The Old and New at ICANN- the Internet Key Holder
The Birth of ICANN
The Domain Name System (DNS) allows users to navigate the Internet. Until 1998, the DNS was administered by the Internet Assigned Numbers Authority (IANA). Disputes over domain names evolved from technical wrangles into full-blown disputes with social and political flavours.
IANA was replaced by the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit California corporation, which was established in October 1998. Today, supervision over ICANN is performed by just one government: the United States. The US Government has a contract with ICANN to perform the central coordinating functions of the domain name system and Internet Protocol addresses.
Uniform Name Dispute Resolution Policy (UDRP)
ICANN adopted the Uniform Name Dispute Resolution Policy (UDRP) on 1st December, 1999, following a report issued by WIPO. The UDRP provides that all accredited domain name registrars must abide by its terms. By conscripting name registrars to participate in the UDRP, ICANN was able to create a regulatory regime thereby averting many of the logistical impediments to regulating any Internet based activity. The WIPO Arbitration and Mediation Center was the first dispute resolution provider to be accredited to administer the UDRP.
The key objectives of the UDRP are:
- It is limited to disputes involving deliberate, bad faith, abusive domain name registrations (often termed ‘cybersquatting’);
- Parties may elect to litigate;
- Remedies are restricted to the status of the domain name (i.e; no award of damages)
As an expedient alternative to court options, the UDRP has won international respect. As but one measure of how this legal system has held up, only the rarest of the tens of thousands of UDRP decisions have been successfully challenged in court.
While the UDRP has been used to resolve a significant number of domain name disputes, the abuse of domain name registration by so-called cyber squatters remains a significant problem. One major obstacle for the UDRP is finding a way to overcome the differences in laws among countries.
Seizure of Dishonest Domain Names by the US Government
In later 2010, the US government came up with a new approach to online IP rights enforcement - seizure of the domain names connected to websites that infringe IP rights. In November, 2010, the US Immigration and Customs Enforcement (ICE) agency took out 82 domain names and replaced the original websites to which they pointed with a frightening message from the government, all without any notification or warning to the owners. The Department of Homeland Security (DHS) seized sites directly from ICANN because of complaints filed against them; the agency is not doing so under the auspices of the Digital Millenium Copyright Act (DMCA) or the Combating Online Infringements and Counterfeits Act (COICA), which was created specifically to address the issue of piracy. It has rather executed court-ordered seizure warrants against a number of domain names.
To many agencies and peoples as well, success of the operation was a great surprise.
Under Contemplation: Full scale review of UDRP
Following a series of nearly twenty international consultations involving experts from around the globe, WIPO’s recommendations in the Final Report of the First WIPO Internet Domain Name Process provided the blueprint for the UDRP. ICANN, which at that time had only just been formed, adopted this UDRP model in late 1999. Since then, significant numbers of ccTLD (country code top-level domain) registries have also adopted dispute resolution policies based on that same model.
Since then, several ICANN efforts looked into the odds of amending the UDRP, without culminating in any results, except in 2009, when ICANN adopted WIPO-designed amendments to the UDRP Rules to facilitate paperless pleadings. Some ten years after the UDRP’s inception, trademark owners are now being asked to buy into an unprecedented registration-driven DNS expansion. At the same time, certain of those registration interests, joined by other ICANN stakeholders, are advocating that the UDRP be investigated.
From an IP rights holders’ perspective, there are numerous ways in which the UDRP might be amended. It could:
- Function on stricter timelines and default decisions;
- Its scope could extend beyond trademark rights;
- It could include damages options and ‘loser pays’ models;
- It could be expanded to address certain forms of intermediary behavior;
- It could include the UDRP’s own definition of cyber-squatting.
Any destabilization of the UDRP will impact many parties. However, the process and timing of making changes must be right. There cannot be a rushed-up-irresponsible process for reconstructing the UDRP framework, instead it ought to be the balanced result of appropriately resourced, expert deliberations, grounded in a constructive vision for the UDRP.
ICANN published a report proposing that full-scale review of the UDRP is not recommended. And yet all parties who oppose UDRP review admit that cyber-squatting has not been effectively tackled by it. One major reason for this is that UDRP does not offer a deterrent mechanism. It is not uncommon that cyber-squatters explicitly point out that they know that it would cost at least $15,000 to file a UDRP complaint and thus, it would be advantageous to settle with them for slightly less than that amount.
WIPO has suggested that instead of allowing the UDRP to be placed in the dock, ICANN should first fairly address the following issues:
- the relationship between cyber-squatting and the activities, revenues and budgets of DNS actors;
- the incidence of UDRP cyber-squatting findings in relation to wider trademark abuse in the DNS overall, with filed UDRP cases merely representing the tip of the iceberg; and
- the degree of proportionality between trademark rights enforcement and domain name registration opportunities in the DNS.
Get Set for a new gTLD approval- even if the policy isn’t finished
In February, 2011, ICANN published materials describing discussions, public comment and general progress on the new gTLD (generic top-level domain) program. In May 2011, the latest version of ICANN’s Applicant Guidebook (AGB) for the new gTLD programme was released.
If rumours are to be believed, the programme itself will be approved in Singapore, even though ICANN may itself admit that the AGB needs more work. To those who have been under the belief that there can be no programme approval until the AGB is set in stone will be much surprised. This is n wake of the fact that ICANN hinted last year that the rights protection mechanisms in particular “should be editable by community processes”, i.e. from publication of the final applicant guidebook to the opening of the first round, there will be a considerable amount of time. There was hope that there’ll be opportunity to improve these processes.
The Singaporemeeting gets underway on June 19, with ICANN’s board expected to approve the new gTLD programme on June 24.
ICANN achieved global Internet governance of a political nature, but it did so independently of the nation state system. Other countries have asserted their right to participate in Internet governance. Yet today only one government supervises ICANN. Whither the law and the policy?