The US Senate Committee on Commerce, Science and Transportation Hearing on ICANN’s Expansion of Top Level Domain Names on December 8, 2001 was all about strategy. The strategy was simple: while the world has its attention turned to the debate on the copyright legislative proposals of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, let’s have another ICANN hearing and try to re-open trademark protection for new gTLDs. And this time, let’s have a different crowd submitting the testimonies: Mr. Dan Jaffe of the Association of National Advertisers (ANA); Ms. Angela Williams, of the Young Men’s Christian Association of the United States of America (YMCA); and, Ms. Esther Dyson, first ICANN’s chairwoman.
What was heard at the Hearing was not something inspiringly new: brands will suffer and consumers will be confused. A lot was said about defensive registrations, how the Internet is a scary place for trademark and brand owners, how there is a possibility that child porn will proliferate, how cybersquatters can ‘blow us up’, how law enforcement will not be able to do their jobs and how US senators may not be able to register their names. Innovation was questioned in a much unconvincing way and much was argued about the presumed lack of consensus for the new gTLD program.
The new twist in this Hearing was the participation of non-profits, through the YMCA, which was used by the trademark community as the new vehicle to air trademark concerns and as a further attempt to demonstrate that if these organizations’ brands are suffering, then this should be enough to put the new gTLD program on hold. This might have impressed the Senators at the Hearing but it, ultimately, is a really weak argument. Non-profits are not trademark maximalists, especially in the way trademark interests are represented at the ICANN level. Non-profits are entities that protect their marks (not brands), but following the underpinning principles of goodwill, consumer protection, competition, etc. associated with the mark and the services they provide. So, I am not sure whether the YMCA’s testimony represents an understanding for NGOs and non-profits outside the US; in fact I am pretty sure it doesn’t represent the views of many NGOs and non-profits in Europe and, especially, in the developing world.
On the other hand, ANA’s message was simple: the new program is a threat to companies and consumers and it should be stopped. ANA has been particularly involved in this process after the Special Trademark Issues (STI) team recommendations were released, which were based on a consensus that the trademark community did not agree with. This consensus was highly challenged by ANA, on the basis that, since it didn’t reflect the views of the trademark industry and some non-profits, it was illegitimate. No matter what one thinks about ICANN’s consensus policies, these have been in place for many years, a lot of work to more accurately define it has been done and continues at the level of the GNSO, they are part of ICANN’s ecosystem of procedures and, in many cases, have been instrumental in the trademark community winning many policy battles. So, the idea that this consensus is not working is mistaken: it just didn’t work out this time for the trademark crowd.
I was quite puzzled with Esther Dyson’s testimony, especially the part where she argued that “the process of consulting with the public hasn’t really worked” and that she was representing Internet users, who will be confused through this expansion. There are two mistakes Ms. Dyson made: through NCUC for example, users have participated in the process and, for instance, concerns of free speech and freedom of expression (that no one at the meeting even dared to mention) have been addressed to the fullest extent possible within a multistakeholder model. (The difference is that, contrary to other groups, these groups have accepted the results of such multistakeholder recommendations.) And, as for the argument that users will be confused through this process is really not working any more. Users have become more savvy than any other time; by now the majority knows how to use the Internet, what to suspect and what to avoid. The idea that we need stronger intellectual property protection for the users reflects a time when our parents and grandparents were not logging on to Facebook and they thought computers were aliens.
So, what one should take from this Hearing is that the people who actually have been involved in this process, Ms. Fiona Alexander from INTA and Mr. Kurt Pritz from ICANN, both celebrated and gave their vote of confidence to multistakeholder participation. They both correctly insisted on the fact that the new gTLD program was a consensus policy and that its language is an attempt to represent the multistakeholder environment of ICANN. They addressed how all stakeholders participated in the various policy groups and that, although work needs to be done, a lot has happened towards ensuring that ICANN’s work on the new gTLD program reflects its multistakeholder community in a transparent and accountable way. This is a very crucial point and Hearings like this one demonstrate how foreign multistakeholderism is for many US politicians. So, here’s a suggestion: if we wish to have Hearings like this one, let’s do so, at least with an understanding of how ICANN works, where we were and where we are now. Because it turns out that Hearings like the one of December 8, are not constructive at all; they are highly disruptive, in a time when ICANN should be focusing on finalizing and cross-checking everything in order to make sure that the January 2012 launch goes as smoothly as possible.