ICANN San Juan 2007 The afternoon brought meatier fare - something a correspondent can sink his teeth into, so to speak.
The RegisterFly debacle has forced ICANN into a bout of soul-searching, and the potential reform of the Registrar Accreditation Agreement (RAA) provoked wide-ranging debate about ICANN's purpose and the rights of registrants to their domains. It also raised the specter of how to respond to the failure of an actual registry, rather than a registrar. Susan Crawford, ICANN board member and moderator of the discussion, broached the question of whether an entire top level domain (TLD) could be allowed to fail, or rather should be maintained somehow in perpetuity.
The principal subject, however, revolved around how far to go to protect the rights of registrants in the event of another RegisterFly - the name no one could help but mention, try as they might not to.
Domains as property?
Most registrants view their domain somewhat like a place - it is an "address" of sorts. As more and more activity has migrated online, users virtualize more and more of what is already familiar, and the domain becomes increasingly more like a real world address.
Of course, all it really is is a memorable shorthand for an numeric IP address that is treated differently very differently than real property by the ICANN RAA, but most registrants feel they own their domain in the same way that they own a house or a car.
Is this fair? And just as importantly, is it a correct reflection of intellectual property law? Should a domain name be treated as a lesser form of intellectual property for no other reason than ICANN's convenience?
Some in the domain industry want domain holders to have complete property rights, rather than the more narrowly defined "license" provided for in the current agreement. Others prefer stronger enforcement of the current agreement. From the perspective of trademark law, registrants who are actively using their domains in a business context already have more rights than the current RAA acknowledges. ICANN can talk all it wants about a renewable license granted to the registrant in the name, but at least in America, to establish a trademark requires only use.
A strong case can be made that someone who runs a business in which the "address" is also the brand, rights holders deserve more protection, not less. Of course, if ICANN starts to enforce the data escrow clause in the RAA, situations like RegisterFly, in which legitimate domain holders lost domains through either corruption or incompetence by the registrar, wronged domain holders should be able at least to recover their domains.
Data escrow in some form is on the way, but debate ensued around just what information needs to be escrowed, and whether any privacy concerns will need to be addressed. Data escrow is one of the more important issues to be resolved, because it allows the wrong to be righted, and because an escrow clause is already in the RAA - it just hasn't been enforced.
One of the more controversial measures concerned just how much information that ICANN collects on registrars should be in the public domain. Everyone agrees that registrars cannot be immune from business failure, but a free market also requires a free flow of information to consumers, and currently registrants have really no way to know how or stable reputable a registrar is.
ICANN already audits the registrars - it's time for that information to be public. It's no different than the health department posting information on the cleanliness standards in a restaurant. If that requires a revision of the RAA, so be it. Ultimately, it's in everyone's best interest.
ICANN is putting more emphasis on enforcement of the RAA, which is long overdue - especially considering that some ICANN-approved registrars apparently don't maintain websites or take ICANN's calls.
One topic of discussion covered some kind of graduated enforcement scheme, to allow ICANN to nip problems in the bud before they become fully-fledged RegisterFly-style disasters. Under the current RAA, ICANN's only remedy is de-accreditation, which is the nuclear option. The end result of that system was ICANN waiting until the situation was so dire that it had no other option - ie, RegisterFly.
It's a name we're all tired of hearing.
Burke Hansen, attorney at large, heads a San Francisco law office