Renewal of Registry Agreement with Public Interest Registry Shows Weaknesses at the Governance Level

On June 30, 2019, the Internet Corporation for Assigned Names and Numbers (ICANN) and the Public Interest Registry (PIR), the registry in charge of administering the .ORG gTLD, renewed their registry agreement (icann.org, 30 June 2019). On this occasion, ICANN decided to abandon the pricing policy of capping the price of .ORG domain names. Historically, the annual price increase was subject to a 10% limit. This evolution is the result of a policy to harmonize contracts between ICANN and registries in a predictability perspective for the end user.

The possibility of abolishing the .ORG tariff ceiling had, however, provoked an outcry during the public consultation, which received more than 3,200 comments between March 18, 2019 and April 29, 2019 (icann.org, March 18, 2019), after bilateral negotiations between ICANN and the registries. According to Domainnamestat.com, there are more than 11.2 million .ORG domain names, representing approximately 3.23% of all domain names (data from July 8, 2019). For comparison, .COM and .NET, which are the extensions with the most domain names, have 151,364,046 (43.6%) and 15,585,129 (4,5%) respectively.

The authors of the public contributions included charitable and non-profit organizations, individuals and various groups and stakeholders including:

  • representatives of non-profit associations such as :

– Internet Commerce Association, which highlighted the risk of an unpredictable and arbitrary pricing policy (comments from the Internet Commerce Association);

– YMCA of the USA, C-SPAN, AARP, Conservation Fund, Oceana, National Trust for Historic Preservation and National Geographic Society, collectively, insisted on the financial impact of this measure:

This will accordingly introduce new budgetary uncertainty to the class of organizations that can least afford such uncertainty.  Every additional dollar earmarked for domain name registrations is a dollar that is not available to advance the public interest purpose of nonprofit registrants that use the .org name space.  While it is possible the Public Interest Registry may choose not to raise prices, despite the removal of the caps, the .org registry is too important to leave this decision to the registry’s discretion.” (comments from these organizations);

– National Council of Nonprofits (United States) which, in addition to stressing the essential nature of domain names for non-profit organizations, also insists on the impact that an unpredictable increase in the costs of registration and / or renewal could have on their budget:

“The ICANN proposal would subject nonprofits to unpredictable and unrestricted price hikes. Unlike for-profit businesses, nonprofits typically do not have revenue flexibility to absorb new and unexpected costs or to raise prices on consumers to overcome the hit to their bottom lines” (comments from the National Council of Nonprofits);

– Non-Commercial Stakeholder Group or NCSG  (ICANN Branch), which emphasizes the premature use of the Uniform Rapid System for the out-of-court settlement of domain name disputes, while ongoing discussions (notably within the framework of the GNSO’s Protective Mechanisms Policy Development Policy Working Group) could lead to its deletion. The NCSG also regrets the method of bringing stakeholders to the fait accompli, with negotiations between ICANN and the .ORG registry leading up to the public call for comment. Finally, in terms of tonnage, the NCSG proposed not a removal of the cap, but an increase of the price consisting of an appropriate amount, revisable at mid-contract (NCSG comment).(comments from the NCSG);

  • representatives of the owners of intellectual property rights, including:

– ICANN Business Constituency or BC, which regrets the lack of public pre-negotiation consultation between ICANN and the relevant registries, with commentators accomplished. On the other hand, the BC welcomes the fact that the out-of-court domain name dispute resolution mechanism is that of the Uniform Rapid System or URS (BC, Comment on Proposed Renewal of Registry Agreements for .INFO and .ORG, 29 Apr. 2019);

– the GNSO Intellectual Property Constituency or IPC (branch of the BC) strongly supports the adoption of the URS. But for the IPC, this is not satisfactory:

“The IPC encourages Registry Operators to voluntarily adopt industry best practices beyond the minimum rights protections required by ICANN, such as adding new restrictions against abusive registrations, additional suspension mechanisms, implementing blocking prior to registration, and creating new dispute procedures” (commentaire de l’IPC);

– as to the International Trademark Association, its representatives are in line with the decisions made by ICANN (comments de l’INTA).

This again demonstrates the complexity of governance within ICANN where conflicting interests are at stake. It also recalls stakeholder expectations of decision-making mechanisms that, under certain circumstances, place certain branches of ICANN in a state of helplessness and make it difficult to match the decision with the required legitimacy.