ICANN RPM PDP Phase 1 Comment Period is another sham, part 1

ICANN has an open comment period for the  Phase 1 Initial Report of the Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process. It ends in just 14 days, would have a great impact on registrants’ rights and not a single person has submitted any comments to date, as of the time of this post.

To be able to comment, one has to first read the 147 page initial report. Then, one has to contemplate its contents, analyze it, and research related issues, including what its authors removed from it (see below). Then, one has to carefully submit thoughtful comments via an online form that has 192 separate sections!  The document simply describing all the questions in the online form is a whopping 71 pages. To actually submit thoughtful comments would take an enormous amount of time, far more than is available.

For example, when I was a member of that working group (before I was unjustly banished from participation), I submitted numerous proposals to safeguard registrants’ rights, many of which have since been eliminated! These will need to be resubmitted via the public comments, if you want them to be even contemplated by the working group again. According to page 56 of the report:

Based on this second round of assessment, the Working Group determined to publish seventeen (17) of the thirty-six (36) URS proposals submitted by Working Group individuals in the Initial
Report. The remaining proposals are not published because they either did not receive adequate support from the Working Group or were superseded by related proposals.

I wrote about how the ICANN working group chairs relitigated decided issues, which has resulted in most of my proposals being eliminated by the remaining captured and unrepresentative working group members. According to the report (starting from page 56), only Individual URS Proposals #1, 2, 3, 6, 11, 13, 15, 16, 22, 26, 27, 28, 29, 31, 33, 34, and 36 are published for comment. All the original individual proposals can be viewed here.

I originally submitted proposals #4, 5, 7, 8, 18, 19, 20, 23, 29, 30, 32, 33, 34 (which replaced #24) and 35 (which replaced #12).

This means that the co-chairs managed to eliminate for public comment, through their manipulation of procedures, all of my proposals save for the relatively minor #29, 33 and 34. In later blog posts, I’ll cover them in detail (I’ve blogged about some of them before), but these were all serious proposals that would bring much-needed balance to the URS and protect registrants’ rights to due process. Only minor proposals (like XML formats in #29, a technical proposal) were even published for comment.

While the co-chairs might claim that the proposals that were eliminated were “extreme” and thus unpopular, let’s take a look at just one of the other trademark-maximalists’ proposals (i.e. the “other side” compared to registrants, since TM owners are the complainants in disputes against registrants) that did get published, namely proposal #15 (see pp. 61-62), which proposes that anyone losing 2 or more separate URS disputes should have ALL of their domains (regardless of whether those other domains are even infringing any trademarks)  blacklisted, amongst other undefined “enhanced penalties” that would be created later by the trademark maximalists who’ve captured the RPM PDP working group. That proposal is obviously the masturbatory fantasy of a fringe group that seeks to disproportionately punish claimed trademark infringement, without any of the balance present in real national laws.

I warned domain name registrants about this months ago, even reaching out to Rick Schwartz, who blogged about it. However, the Internet Commerce Association (ICA) has let domain name registrants down. Not only did proposal #15 get published for comment, they did not prevent my counter-balancing proposals from being eliminated, and did nothing while the co-chairs relitigated decided issues  (nor did they speak out to protest my unfair banishment from the working group). The clock is ticking, and this is perhaps the first time many registrants are becoming aware of these important matters. Where is the ICA? Where are the registrars, who should be standing up for their clients? Who else is defending registrants’ rights, besides myself (in exile!)?

I understand that registrants have been focused lately on the dot-com and dot-org fiascos (and the global pandemic), but what’s happening in the RPM PDP Working Group will also have major consequences if left unchallenged. The time is now to speak out and challenge what’s going on in that captured working group. That working group has lost its way, and doesn’t seek balanced decisions that have a global consensus. Instead, they wish to ram through extremist proposals that would harm registrants’ rights to due process in balanced procedures.

As a preliminary matter, the comment period should be extended. There’s a global health crisis to consider. Furthermore, the format for submissions (use of a multipage comment form), which has been criticized in the past for its lack of user-friendliness, should be eliminated, and instead free-form comments via email should be allowed.

In future posts, I’ll provide my own thoughts on the report, and what’s missing from it, although a review of my past blog posts can provide a preview.