In my prior blog post, I wrote about the public comment period for the Phase 1 Initial Report of the Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process. Any comments that are submitted by the public will be analyzed by the working group members. I believe that working group has been captured, and here are some numbers to back up that belief.
Using the working group’s attendance log (up until today), I created a list of all members who had participated in at least 25 of the 114 meetings, who could be described as at least somewhat “active” or “involved” compared to the rest. There are 260 “members” and “observers” according to the full list here, which also links to their statements of interest, but only 56 of those met the criteria of having attended 25 meetings (most of which are the weekly phone calls, not physical meetings).
Of those 56, I would further filter them into 3 groups. Group A would be those who I perceive (subjectively) as either seeking greater brand protection rights, greater rights for trademark holders for enforcement, or generally on the side of trademark owners (who are complainants in domain name disputes) and/or against registrants. Group B would be those who I perceive (subjectively) as being more in favour of greater due process for domain name registrants, and opposing the agenda of the trademark maximialists of the Intellectual Property constituency. Group C would be those who I perceive (subjectively) as having mixed or uncertain goals with regards to the balance of TM-owner vs. domain registrants’ rights.
Let’s see the numbers in each group. [The format below in Name, # of meetings attended, and description]
Group A – expansion of TM rights in the DNS, or otherwise anti-registrant
- Jeff Neuman, 50 meetings (Com Laude / Valideus, brand-oriented registrar, pro brand protection)
- Brian Cimbolic, 40 meetings [but resigned Sept 2019] ( PIR, who’ve shown via the dot-org debacle they’re anti-registrant)
- David Maher, 48 meetings (PIR, unfortunately his employer is anti-registrant as seen via the dot-org fiasco)
- David McAuley, 86 meetings (Verisign is anti-registrant)
- Elizabeth Bacon, 33 meetings (PIR, again dot-org fiasco shows anti-registrant inclinations)
- Jon Nevett, 41 meetings (PIR, again the dot-org fiasco revealed all)
- Kristine Dorrain, 67 meetings [but resigned April 2020] (Amazon, focused on brand protection)
- Lilian Fosteris, 53 meetings (Fairwinds, focused on brand protection)
- Phil Corwin, 102 meetings (Verisign is anti-registrant)
- Beth Allegreti, 30 meetings (FOX, focused on brand protection)
- Cyntia King, 65 meetings (Modern IP, focused on brand protection)
- Denise Michel, 30 meetings [but resigned April 2018] (FaceBook brand protection)
- J. Scott Evans, 47 meetings [but resigned March 2018] (Adobe, brand protection)
- Marie Pattullo, 73 meetings (AIM, brand protection)
- Renee Reuter, 27 meetings (Enterprise, IP lawyer, brand protection)
- Bradley Silver, 26 meetings [resigned Jan 2018] (Time Warner lawyer, brand protection focus)
- Brian Winterfeldt, 43 meetings (IP lawyer, brand protection)
- Claudio DiGangi, 49 meetings (IP lawyer, brand protection)
- Greg Shatan, 94 meetings (IP lawyer, brand protection)
- Griffin Barnett, 89 meetings (IP lawyer @ Winterfeldt’s law firm, brand protection)
- John McElwaine, 92 meetings (IP lawyer, brand protection)
- Lori Schulman, 58 meetings (INTA, brand protection)
- Michael Graham, 61 meetings (Expedia lawyer, brand protection)
- Paul McGrady, 45 meetings (IP lawyer, brand protection)
- Petter Rindforth, 71 meetings (IP lawyer, brand protection)
- Phillip Marano, 59 meetings (IP lawyer @Winterfeld’s law firm, brand protection)
- Scott Austin, 54 meetings (IP lawyer, brand protection)
- Susan Payne, 82 meetings (another Com Laude / Valideus brand oriented registrar, brand protection)
- Brian Beckham, 79 meetings (WIPO, used to work at Com Laude / Valideus with .brand applications, brand protection)
- Colin O’Brien, 32 meetings (IP lawyer, brand protection)
- Elizabeth Lai Featherman, 40 meetings [resigned Aug 2018] (IP lawyer, brand protection)
- Gary Saposnik, 71 meetings (IP lawyer, brand protection)
- Georges Nahitchevansky, 75 meetings (IP lawyer, brand protection)
- Ivett Paulovics, 33 meetings (MFSD URS domain name disputes administrator, so clearly pro URS)
- Justine Chew, 59 meetings (IP lawyer, brand protection)
- Renee Fossen, 69 meetings (NAF, pro brand protection)
- Steven Levy, 87 meetings (IP lawyer, UDRP panelist, brand protection)
- Thomas Brackey, 25 meetings (IP lawyer, brand protection)
Group B – protection of due process rights in the DNS, or otherwise pro-registrant
- Roger Carney, 83 meetings (GoDaddy registrar, owns NameFind portfolio, looking out for their clients who are mostly registrants)
- Sara Bockey, 35 meetings [but resigned March 2019, so no longer active!], (GoDaddy registrar)
- Kathy Kleiman, 95 meetings (non-commercial focus)
- Michael Karanicolas, 41 meetings (academic / non-commercial focus)
- Jay Chapman, 87 meetings (Digimedia, domain registrant focus)
- Ryan Pearce, 31 meetings (Rook Media, domain registrant / monetization)
- George Kirikos (me!), 87 meetings [but was unjustly banished in April 2019] (domain owner, registrant focus)
- Paul Tattersfield, 78 meetings (domain registrant)
- Rebecca Tushnet, 100 meetings (Harvard professor, academic interest, observes due process, etc.)
- Zak Muscovitch, 49 meetings (Internet Commerce Association, pro-registrant)
Group C – mixed / uncertain
- Jason Schaeffer, 35 meetings (dot-tube registry, Esqwire law firm, but recent blog postings suggest seeking to do more business with complainants)
- Maxim Alzoba, 94 meetings (Russian registry operator)
- Martin Silva Valent, 61 meetings (non-commercial but mixed, appears to be IP lawyer)
- Vinzenz Heussler, 26 meetings (legal academic at Austrian university)
- Gerald Levine, 85 meetings (IP lawyer and author, has represented registrants in the past)
- Kurt Pritz, 33 meetings (management consultant to contracted parties, former ICANN staff)
- Monica Mitchell, 51 meetings (owner of 1200 domain names, but also TM owner who wants to “regulate the industry” according to her statement of interest)
- Vaibhav Aggarwal, 28 meetings (management consultant in India)
These numbers show the stark reality that the group has been captured and is incapable of coming up with a balanced outcome. Of the 56 members who’ve attended at least 25 meetings, 38 of them (by my count) or nearly 68% were in Group A, nearly 4 times the number in Group B, and there aren’t enough in Group C to bring about any semblance of balance.
Of course, a few members in each group have been noted as no longer being active (having left the group or been banned like myself!). If anything, this doesn’t change the ratio above, it’s likely even worse (because I was very active in representing the views of registrants, to help counterbalance the overwhelming domination by those in Group A).
Also, while some activity does take place on the mailing list, the meetings themselves are where the “action” is, and if you actually review the mailing list archives, they are pretty dead (especially since I’ve been removed; i.e. TM lawyers have nobody on the other side engaged to debate issues with, for the most part, and so there’s nothing to discuss!). And before that, those in Group A would have still dominated any metrics on the mailing list.
To mask this capture, the co-chairs have resorted to violating the transparency requirements of ICANN, and have used an anonymous survey, violating the rules. An anonymous survey whose results are dominated by those in Group A show why most of the URS proposals I submitted (which would bring balance to the procedure) were blocked from appearing in the initial report seeking public comment, whereas extremist proposals like #15 easily made the grade.
Before I was banished from the working group, I explicitly called attention to the issue of capture. In the Section 3.7 appeal that I filed, I wrote:
The WGG talk about ensuring “representational balance” (section 2.2.1) and making “special outreach effort to those groups not represented.” [page 5 of PDF]
Individual WG member proposals are put at a severe disadvantage relative to sub team proposals under the current procedures put forth by the co-chairs and staff, one that effectively gives the IPC a de facto “veto” over proposals they don’t like, due to their over-representation in both the sub teams and in the main working group. [page 6]
This is intertwined with the issue of capture. Creating an effective veto for any one stakeholder group,which blocks proposals they don’t like, is consistent with capture, and adopted processes should be discouraging capture, not enabling it. [page 6]
Of course, my banishment has made the imbalance even worse.
ICANN staff are a big part of the problem, having no regard for registrant rights, as seen in the dot-com and dot-org fiascos. This past Monday, I wrote to Policy Staff, seeking an extension so that the public would have sufficient time to submit comments, particularly during this pandemic (ICANN staff routinely extends their own deadlines to do their paid work, as pointed out before). Here’s what they told me yesterday (2 days later, after I sent a followup email):
We have noted your extension request, but it would be a decision for the WG to make. Should the WG decides to extend the public comment period, the public comment page will be updated and a notification will go out.
However, as I immediately pointed out to them, there’s been no attention even brought to the working group (WG) about the issue of an extension to the public comment period. Absolutely nothing has been sent to their mailing list (the archive for April 2020 doesn’t exist at the time of this blog post, because there have been no posts yet in April 2020!)
This is consistent with the sham that ICANN has become at every level. I can only do so much to raise awareness of these issues. I hope that those reading this and that have the power to do something about it will act.