Content regulation coming to .ORG?

[Mueller, Milton L]

Glenn:
We don’t need to represent the entire ICANN community here, we need only be concerned with NCSG views. I am pretty sure there is a strong rough consensus within NCSG on the views set out in that EFF-DNRC comment.

Would PIR oppose that statement? First, they are part of the registry constituency and a principal on the revised contract, so they could express their own views. Second, We have had several interactions with PIR on this issue over the years. Based on past interactions my impression is that they are heavily pressured by IPR interests who want them to do their policing work for them and appreciate our providing some basis for pushback.

--MM

From: NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> On Behalf Of Glenn Ricart
Sent: Tuesday, May 7, 2019 1:14 PM
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: Content regulation coming to .ORG?

The EFF and DNRC comments point out there has been insufficient discussion on these topics and therefore no agreement within the ICANN community.  The comments also suggest that the safer, default position is to leave them out .  Would PIR oppose this position?

  ...  Glenn


On Tue, May 7, 2019 at 8:33 AM Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>> wrote:
I support these comments.
Much more in line with NCSG values and positions than the price cap stuff.

Dr. Milton L Mueller
School of Public Policy
Georgia Institute of Technology



From: NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>> On Behalf Of Kathy Kleiman
Sent: Friday, May 3, 2019 6:02 PM
To: NCSG-DISCUSS at LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>
Subject: Content regulation coming to .ORG?

________________________________

Hi All,

In my emails yesterday, I mentioned that removing price caps is only one problem in the .ORG renewal agreement and there are larger ones.  Below please find the comments of EFF and DNRC to ICANN opposing the .ORG contract renewal because it allows .ORG to create special new rights for intellectual property owners (outside the Multistakeholder process) in this largely noncommercial space.   That's a big problem!

Tx to Mitch Stoltz of EFF as primary drafter. The two-page comment below and to share.

One particularly poignant citation: "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."

Best, Kathy

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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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