STATEMENT OF DISSENT ON RECOMMENDATION #20 and
IMPLEMENTATION GUIDELINES F, H, & P of
the GNSO’S NEW GTLD COMMITTEE REPORT from
the NON-COMMERCIAL USERS CONSTITUENCY (NCUC)
RE: DOMAIN NAME OBJECTION AND REJECTION PROCESS
25 July 2007
Recommendation #20
The Non-Commercial Users Constituency (NCUC) Dissenting Statement on
Recommendation #20 of the New
GTLD Committee’s Final Report should be read in combination
with Implementation Guidelines F, H & P, which detail the
implementation of Recommendation #20. This statement should also
be read in conjunction with its statement
of 13 June 2007 on the committee’s draft report.
NCUC cannot support the committee’s proposal for ICANN to establish a
broad objection and rejection process for domain names that empowers
ICANN and its “experts” to adjudicate the legal rights of domain name
applicants (and objectors). The proposal would also empower ICANN
and its “experts” to invent entirely new rights to domain names that do
not exist in law and that will compete with existing legal rights to
domains.
However “good-intentioned”, the proposal would inevitably set up a
system that decides legal rights based on subjective beliefs of “expert
panels” and the amount of insider lobbying. The proposal would
give “established institutions” veto power over applications for domain
names to the detriment of innovators and start-ups. The proposal
is further flawed because it makes no allowances for generic words to
which no community claims exclusive “ownership” of. Instead, it
wants to assign rights to use language based on subjective standards
and will over-regulate to the detriment of competition, innovation, and
free expression.
There is no limitation on the type of objections that can be raised to
kill a domain name, no requirement that actual harm be shown to deny an
application, and no recourse for the wrongful denial of legal rights by
ICANN and its experts under this proposal. An applicant must be
able to appeal decisions of ICANN and its experts to courts, who have
more competence and authority to decide the applicant’s legal
rights. Legal due process requires maintaining a right to appeal
these decisions to real courts.
The proposal is hopelessly flawed and will result in the improper
rejection of many legitimate domain names. The reasons permitted
to object to a domain are infinite in number. Anyone may make an
objection; and an application will automatically be rejected upon a
very low threshold of “detriment” or an even lower standard of “a
likelihood of detriment” to anyone. Not a difficult bar to meet.
If ICANN attempted to put this policy proposal into practice it would
intertwine itself in general policy debates, cultural clashes, business
feuds, religious wars, and national politics, among a few of the
disputes ICANN would have to rule on through this domain name policy.
The proposal operates under false assumptions of “communities” that can
be defined, and that parties can be rightfully appointed
representatives of “the community” by ICANN. The proposal gives
preference to “established institutions” for domain names, and leaves
applicants’ without the backing of “established institutions” with
little right to a top-level domain. The proposal operates to the
detriment of small-scale start-ups and innovators who are clever enough
to come up with an idea for a domain first, but lack the
insider-connections and financial resources necessary to convince an
ICANN panel of their worthiness.
It will be excessively expensive to apply for either a controversial or
a popular domain name, so only well-financed “established institutions”
will have both the standing and financial wherewithal to be awarded a
top-level domain. The proposal privileges who is awarded a
top-level domain, and thus discourages diversity of thought and the
free flow of information by making it more difficult to obtain
information on controversial ideas or from innovative new-comers.
Implementation Guideline F
NCUC does not agree with the part of Implementation Guideline F that
empowers ICANN identified “communities” to support or oppose
applications. Why should all “communities” agree before a domain
name can be issued? How to decide who speaks for a “community”?
NCUC also notes that ICANN’s Board of Directors would make the final
decisions on applications and thus the legal rights of applicants under
proposed IG-F. ICANN Board Members are not democratically
elected, accountable to the public in any meaningful way, or trained in
the adjudication of legal rights. Final decisions regarding legal
rights should come from legitimate law-making processes, such as courts.
“Expert panels” or corporate officers are not obligated to respect an
applicant’s free expression rights and there is no recourse for a
decision by the panel or ICANN for rights wrongfully denied. None
of the “expert” panelists are democratically elected, nor accountable
to the public for their decisions. Yet they will take decisions
on the boundaries between free expression and trademark rights in
domain names; and “experts” will decide what ideas are too
controversial to be permitted in a domain name under this process.
Implementation Guideline H
Implementation Guideline H recommends a system to adjudicate legal
rights that exists entirely outside of legitimate democratic law-making
processes. The process sets up a system of unaccountable “private
law” where “experts” are free to pick and choose favored laws, such as
trademark rights, and ignore disfavored laws, such as free expression
guarantees.
IG-H operates under the false premise that external dispute providers
are authorized to adjudicate the legal rights of domain name applicants
and objectors. It further presumes that such expert panels will
be qualified to adjudicate the legal rights of applicants and
others. But undertaking the creation of an entirely new
international dispute resolution process for the adjudication of legal
rights and the creation of new rights is not something that can be
delegated to a team of experts. Existing international law that
takes into account conflict of laws, choice of laws, jurisdiction,
standing, and due process must be part of any legitimate process; and
the applicant’s legal rights including freedom of expression rights
must be respected in the process.
Implementation Guideline P
“The devil is in the details” of Implementation Guideline P as it
describes in greater detail the proposed adversarial dispute process to
adjudicate legal rights to top-level domain names in Recommendation
#20. IG-P mandates the rejection of an application if there is
“substantial opposition” to it according to ICANN’s expert panel.
But “substantial” is defined in such as way so as to actually mean
“insubstantial” and as a result many legitimate domain names would be
rejected by such an extremely low standard for killing an application.
Under IG-P, opposition against and support for an application must be
made by an “established institution” for it to count as “significant”,
again favoring major industry players and mainstream cultural
institutions over cultural diversity, innovative individuals, small
niche, and medium-sized Internet businesses.
IG-P states that “community” should be interpreted broadly, which will
allow for the maximum number of objections to a domain name to count
against an application. It includes examples of “the economic
sector, cultural community or linguistic community” as those who have a
right to complain about an application. It also includes any
“related community which believes it is impacted.” So anyone who
claims to represent a community and believes to be impacted by a domain
name can file a complaint and have standing to object to another’s
application.
There is no requirement that the objection be based on legal rights or
the operational capacity of the applicant. There is no
requirement that the objection be reasonable or the belief about impact
to be reasonable. There is no requirement that the harm be actual
or verifiable. The standard for “community” is entirely
subjective and based on the personal beliefs of the objector.
The definition of “implicitly targeting” further confirms this
subjective standard by inviting objections where “the objector makes
the assumption of targeting” and also where “the objector believes
there may be confusion by users”. Such a subjective process will
inevitably result in the rejection of many legitimate domain
names.
Picking such a subjective standard conflicts with Principle A in the
Final Report that states domain names must be introduced in a
“predictable way”, and also with Recommendation 1 that states “All
applicants for a new gTLD registry should be evaluated against
transparent and predictable criteria, fully available to the applicants
prior to the initiation of the process.” The subjectivity and
unpredictability invited into the process by Recommendation #20 turn
Principle A and Recommendation 1 from the same report upside down.
Besides the inherent subjectivity, the standard for killing
applications is remarkably low. An application need not be
intended to serve a particular community for “community-based”
objections to kill the application under the proposal. Anyone who
believed that he or she was part of the targeted community or who
believes others face “detriment” have standing to object to a domain
name, and the objection weighs in favor of “significant opposition”.
This standard is even lower than the “reasonable person” standard,
which would at least require that the belief be “reasonable” for it to
count against an applicant. The proposed standard for rejecting
domains is so low it even permits unreasonable beliefs about a domain
name to weigh against an applicant.
If a domain name does cause confusion, existing trademark law and
unfair competition law have dealt with it for years and already
balanced intellectual property rights against free expression rights in
domain names. There is neither reason nor authority for ICANN
processes to overtake the adjudication of legal rights and invite
unreasonable and illegitimate objections to domain names.
IG-P falsely assumes that the number of years in operation is
indicative of one’s right to use language. It privileges entities
over 5 years old with objection rights that will effectively veto
innovative start-ups who cannot afford the dispute resolution process
and will be forced to abandon their application to the incumbents.
IG-P sets the threshold for harm that must be shown to kill an
application for a domain name remarkably low. Indeed harm need
not be actual or verified for an application to be killed based on
“substantial opposition” from a single objector.
Whether the committee selects the unbounded definition for “detriment”
that includes a “likelihood of detriment” or the narrower definition of
“evidence of detriment” as the standard for killing an application for
a domain name is largely irrelevant. The difference is akin
to re-arranging the deck chairs on the Titanic. ICANN will become
bogged down with the approval of domain names either way, although it
is worth noting that “likelihood of detriment” is a very long way from
“substantial harm” and an easy standard to meet, so will result in many
more domain names being rejected.
The definitions and guidelines detailed in IG-P invite a lobby-fest
between competing businesses, instill the “heckler’s veto” into domain
name policy, privilege incumbents, price out of the market
non-commercial applicants, and give third-parties who have no legal
rights to domain names the power to block applications for those
domains. A better standard for killing an application for
non-technical reasons would be for a domain name to be shown to be
illegal in the applicant’s jurisdiction before it can rejected.
In conclusion, the committee’s recommendation for domain name objection
and rejection processes are far too broad and unwieldy to be put into
practice. They would stifle freedom of expression, innovation,
cultural diversity, and market competition. Rather than follow
existing law, the proposal would set up an illegitimate process that
usurps jurisdiction to adjudicate peoples’ legal rights (and create new
rights) in a process designed to favor incumbents. The adoption
of this “free-for-all” objection and rejection process will further
call into question ICANN’s legitimacy to govern and its ability to
serve the global public interest that respects the rights of all
citizens.
NCUC respectfully submits that ICANN will best serve the global public
interest by resisting the temptation to stray from its technical
mandate and meddle in international lawmaking as proposed by Rec. #20
and IG-F, IG-H, and IG-P of the New GTLD Committee Final Report.