|Doesn't look much like a calendar to me|
Monday, 19 November 2012
The rumours that the world will end in 2012 might be far-fetched but for brand owners the introduction of new gtlds will change the online world as we currently know it. Those non-believers are likely concerned with the mechanisms for the protection of their trade marks when ICANN finally introduces the new regime (see IPKat posts here and here).
Fortunately, we are now a step closer to knowing precisely what are the ins and outs following the recent ICANN meeting in Toronto. In attendance was Jim Bikoff of Washington, DC, firm Silverberg, Goldman and Bikoff, who has sent this report (with this Kat's comments in red):
Many of the working sessions focused on Rights Protection Mechanisms, particularly how to complete details of the Trademark Clearinghouse ( the "Clearinghouse") and the Uniform Rapid Suspension System ("URS") before the new gTLDs are delegated in 2013. There are a number of implementation details that are still under discussion. The major points are set forth below.
The Trademark Clearinghouse will serve as a central repository of rights information. Recordal in the Clearinghouse will qualify the rights owner to register domain names that correspond to their marks in the Sunrise Registration Period. Recordal in the Clearinghouse will also qualify the marks for the Trademark Claims Service, which will notify the owner if someone has registered an exact match of the mark [but not, presumably a similar mark].
The Clearinghouse has three core functions:
1. Performing verification of the trademark data;
2. Maintaining the database of verified data;
3. Interacting with Registries and Registrars to support the Sunrise and Claims services.
To date, ICANN has not yet released the final implementation details of these core functions, even though a final model was due before the meeting in Toronto. Instead, ICANN has only released implementation suggestions for two narrow functions: proof of use and matching rules for trademarks with special characters. Members of the community, particularly the Intellectual Property Constituency ("IPC") have demanded that ICANN release the implementation model as soon as possible, to allow enough time for meaningful community input [and, presumably, to allow brand owners enough time to save their pocket money to pay for registration in the Clearinghouse].
The timeline to work out the details of how the Clearinghouse will function is tight. Clearinghouse providers Deloitte and IBM are testing the Clearinghouse during the fourth quarter of 2012. ICANN also plans to have the system live for interface with trademark owners (for registration and verification) in the first quarter of 2013. The community is skeptical that this timeframe is realistic, and ICANN, Deloitte and IBM are now under the gun.
The Registry and Registrar Stakeholder Groups have also put pressure on ICANN to develop a Clearinghouse interface that is centralized, protects data from bad actors, and is easy to use and implement. ICANN staff has proposed a model which is decentralized (i.e.: each Registry would maintain the data itself), primarily because they believe that centralizing the Clearinghouse would potentially create a "single point of failure" issue within the registration process. For example, if the Clearinghouse experienced a technical glitch, no one would be able to complete registration because the Clearinghouse would not be able to generate the proper information to Registrars to complete the mandatory claims notification query. Proponents of the centralized interface system (which has majority community support at this point) claim that any such failure would be very rare, and claim that a centralized system would, in fact, keep trademark data safer, which is a major concern for the IPC [surely modern information technology is sophisticated enough to cope with this. Processing power doubles every 18 months and WIPO and OHIM have coped for years].
The development of the Registry interface is due to be completed by the fourth quarter of 2012, and ready for testing during the first and second quarters of 2013. Again, given the rift between the community, the Registries/Registrars and ICANN staff/TMCH providers, this timeline is ambitious.
The biggest issue for rights owners in relation to the Clearinghouse is the inability of the current model to address the concerns that the new gTLD program presents. The IPC, along with the Business Constituency ("BC") and with the support of the Internet Service Provider Constituency ("ISPC") have developed key suggestions for improving the Rights Protection Mechanisms as a whole, including the Clearinghouse. These suggestions are as follows:
1. Extend Sunrise Launch Period from 30 to 60 days with a standardized and centralized interface mechanism;
2. Extend the Clearinghouse and Claims Notices for an indefinite period (from 60 days) and ensure the process is easy to use, secure, and stable;
3. Complete the URS as a low cost alternative and improve its usefulness - if necessary, ICANN could underwrite for an initial period;
4. Implement a mechanism for trademark owners to prevent second-level registration of their marks (exact matches, plus character strings previously determined to have been abusively registered or used) across all registries, upon payment of a reasonable fee, with appropriate safeguards for registrants with a legitimate right or interest;
5. Validate contact information for registrants in WHOIS;
6. All registrars active in new gTLD registrations must adhere to amended RAA for all gTLD registrations they sponsor;
7. Enforce compliance of all registry commitments for Standard applications;
8. Expand the Clearinghouse Claims Service to cover at least strings previously found to have been abusively registered [or used].
ICANN's new CEO, Mr. Fadi Chehadé, has made completion of the Clearinghouse a strategic priority for ICANN. Rights holders are extremely concerned about the perceived shortcomings of the Clearinghouse and the relatively small window of time that the community has to resolve these issues.
Uniform Rapid Suspension System
The development of the URS hit a snag earlier this year when it became clear that no provider could develop the system at the cost target of $300-$500. The URS was conceptualized as a faster and cheaper version of the UDRP, designed for cases of clear-cut infringement. But as the community continued to participate in the development of the URS, adding safeguards for potentially legitimate registrants, appeals mechanisms, translation services, panel appointment, etc., the costs became equal to, if not greater than the UDRP. The meetings in Toronto focused on identifying the barriers to providing the URS at a low cost, without sacrificing the key elements required by those who support intellectual property rights and those who are concerned about Registrant rights.
Before the meeting in Toronto, ICANN put out a new Request for Information to the community in order to solicit any suggestions that would make the URS cheaper. At the session on the URS, presentations were made by WIPO, the National Arbitration Forum, and members of the IPC. All three panelists identified some of the major cost drivers of the URS as follows:
* Expert panel appointment in all cases;
* De novo expert review for up to 30 days;
* Procedural complexity (significantly more moving parts);
* Multiple enforcement layers;
* Translation services.
[maybe adopting a 'loser pays' principle with fixed costs might help to deter 'opportunistic registrants'.]
Suggestions for cutting costs ranged from ICANN subsidies (which has been routinely dismissed as ultimately unsustainable), default decisions without panel appointment, using the URS only for default decisions and proceeding to a UDRP in contested cases, using technology to streamline the processes and scaling the safeguards/appeal mechanisms back. In addition, a potential new provider was identified who advised the attendees that he could provide the desired system within the cost target range. ICANN will pursue discussions with this potential new provider [it seems paramount to have a simpler, cheaper, quasi-automated mechanism for blatant infringements with an appeal structure rather than an 'all singing and dancing' URS which functions the same as UDRP].
The meeting on the URS was more of a brainstorming session than an actual results - driven discussion, because the Request for Information is still pending. We expect the URS discussion is a lower priority to ICANN than the Clearinghouse, as the latter needs to be in place well before the delegation of new gTLDs, while the URS only has to be in place after the gTLDs are launched.
Registrar Accreditation Agreement and WHOIS Data
The RAA is a contract that governs the relationship between ICANN and its accredited Registrars. In order to participate in registering domain names in the new gTLD program, Registrars must sign the new RAA, which is in its final stage of negotiation. Parties to the negotiation include various international and national law enforcement agencies, the Government Advisory Committee ("GAC"), data privacy watchdog groups and Registrar representatives. Mr. Chehadé has said that RAA should be completed by the end of this year.
The primary point of disagreement in negotiations involves verification and accuracy of WHOIS data, which is very important to rights holders. Many cybersquatters hide behind inaccurate WHOIS data and privacy/proxy registration services to avoid detection and prosecution.
Law enforcement officials want WHOIS data to be completely verified before the domain name resolves to an active website, retained for two years after the life of the registration, and re-verified annually. They are willing to compromise that the website can resolve if Registrars commit to verifying the information (phone number AND email address) within a short time frame, with the threat of suspending the domain name if verification is incomplete. Law enforcement officials also advocate for an accreditation system for privacy and proxy services, which would allow registrants to hide their identity ONLY for to-be-defined legitimate purposes, with the caveat that law enforcement officials can have access to the registrant information upon a showing of good cause (such as illegal activity or cybersquatting).
Some ICANN community groups, such as the Non-Commercial Stakeholder Group ("NCSG") oppose such verification and accreditation, citing the right of registrants to remain anonymous and keep their data private [is this proportionate to the rights of brand owners to not have their property misappropriated?]. ICANN's Registrar Stakeholder Group believes that some requirements of the new RAA in relation to WHOIS violate the law in areas where data privacy protection is particularly [overly?] strict, such as the European Union.
Earlier this month, an EU data protection watchdog group called the Article 29 Working Party, which is an advisory group to the European Commission, released a letter stating that some law enforcement demands, notably the retention requirement, and the annual re-verification, may place Registrars in violation of EU data privacy and protection laws. ICANN responded to the concerns by suggesting an "opt-out" procedure for those Registrars that are placed in the position of violating local laws or violating the RAA.
Intellectual Property owners and Registrars located outside of Europe were not receptive to the idea that Registrars within Europe would be given a free pass on these important issues. Indeed, the Intellectual Property Constituency ("IPC") expressed concern that an "opt-out" mechanism would drive Registrars en masse to Europe, so that they can take advantage of the exception [how cynical].
The European Commission representative to the GAC distanced the EU from the Article 29 letter stating that "[The Article 29 Working Group is] there to give advice and they, and we, are very clear that they are independent of the European Union. This is not an EU position." While the NCSG quickly condemned this statement, saying that the GAC representatives are purposefully ignoring data privacy officials in favor of law enforcement demands that are aligned with intellectual property concerns.
As with the Trademark Clearinghouse, completion of the RAA is a strategic priority for ICANN staff and leadership. Rights owners can expect progress this year.
Sunday, 6 February 2011
This week marks the 100th AmeriKat post (although there have been several non-AmeriKat posts from this feline). There would be no more apt a day to publish her 100th Letter than on SUPER BOWL SUNDAY! FOOTBALL!!!!!!!! Readers will have to excuse the AmeriKat for her sudden burst of feline frenzy, but she does love a good American football game. This year it is the Pittsburgh Steelers and Green Bay Packers who are at loggerheads -- the AmeriKat is rooting for the Steelers, although this may change following half-time. For those who have been engrossed by the rugby this weekend on this side of the Atlantic, take a moment and enjoy the beauty that is American football, not just the sport but its impact on IP. Last year the Supreme Court ruled on an issue regarding NFL team trade marks and competition law issues in the American Needle case (AmeriKat reports here). Ahh ... the NFL, bringing together two American pastimes - Sunday night football and litigation. You can't really say that about rugby, can you?
The AmeriKat will be gone next weekend as she will be finishing off (or writing) a book chapter on the Viacom v YouTube litigation, but will be back the following week with news of Microsoft's Supreme Court filing in the i4i case.
Google's "Bing Sting" takes a punt at Microsoft, but is it really copying?
Another epic battle between two massive teams has also been launched when last week Google accused Microsoft and their Bing search engine of copying their search results. Google's engineers had created 100 "synthetic" search queries such as "hiybbprqag" to which predetermined real search results that had nothing to do with the original query would then appear. After a few weeks of implementing this 'sting', these same search results were also displayed on Bing. Google's Amit Singhai published a detailed blog post about the ins and outs of Google's sting and said that their experiment confirmed their suspicion that something strange was happening with Bing. Google suggests that individuals who are using some combination of Internet Explorer 8 - which can send data to Microsoft via its Suggested Sites feature and/or the Bing Toolbar which can do the same, are inadvertently sending data to Bing about what keywords they search for on Google and what results Google in turn displays. A sort of "search engine espionage" if you will. Singhai stated that
"At Google we strongly believe in innovation and are proud of our search quality. We’ve invested thousands of person-years into developing our search algorithms because we want our users to get the right answer every time they search, and that’s not easy. We look forward to competing with genuinely new search algorithms out there—algorithms built on core innovation, and not on recycled search results from a competitor. So to all the users out there looking for the most authentic, relevant search results, we encourage you to come directly to Google. And to those who have asked what we want out of all this, the answer is simple: we'd like for this practice to stop."
Microsoft denied copying Google and has instead accused them of conducting "spy-novelesque stunts". Vice President of Bing, Harry Shum, stated that
"We do not copy Google's search results. We use multiple signals and approaches in ranking search results. Opt-in programs like the toolbar help us with click stream data, one of many input signals we and other search engines use to help rank sites."Click stream data basically tracks or maps how users are searching and using the web. So if you use the Bing toolbar or Internet Explorer to search something on Google then it can see the URL for that query and the resulting search results. It can also see when you search something on Amazon, or when you check out the latest YouTube clip or browse shoes on Nieman Marcus (picture, left - the AmeriKat asleep in one such shoe). There is no specific Google signal, just a general search signal for the whole gambit of websites. Some of these search signals are very weak (tails) and some are very strong (heads). Head signals are generic terms such as "movies" or "shoes" - terms that millions of people search every day and will thus be 'strong'. Tail searches are your more obscure searches, such as the nonsensical queries used in the sting operation. Because these tail searches are searched less frequently a search stream will thus have less data to go on and thus the results may appear to be that Bing is "copying"' Google's results, but really there is less data to go on and the data that is out there is from only a few sources including Google (if the AmeriKat is understanding this correctly!). According to Danny Sullivan, both Google and Bing agree that this replication of search results can occur in instances of weak signals.
According to Sullivan, Google's test proves that the surfstream is a weak signal because even where Google was providing the sole signal or sole data for the nonsensical terms, Bing used this signal (data) only about 9% of the time. So are Google's claims of being copied legitimate? Shum says that Bing is not copying Google, they are only watching how users search and use the web. Much, says the AmeriKat, like what Google does with Google Chrome and their own search and browse settings. Although she knows this is not an equitable issue, the maxim "one who comes into equity must come with clean hands" is chiming around the AmeriKat's head right now ...
So is this just a PR battle being waged by Google? Is there any copying taking place at law? Further, what protection does Google have in the search results? If algorithms are being copied (of which there does not appear to any evidence of direct taking), perhaps copyright infringement is taking place or, if there is some patent at work, is there patent infringement? In so far as results are displayed, is there another possible copyright claim in the layout or table of search results? The AmeriKat has to admit that the inner workings of search engines are a mystery to her, so identifying the intellectual property rights is also a stab in the dark. What do readers think?
If anything, the AmeriKat is sure that Viacom and their amici (which include Microsoft) in Viacom v YouTube are loving hearing Google whine about being copied and saying choice things such as
“I’ve got no problem with a competitor developing an innovative algorithm. But copying is not innovation, in my book."
The Amerikat would like to thank Dave Sant of the BBC for spurring her interest in this story.
US Officials score a touchdown in fight against online counterfeits
Last week, with the assistance of Immigration and Customs Enforcement (ICE), the US Attorney's Office of the Southern District of New York seized 10 websites that allegedly streamed live sporting and and pay-per-view events online - mere days before the big SUPER BOWL GAME! The Super Bowl game attracts about 100 million viewers a year and in recent years many viewers have been tuning in online, either legally or illegally. The websites that have apparently assisted in the illegal viewing of sports games that were subject to the seizure under Title 18 of the United States Code included channelsurfing.nehq-streams.com, firstrow.net, ilemi.com and rojadirecta.org. What makes the seizure of rojadirecta.org particularly controversial is because this Spanish site was held to be operating legally by a Spanish court last May. (picture, top left - the notice now displaying on the seized websites)
These websites were alleged to illegally provide links to sites that would show or stream professional sports organizations' content, including games from the NFL and the NBA (National Basketball Association). For anyone who has ever watched an NFL or Premier League game, you will know that the sports organizations will usually own the copyright in film and sound recording of the game/match, the trade marks of some of the teams' logos and/or uniform, the music, layout, etc. Thus, unauthorized streaming or use of this content is a violation of their copyright. With more and more fans turning to their laptops to watch their favorite game, sports organizations are now facing the age-old battle with sites that illegally provide this content.
But the efficacy of such seizures is under question and anyone who battles counterfeit websites online know what that is: as soon as one domain goes away, another one will soon swoop up in its place. However, ICE Director John Morton remains undeterred
“The illegal streaming of professional sporting events over the Internet deals a financial body blow to the leagues and broadcasters, who are forced to pass their losses off to fans by raising prices for tickets and pay-per-view events. With the Super Bowl just days away, the seizures of these infringing websites reaffirm our commitment to working with our law enforcement partners to protect copyrighted material and put the people who steal it out of business.”
“This swift action by our Homeland Security Investigations New York special agents and analysts sends a clear message to website operators who mistakenly believe it’s worth the risk to take copyrighted programming and portray it as their own. We will continue to aggressively investigate this type of crime with our law enforcement partners."
But how effective is this? Although it may not completely get rid of these types of sites, it does shove the domains back down in the Alexa ratings which means they are more difficult to find. The more difficult a site is to find, fewer users access it, which in turn results in any advertising revenue on the site drying up. It may not be perfect, but it has the desired effect of essentially making the commercial viability of counterfeit websites less attractive to their operators.
However, not everyone is happy about the seizures. A critic of these types of seizures and of an anti-piracy legislation that will probably be reintroduced this term,Senator Ron Wyden (D-Oregon, left) wrote to Attorney General Eric Holder and Morton expressing his concern. He called for greater transparency about the criteria on why these domain seizures were being allowed to proceed. He noted particular concern in that the 10 websites that were seized last week providing links to infringing content, not providing infringing content themselves, and an apparent lack of due process. Senator Wyden stated that
"These seizures represent a major shift in the way the U.S. government combats copyright infringement in the digital environment...I grow concerned when the methods used may not be effective and could stifle constitutionally protected speech, job-creating innovation and give license to foreign regimes to censor the internet."
Steven Tepp of the US Chamber of Commerce (a private lobbying institution) previously stated in an e-mail to the AmeriKat that the anti-priacy legislation Combating Online Infringement and Counterfeits Act (COICA), that has Senator Wyden concerned does provide for due process in that the legislation does require the Department of Justice to "simultaneously give notice to the accused domain so that they have an opportunity to come to court to defend themselves" and allows a party served with an order the opportunity to modify or vacate the order. To read the text of this bill click here.
At the same time the website seizures were taking place Deputy Director of the ICE Kumar Kibble announced another successful sting, which was cleverly dubbed in time for Super Bowl Sunday as "Operation Interception". The Operation saw $3.56 million in fake NFL merchandise seized. The Operation will continue throughout the weekend.
Now that the Digital Economy Bill's website blocking clause is being reviewed by the UK Government, what do IPKat' readers think about introducing similar enforcement procedures in the UK as those undertaken by the US ICE?
Many thanks to Oliver Weingarten of the Premier League for alerting the IPKat to the ICE seizure-story.