The new gTLDs are less used, and are primarily marketed to 
commercial users. ICANN’s principles of multistakeholder evidence-based 
policymaking require that a change this significant come, if at all, 
from the community, not from bilateral discussion between ICANN staff 
and Public Interest Registry.

Substantively, Trademark Claims and URS are inappropriate for the .org 
TLD. The Working Group for Review of all Rights Protection Mechanisms 
has uncovered substantial evidence that Trademark Claims Notices 
received by people who seek to register a domain name tend to deter 
registrations that would not infringe a trademark or otherwise invade 
the legitimate rights of a trademark holder. Claims Notices, which warn 
of the possibility of infringement, can be misleading for non-commercial 
users, because non-commercial use of a word or phrase is not trademark 
infringement as a matter of law. Because the .org TLD is used primarily 
by nonprofit organizations engaged in a variety of charitable, 
educational, religious, scientific, and public interest activities, 
their uses of a domain name are far more likely to be noncommercial, and 
thus outside any exclusive right of a trademark holder. Warning 
noncommercial users to avoid registering a domain name because of the 
possibility of trademark infringement is similar to warning residents of 
tropical climates to wear heavy coats because of the possibility of 
snowstorms. Both warnings, applied in the wrong context, would cause 
more harm than they prevent.

**

*2.**Any New RPMs for .org Must Be Developed by the ICANN Community, Not 
Imposed Unilaterally By Public Interest Registry*

**

The proposed new Registry Agreement would also allow Public Interest 
Registry “to develop additional rights protection mechanisms” 
unilaterally. Experience in the new gTLDs has shown this to be a 
dangerous proposition. So-called rights protection mechanisms are, at 
best, compromises between trademark holders’ interest in enforcement and 
the broader public’s right to register and use domain names as a vital 
avenue of free expression. As such, they implicate public and private 
rights that may not line up with a single registry operator’s 
priorities. Some new gTLD registry operators have used the unilateral 
ability to create new rights protection mechanisms to institute 
mechanisms that were considered and rejected by the ICANN community as 
insufficiently protective of free speech rights. For example, registry 
operator Donuts enforces “Domain Protected Marks List” and “DPML Plus” 
policies that allow trademark holders to withdraw a name from use by 
others across hundreds of gTLDs, thus interfering with millions of 
potential non-infringing uses of those names by others. ICANN should not 
permit Public Interest Registry to impose its judgment about the proper 
balance of public and private rights in domain names upon millions of 
non-profit organizations by fiat, bypassing community input.

*3.**The Public Interest Commitments Impermissibly Invite Regulation of 
Internet Speech and Content*

**

The so-called “Public Interest Commitments” are a set of requirements 
that were added to Registry Agreements for the new top-level domains. 
They were created and imposed by ICANN staff without community input. 
They purport to impose a general obligation on registries and registrars 
to regulate the contents of websites and Internet applications to 
prevent “copyright infringement,” “deceptive practices,”or other 
“activity contrary to applicable law,” and to “provid[e] consequences 
for such activities including suspension of the domain name.” These 
provisions, in effect, repurpose the domain name system from a global 
system of unique identifiers for information resources to a global 
regulator of speech in which Internet users around the world must 
conform to a vague, inconsistent set of national laws, interpreted and 
enforced by numerous private corporations, or risk losing their domain 
names. And they run directly counter to ICANN’s mission statement, which 
states that “ICANN shall not regulate (i.e., impose rules and 
restrictions on) services that use the Internet's unique identifiers or 
the content that such services carry or provide.” 
https://www.icann.org/resources/pages/governance/bylaws-en/#article1. 
The mandatory and voluntary “Public Interest Commitments” are already 
being used to justify registry-imposed censorship of Internet content in 
the new gTLDs. They are utterly inappropriate for the legacy TLDs, 
especially .org, and the special circumstances of millions of domain 
names registered to organizations dedicated to free expression and 
engaged in lawful critique, including critique of companies and their 
products, services and practices.

**

*4.**Deletions to .Org Renewal Agreements*

Accordingly, and in direct support of the issues and concerns expressed 
above, EFF and DNRC call for the deletion of the following provisions of 
the .org renewal agreement.We note that none of the contractual terms 
listed below were ever discussed or intended to be applied to legacy 
TLDs when reviewed and negotiated in 2009 and 2010.Inclusion of these 
contractual terms, without GNSO discussion, review and agreement of 
their application to legacy TLDs in general and .org in particular would 
be disastrous to noncommercial speech online and to the multistakeholder 
process.

*_Deletions necessary to address the concerns raised above: _*

*Section 2.8*: Protection of Legal Rights of Third Parties

*Section 2.17*: Additional Public Interest Commitments

*Specification 7: *Minimum Requirements for Rights Protection Mechanisms

*Specification 11*: Public Interest Commitments

*Any other *oral or written agreements between ICANN and Public Interest 
Registry that allow rights protection mechanisms outside of those 
explicitly approved by the GNSO Council and ICANN Board for legacy TLDs, 
such as UDRP

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