As could have been predicted, the veiled and not-so-veiled legal threats have now started to trickle in to ICANN, ahead of its landmark meeting in Colombia next week. Some organizations, aware that Cartagena may see the ICANN Board at last approve the final Applicant Guidebook for the new generic Top-Level Domain (gTLD) program, are bringing their whole arsenal of persuasion tactics to bear. These have so far included promises to resort to judicial or legislative remedies if ICANN does not act in certain ways. But whether these opponents of the gTLD program are bluffing or not, this is not the time for ICANN to reverse course for fear of litigation.
The International Olympic Committee, which wants the Guidebook to contain provisions specially protecting its trademarks, has reportedly already said it will hold ICANN legally responsible for any damages its brand suffers as a result of the program. And the US-based Financial Services Roundtable has also reportedly said that it intends to either lobby for legislation or resort to the courts, if financial services gTLDs (for example, .bank) are not given security protections it deems adequate. It's possible that still more special interests may state similar positions before the ICANN Board meets to discuss the AGB next Friday.
ICANN has of course long anticipated the potential for litigation, and has built that consideration into the program's funding model from the beginning. One of the reasons applicants will be forced to pay so much to apply for their gTLDs is that ICANN, as a California legal entity, needs a reserve to cover its corporate risks. The burden of paying the legal bill will be shouldered equally by all applicants, whether they are large, populist commercial ventures or niche linguistic projects of interest only in small geographic communities. Uncontroversial cultural gTLD registries from around the world will, in a sense, help to subsidize political and commercial dramas that may be played out in the notoriously expensive US court system. It's a price most applicants are willing to pay in order to have the new gTLD program launched according to ICANN's announced timetable.
It is of course not only the program's fiercest critics that have a defensible stake in the outcome of next week's vote. Some vocal new gTLD applicants have speculated about the potential for litigation of their own, in previous comment periods on earlier drafts of the Guidebook. Some companies have invested a lot of time and effort in preparing the ground for their applications and many millions of dollars have been raised on the assumption of the program launching in a timely fashion. Such applicants and their investors and supporters have exhibited enormous patience over the last few years, but it is not unreasonable to suspect that patience, in some cases, may have its limits.
However, at this point it is not ICANN's duty to weigh the relative risks of launching the program according to its promised timetable versus delaying it while the demands of every organization that declares itself to be in a litigious mood are taken on board. The Board's decision next Friday should not be based on which side of the debate — pro-AGB or anti-AGB — has the most lawyers and the deepest pockets. Such a result would be the very definition of "capture".
Rather, ICANN's duty is to use what time remains before the program's May 2011 launch to fine-tune the few remaining issues that are still in need of clarity, creating the best possible compromised Guidebook for all interested parties. The best way to start this process would be to give conditional approval to the proposed final AGB next week. This may in fact involve acquiescing to the specific requests placed before it by litigious special interests, but those requests should be granted because they are reasonable and in the best interests of the program and its participants and stakeholders, not because ICANN feels it has to cave at the first sign of a gTLD opponent lawyering up.
Let us not forget what the new gTLD process is about. It is about increasing competition in domain names and internationalizing the DNS in an unprecedented way, and doing so in a timely manner. One need only look to the huge success to date of some of the various IDN ccTLDs that ICANN has recently approved to realize that there is a huge global demand for new TLDs. This is ICANN's opportunity to meet that demand and firmly establish itself as a globally inclusive organization. This is a worthy goal, a goal that should not be abandoned for fear that ICANN could become yet another victim of a culture of litigation largely peculiar to its own home territory.
There may be risks, but the primary risk ICANN should be concerned about is the risk to the program itself. A lot of its credibility relies upon deploying a transparent, predictable application process that serves the broad communities that have invested so much time and resources in creating it, rather than a vocal minority that would see it derailed at any cost.
By Johnny Du, VP, StableTone Ltd
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