Straight from Singapore #3 (Jet Lag Edition) - Monday: ICANN Begins, For Those Who Think ICANN Begins on Monday

(Between jet lag and the pace of ICANN-related events, it’s taken a while to summarize the events at ICANN 49 in Singapore…)

Monday, March 23, began with the Opening Ceremony, even though the work of ICANN started on Saturday for many attendees. This ICANN meeting is freighted with history – Singapore was the site of ICANN 1, and also the site of ICANN 41 in 2011, where the New gTLD Program was officially approved. And now it has become the official kick-off for the IANA transition, the biggest change in the structure of Internet governance in many a year.

Steve Crocker, Chairman of the ICANN Board – himself freighted with history – kicked off the Opening Ceremony, then ceded the floor to Fadi Chehade, President and CEO of ICANN. Not surprisingly, much of the Opening, after the Ceremony, was devoted to Internet Governance – the IANA transition and the upcoming NETmundial meeting.

Immediately after the Opening, the room was turned over to a meeting that wasn’t even on the schedule two weeks ago – "IANA Accountability Transition." After touching on other developments at ICANN, Fadi walked through a series of slides, showed ICANN’s vision of how the transition process should go – and subtly pushed a plan where oversight of the IANA function is transferred to a global "multistakeholder mechanism" (not a separate entity), while the IANA function remains ensconced within ICANN, functionally separate and insulated from the policy business of ICANN. While this may be the wish list for ICANN management, others definitely disagreed on both points. An active discussion followed. The community made it clear, in comments from the floor, that ICANN needed to respect the bottom-up, consensus-driven multistakeholder process in facilitating the discussion and process of development.

Continuing the theme, I next went to the public meeting of the Cross-Community Working Group on Internet Governance (CCWG-IG). The CCWG-IG is a particularly broad group, with representatives from the GNSO stakeholder organizations, the ccNSO, the ALAC, the SSAC and the ASO – just about every group except the GAC. Given the timely subject matter, the meeting was well attended. The CCWG-IG submitted a contribution to NETmundial to provide the ICANN stakeholder perspective, and to counterbalance the inaccuracies in a number of contributions. As part of this meeting, the CCWG-IG asked for comments from the community on the CCWG-IG contribution, the IANA transition, and Internet Governance issues generally. Comments from the floor and the committee underscored the importance of bottom-up, consensus-driven decisionmaking and transparency and accountability in any multistakeholder process.

I next went to a session on ICANN Strategy Panels & the Planning Process. These four panels were assembled, in a rather top-down fashion, by Fadi Chehade last July. Each of these panels prepared reports that were published a few weeks prior to the meeting. The results were rather uneven. Given the importance of the multistakeholder process in the IANA Transition, the Strategy Panel on Multistakeholder Innovation could have been particularly pertinent. Unfortunately, it seemed to suffer from an emphasis on "crowdsourcing" ideas – which appears to mean that ideas good and bad are given equal weight – and a lack of study of the actual ICANN multistakeholder process, which gave the results a rather disconnected and uninformed feel. Further, Beth Simone Noveck was the only panel chair not to attend in person, instead participating by phone and joining only for her part. With that, and her status as an ICANN "newbie," she was probably unaware of the robust "give and take" that took place during questioning after the other presentations (and which is typical of ICANN meetings). By comparison, her presentation and responses to questions seemed evasive and uninformative, which might have been avoided if she participated more fully in the meeting. The future of these Strategy Panel reports seemed unclear as well – Fadi indicated that the panels would not be moving forward, although it seemed as if they might revise their reports based on the public comment period currently underway.

My last meeting of the day was "ICANN Accountability." Considering how important ICANN’s accountability will be, given the IANA transition, this is a significant topic. A fair amount of time was spent summarizing and discussing ICANN’s current accountability mechanisms. Key to ICANN’s accountability responsibilities is the "Affirmation of Commitments," a non-contractual document executed by the United States and ICANN, which sets out a number of ICANN’s responsibilities. The AoC is expected to evolve as part of the IANA transition. The United States will remain a party; however, other nations and possibly other stakeholders are expected to sign on to the AoC, and the content of the AoC may change as well – possibly significantly. The floor was opened for comments. A number of these comments reflected concerns that these mechanisms needed improvement.

While a great deal of attention was paid to the IANA transition and other Internet Governance issues, additional issues of considerable significance were covered on Monday. The overall progress of the New gTLD Program was discussed. In short, it’s full speed ahead for New gTLDs, with nearly 200 now open for business and nearly twice that number of registry contacts signed. Most of the objections have been resolved, and many of the contention sets have been resolved as well.

Name Collisions were also the subject of a very well-attended session. A report on name collision mitigation is now out for public comment, but unfortunately the underlying data is not available, ostensibly because the data would reveal a number of current vulnerabilities. The good news is that the name collision issue is being given fairly serious treatment; the bad news is that much of the work to mitigate the problem must be done by operators of existing enterprise networks, many of whom may not even know that the issue exists. Affected registries are impatient to move forward, but there are no shortcuts.

The last "official" event of the day was the Gala, held in the "Gardens by the Bay," a botanical garden that features huge domed indoor gardens, as well as outdoor "supertrees" – huge tree-like structures lit up against the night sky. The combination of nature in an artificial setting, and artificial trees in a natural setting, seemed fitting for an ICANN meeting, an organization rife with contradictions.

Tuesday is "Constituency Day" at ICANN, where the various constituencies, stakeholder organizations and supporting organizations work in their groups, which are open to public oversight and comment. Given all the change in the air, it was an interesting day….

Stay in Tune with SAG-AFTRA - Town Hall Meeting in Los Angeles

Joint Policy Committee’s LA Town Hall Meeting, Hosted by Talent Partners

Join us on Tuesday, April 29th to find out what’s new in 2014, including the following hot topics:

  • Resolution of SAG-AFTRA CBA Issues
  • Overview of the Audit Process
  • Recent SAG-AFTRA Arbitration
  • Ad-ID
  • Discussion of the Experimental Waiver for Made Fors
  • AFM Update

Register Now by RSVP'ing directly to Michelle Elliott at melliott@talentpartners.com. (Space is limited)

Date:
Tuesday, April 29th
10:00am - 10:30am: Breakfast & Networking
10:30am - 12:00pm: Stacy Marcus, JPC - LA Town Hall Meeting

Location:
JW Marriott Santa Monica Le Merigot
1740 Ocean Avenue
Santa Monica, CA 90401
Map and Directions

FTC Has User Generated Content on the Run

In a recent letter to shoe retailer Cole Haan regarding its Wandering Sole Pinterest contest, the Federal Trade Commission (FTC) signaled a major change for promotional contests conducted through social media platforms.  In the letter, the FTC determined that the Pinterest contest sponsored by the company was a form of product endorsement, subject to Section 5 of the FTC Act, which requires the disclosure of a material connection between a marketer and an endorser when their relationship is not otherwise apparent from the context of the communication that contains the endorsement.

In the Wandering Sole Pinterest contest at issue, participants were asked to post five pictures of their favorite Cole Haan shoes and five pictures of their favorite places to wander, tagging each picture with #WanderingSole. Cole Haan promised to award $1,000 to the participant with the most creative pictures.

Cole Haan’s contest was a pretty straightforward Pinterest promotion, similar to others commonly run by advertisers. However, in this case the FTC determined that participants’ posts featuring Cole Haan products were endorsements of the company and that viewers of the posts would not reasonably expect that the posts were incentivized by the chance to win $1,000. The FTC expressed additional concern that Cole Haan did not instruct contestants to label their posts and Pinterest boards to make it clear that they had pinned Cole Haan products as part of a contest.

The FTC acknowledged that prior to the letter to Cole Haan, it had not publicly addressed whether entry into a contest is a form of material connection, nor whether a pin on Pinterest constitutes an endorsement, so the FTC opted to send the letter and not commence any further proceedings.

What does this mean for advertisers wishing to conduct Pinterest contests and social media promotional contests in general?

Importantly, the letter does not challenge the legality of such promotions and contests, but rather imposes additional disclosure requirements. Unfortunately, the FTC letter did not include guidance on disclosures that would have been sufficient. Until further guidance is issued, marketers and advertisers should take extra care in promotional contests across all social media platforms that rely on user generated content.

ANA Submits Comments on Big Data in Response to Request for Information

In January, President Obama called on senior government officials to lead a review of the implications of Big Data for privacy, the economy and public policy. A Federal Register Notice by the White House’s Science and Technology Policy Office sought comments from industry participants on a variety of issues related to Big Data. Earlier this week, the ANA submitted its comments in response to the Notice, focusing on the public policy implications of the collection, storage, analysis, and use of Big Data. In determining what the potential concerns of Big Data are, the ANA said that the focus should be on the sensitivity and potential vulnerability to harm of the data, not the amount of data in and of itself. As an example, the ANA pointed out that, “[c]ommercial privacy issues must not be allowed to be conflated with government surveillance and potential reforms at the NSA. These issues must not be confused with interest-based advertising or online behavioral advertising (OBA).” The ANA also urged that any governmental decisions about commercial data collection and use be made “carefully, correctly and judiciously.” In its comments, the ANA highlighted the progress made over the past few years by the private sector to enhance privacy protections for consumers, making specific reference to the self-regulatory efforts by the Digital Advertising Alliance. To view the ANA’s submission in full, please click here.

Why This Matters: The ANA’s views are shared by many in the advertising industry. Whatever measures (if any) the government takes in this space should be commensurate with the type of data at issue and in coordination with the ongoing efforts by the private sector to develop self-regulatory solutions.

Arbitrator Finds for SAG-AFTRA in Allocation Dispute: Signatory Ordered to Pay Additional Pension and Health Contributions to the SAG Plans

This post was written by Stacy K. Marcus and Frederick Lah.

On March 18, an arbitrator ordered a signatory to the SAG 2009 Commercials Contract -- Talent Direct ("TD") -- to pay additional pension and health contributions to the SAG-Producers Pension and Health Plans (the "SAG Plans") after allocating less than the amounts set forth in the Allocation Guidelines.  This arbitration ruling is the first of its kind since the institution of the Allocation Guidelines in 2009.

On March 15, 2007, model/performer Andy Lucchesi ("Lucchesi") entered into an agreement with the clothing company, Tommy Bahama, for the right to feature Lucchesi in print ads, TV commercials, and in-store promotional materials (the "2007 Agreement").  Tommy Bahama engaged Talent Direct ("TD") to serve as signatory and to make P&H contributions pursuant to a 10% allocation to covered services.  Following a dispute with the SAG Plans as to the appropriateness of the 10% allocation in the 2007 Agreement, in January 2009 TD and the SAG Plans entered into a settlement agreement providing for a 20% of the model/performer's total compensation was allocated to covered services (the "Settlement").  On April 16, 2009, Lucchesi and Tommy Bahama entered into a new contract (the "2009 Agreement") for the right to feature him in print ads, TV commercials, and in-store promotional materials.  Relying on the Settlement, the 2009 Agreement provided for a 20% allocation to covered services.  Months later, the 2009 Commercials Contract was made effective on April 1, 2009.  Under the Allocation Guidelines added to the 2009 Commercials Contract, Guideline B requires a 40% allocation to covered services for multiple service contracts if the performer's principle income is derived from modeling services.  Because the model/performer worked primarily as a model, SAG-AFTRA believed that the 40% allocation should be applied.  TD denied any contribution beyond the original 20% allocation insisting that the Settlement took precedence over the Allocation Guidelines. The arbitrator held that the Settlement was limited to resolution of the allocation dispute of the 2007 Agreement, and that it did not contain language that provided for a 20% allocation in future contracts.  Therefore, the arbitrator sided with SAG-AFTRA and held that the model/performer was entitled to the 40% allocation, along with liquidated damages for late payment. 

This case is the first decision to be handed down by an arbitrator regarding interpretation of the 2009 Allocation Guidelines.  This decision serves as an important reminder that settlements of prior allocation disputes may not necessarily be relied upon in determining future allocations, and that much depends upon the specific language of the settlement agreement.  It also seems as though the arbitrator did not engage in any analysis of whether a 20% allocation was fair and  reasonable based upon the services rendered/rights granted under the 2009 Agreement.  In fact, the arbitrator even acknowledged that no covered services were even rendered by Lucchesi under the 2009 Agreement.  Nonetheless, the arbitrator held that "[t]he most reliable indicator of mutual intent is the words used by the parties in their labor contract."  The arbitrator then applied the language of the 2009 Allocation Guidelines and held that "[t]he 40% allocation sought by [SAG-AFTRA] is required by Section 46.E of the [2009 Commercials Contract]."

Straight from Singapore: Special Edition on the IANA Transition

House Republicans have introduced a bill to block the IANA transition.  These are the same Republicans behind the quickly-called hearings set for April 2. "America shouldn’t surrender its leadership on the world stage to a ‘multistakeholder model’ that’s controlled by foreign governments," said Rep. Marsha Blackburn (R-Tenn.).  This seems to ignore a number of the points set out in the NTIA announcement, which specifically says that any government-led or intergovernmental-led solution will be rejected.  On top of that, an implementation of the multistakeholder model to assume the IANA oversight functions hasn’t been proposed yet.  The process of developing that implementation hasn’t even been proposed yet.  Yet somehow, these lawmakers believe they need to pull out jingoistic rhetoric to support wild-eyed claims that the Internet could turn into "another Russian land-grab."

Granted, the IANA functions, the NTIA’s oversight role and the parameters set for the transition of this oversight role to a multistakeholder mechanism takes a little while to understand.  They eyes of the world are on the United States, and these eyes are skeptical right now. An ill-informed move like this damages United States credibility.  Many people will understand that this is naked political grandstanding – a fine old American tradition.  But many others will not.  And even those who know what this is, may well use it to demonstrate that U.S. oversight of the IANA functions is not benign, but rather is subject to the political whims of ill-informed American lawmakers.

There are real reasons to be careful and concerned about out the IANA transition.  These should be identified and discussed and debated by all stakeholders – and we are all stakeholders.  But these are not good reasons, and this type of knee-jerk bill-introducing and hearing-calling does not help the process or the United States' role in that process.  I believe this bill will fail, and the debate will come back to the real issues.  Let’s hope this sideshow does not do real damage to the process.

ANA Webinar Make Up Session: Monday, March 31

For those of you who were unable to participate or are interested in joining the make up session of the ANA's complimentary webinar, SAG-AFTRA Commercials Contract: Common Myths and Mistakes, presented by Stacy Marcus, here is the information:

Monday, March 31 at 3:00 pm EDT

Access the webinar using this login link.

To access the audio:
Phone number: 866.302.7047
Access code: 5434704902

The information to access the audio will also be displayed once you click the link above. You will be able to access the seminar room up to one-half hour before the session.

Webinar Overview: Covering public service announcements, the P&H cap, and the ever-sticky issue of B-roll, this webinar will illuminate the common legal and regulatory missteps advertisers and agencies make when producing under the SAG-AFTRA Commercials Contract. 

Also, just a reminder that Stacy Marcus will be speaking on the SAG-AFTRA commercials contract at the upcoming ANA Advertising Law & Public Policy Conference, April 23-24 in Washington, D.C.

SAG-AFTRA Commercials Contract - Residual Payments for THIS TV and Antenna TV

SAG-AFTRA and the Tribune Company have come to an agreement on residual payments to be made under the 2013 SAG-AFTRA Commercials Contract for commercials airing on Antenna TV and THIS TV.

The payment structure is the same as the terms applicable to payments for commercials aired on PAX/ION, BounceTV and MeTV.

Download the SAG-AFTRA agreement letter with the specific payment provisions.

SAG-AFTRA Commercials Contract - Update on Running Footage: Drivers

Special provisions for payment for drivers who are employed to provide services for “running footage” or “wild footage” for motor vehicle commercials have been in existence since 1992.

Download an updated joint JPC/SAG-AFTRA bulletin, providing a recap of those provisions, which have been updated to reflect the current on-camera principal rate and the current number of extra zones.

Straight from Singapore #2: The Beat Goes On

The second day of ICANN49 was "visiting day" for the Generic Names Supporting Organization (GNSO), with various ICANN staff and stakeholder groups meeting with the GNSO. Meanwhile, the Governmental Advisory Committee (GAC), ICANN’s mini-United Nations, huddled in another room, also receiving visitors from time to time.

The GNSO was visited by Cyrus Namazi and others from the Generic Domains Division (GDD), the group within ICANN staff tasked with running the New gTLD Program and dealing with existing gTLDs as well. We received a breakneck summary of the status of applications. Most objections to the new gTLDs have now been resolved – only 14 are still left to resolve. It looks like ICANN will be running some "last resort" auctions to resolve contention sets (where there are multiple applicants for the same domain name). In last resort auctions, ICANN keeps the money paid by the winning bidder. In private auctions or other arrangements, the losing bidder(s) get paid by the winning bidder. The last resort auction is only used where the bidders cannot agree among themselves to resolve the contention set privately (hence the "last resort" name). Some thought there would be no last resort auctions, so this was a mild surprise.

The real surprise from the GDD came out when they announced their intention to measure and track the economic and social impact of the new gTLDs, in order to prepare for round two of new gTLD applications. Round Two? Round Two? Many have asked if there would be a Round Two; now. It appears that Round Two is a "when" and a "how," not an "if." For those of you who survived Round One, this is big news. If you felt left out, this is good news. If you are a first round applicant, this may be bad news, as more competition floods the market. If you are a brandowner, still trying to figure out how to police and enforce your trademarks in over 1,000 new domains, be prepared to redouble your efforts. Brandowners should look at Round Two skeptically – is it needed? Can issues in Round One be resolved? Can it be stopped? Be prepared to spend time, money and effort on these questions, if you want to help shape the answers.

Jon Nevett, from Donuts, expressed surprise that Round 2 would be an ICANN staff-driven project, when Round 1 was driven in large part by the GNSO. He challenged the GNSO to own the issue. Several councilors agreed, and one noted that the GNSO will need the metrics, too. The GDD quickly backtracked and said that they had phrased this wrong – this was just about the metrics and they would be looking to the GNSO to drive Round 2. ICANN Staff continually needs to be reminded that the essence of ICANN is that it is a bottom-up, consensus-driven, multistakeholder organization – not merely a corporation that can act on its own initiative.

The GDD went on to discuss the various open public comment periods, which led to a discussion of how overloaded the various groups within the GNSO are in reviewing documents and providing public comments. It also turns out the document on Name Collision solutions put out for public comments lacked the underlying data – making it rather difficult to comment intelligently. The GDD replied that the data could actually make some existing networks more vulnerable (apparently, by revealing specific name collisions that could be "exploited" to breach a private network), but that it would be available in a couple of months. Somehow none of that is too comforting. In any event, the main "solution" is to put the burden on entities with private networks to mitigate the problem, by locating name collisions in their networks (i.e., when an internal "domain" or server on the network has the same "name" as a new gTLD). Since just about everybody now has a network of some sort – that means you.

Another significant issue came up at this point, and would be repeated later in the day. The Registrar Accreditation Agreement (RAA) calls for registrars (the GoDaddys and Network Solutions of the world) to retain information about domain name registrants after their registrations change or expire (at least in part, to assist law enforcement and private enforcement of legal rights). However, there is a widely-held view that EU data protection laws prohibit such data retention. A number of EU-based registrars have asked ICANN for "data retention waivers," in order to comply with the law as they understand it. Before today, one waiver had been issued, and a second was issued just today. Some EU-based registrars have not signed the RAA, which means they cannot act as registrars for the new gTLDs. Others have signed the RAA. Registrar stakeholder representatives asked whether ICANN would waive enforcement of this provision for EU registrars – ICANN staff was noncommittal.

Another point was raised, in two variations, that would become a theme throughout the day. First, Elliot Noss of TuCows (a major registrar) stated that ICANN and the multistakeholder model will be under greater scrutiny due to the NTIA announcement regarding the IANA transition. As he stated today – "the world is watching." (Loyal readers will note that was the title of yesterday’s blog post – you heard it here first.) Second, the GNSO (as a living example of the multistakeholder model) needs to do a better job of working with ICANN Board and Staff (and vice versa).

The next visitor was Theresa Swinehart, Special Advisor to the President on Strategy. She spoke to the GNSO about the various Strategy Panels that Fadi had commissioned and which she shepherded. The Strategy Panels, composed of "experts" largely drawn from outside ICANN, had produced four reports, which are now out for public comment until April 24 (in our copious free time). GNSO members were quite critical of the reports, finding them often ill-informed, misleading and inaccurate, as well as tedious and impenetrable. It was noted that the Panel on Multistakeholder Innovation had failed to engage in any meaningful way with the GNSO (one of the very groups where their innovations might be implemented), instead choosing to crowdsource many of their observations and present them undigested.

Based on Fadi’s discussion yesterday, the GNSO pushed for assurances that none of these reports would be implemented in any way, and would just sit there as completed projects, for whatever they’re worth. Theresa’s slides stated that the "Fate of recommendations to be determined after extensive community input, CEO & Board consideration." Of course, this is not ICANN’s process for dealing with potential changes in policy, governance, etc. It turns out that this was misphrased as well. There would be no fate other than limbo, the conclusions would not be treated as recommendations, unless the multistakeholder process decided to lift out a nugget and pursue it. We’ll see.

Now, it was time for the centerpiece of the day – the ICANN Board’s visit to the GNSO. The GNSO quickly cited several recent policy development successes by the GNSO – the IGO/INGO Protections, Thick Whois, and Privacy & Proxy Service Accreditation. The IGO/INGO Protections policy recommendations are a subject of controversy, since the GAC had already presented "advice" to the Board that was at odds with the GNSO recommendations, which were adopted by the Board as "temporary protections." Meanwhile, the Board had not yet voted on the GNSO recommendations. A spirited and direct discussion took place, criticizing the Board’s handling of this "policy clash." First, the GNSO community is frustrated by the failure of the Board to bring the GNSO recommendations to a vote. Rather than adopting (or rejecting) the GNSO recommendations, the Board seems to be crafting some kind of compromise in negotiations with GAC and IGO representatives, and then informing the GNSO of the results of these negotiations by letter. The GNSO objected strongly to being left out of the process, and insisted that any further discussions should include representatives of the GNSO. Steve Crocker, the Chairman of the ICANN Board, stated that he did not want to take the GNSO recommendations to a vote until he fashioned a compromise.

This issue is actually bigger than the issue of IGO protections. The real issue is the relative power of the GNSO and the GAC, and the rise of the GAC as a de facto policy development body for gTLDs. The Board is in a tough place, but nothing less than the integrity and balance of the ICANN policy development process is at stake. While there is a process to deal with this type of clash, it is heavy-duty and time consuming. The Board would like to find a quick ad hoc way to deal with this, which may end up being elegant or expedient, depending on your point of view. (You can get a more detailed sense of the discussion at my Twitter feed @GSS1958.)

The rest of the conversation was less heated. The GNSO Council and the Board discussed the need for greater global stakeholder engagement and retention, especially in the developing world. This could include adjusting some of the barriers to entry for potential registrars in the developing world, to assist with local access to the Internet and ultimately bring more people online.

The last visitor was the Meeting Strategy Working Group, which is looking into different models for ICANN meetings. It was clear that the team was very earnest, had put in a lot of work and had some very pretty slides. Currently, ICANN meets three times a year, for six days at a time. The MSWG plan reminded me of Goldilocks – one 6 day meeting similar to the current model, one 4 day meeting devoted to the working elements of ICANN (GNSO, GAC, Working Groups), and one 8 day (!) meeting devoted to showcasing ICANN to the world. The plan, while sincere, seems way off the mark. The plan is open for public comment (yes, another public comment) until April 4, with a reply period until April 25. We’ll have to see what comes of this.

Finally, it was the GNSO’s time to go visiting, and we trekked to the GAC. The time was largely devoted to discussion of a joint GAC/GNSO Working Group to deal with the challenges that the GNSO and GAC have working together and coordinating efforts. Some very nice charts were put up showing the GNSO policy development process and suggesting where and how the GAC could enter, provide input to or coordinate with this process. The basic message was that the GAC really needs to engage with the GNSO process earlier in the game, when consensus and recommendations are being developed. By and large, it was a friendly, innocuous meeting – and the IGO/INGO situation was never mentioned. (By contrast, the GAC/GNSO meeting in Durban featured a fairly testy exchange on the matter.)

At this point, the day was done and so was I. After a delicious Indian meal, it was time to head back up to the 60th floor, admire Singapore by night, and bring you this blog, Straight from Singapore.

Greg Shatan

Straight from Singapore #1: ICANN Goes to Singapore, and the World is Watching

The Internet Corporation for Assigned Names and Numbers (ICANN) is descending on Singapore for its 49th semi-annual meeting: #ICANN49. A week ago, the National Telecommunications and Information Administration (NTIA), part of the U.S. Department of Commerce, dropped a bombshell – the United States would relinquish its oversight of key functions of the Internet: the “IANA functions.”  The NTIA decreed that ICANN would oversee the transition of this oversight to the “global stakeholder community,” and the NTIA wanted it done by the end of September 2015, when the current “IANA contract” expires.

This announcement changed the focus, the agenda, and the tone of the ICANN meeting. After the “Snowden revelations,” it was clear that “Internet Governance” was going to be a major topic – but on a theoretical level, with no particular timeline and no particular role for ICANN. Now, with a real project, a real role and a real deadline, ICANN and the ICANN community are on the clock and under the microscope.

I left New York bright and early on Thursday morning, ready for a 24-hour trek around the world. After a 6-hour flight to London and a layover in Heathrow (where I picked up the “The Snowden Files” in the WH Smith bookshop), I boarded a 12-hour flight to Singapore on Singapore Airlines and entered a different world. If there’s such a thing as a “loaded” economy seat, this was it – footrest, cupholder, plugs of all kinds. After some sleep and a couple of “Best Picture” contenders, we landed at 6:30 p.m. Friday. Good evening, Singapore!

Checking in a at the Swissôtel The Stamford, I was pleasantly surprised when I was told that I was being given a complimentary upgrade to the executive level floors. I was whisked up to a separate reception area on the 60th floor, where I got to sit down to complete my check-in (very civilized!). After learning about the complimentary breakfast (which turned out to be quite spectacular), the complimentary cocktails (too late for tonight), and the other perks I lucked into (a beautiful flowering plant!), I hunted down some colleagues for dinner and then called it a night.

Saturday at an ICANN meeting is devoted to working meetings dawned bright and (too) early, with a 7:30 a.m. meeting of the GNSO Council’s Standing Committee on Improvements Implementation (SCI). This committee is tasked with improving the processes and procedures of the GNSO Council. Sometimes procedures need to be put in place to stop gamesmanship and other times procedures are suggested that amount to gamesmanship. Since joining the SCI as the alternate representative from the IPC (the Intellectual Property Constituency), I’ve tried to assist with the first and make sure we avoid the second. As long as we are smoothing the process of the GNSO Council and allowing substance to flow freely, we’re doing our job. We moved several agenda items forward, including rules on resubmitting motions, submitting motions past the 10-day deadline (which was itself a rule put in place to avoid “gaming”) and email voting.

After that, the GNSO working session began. The high point of the day was a visit from Fadi Chehade, the President and CEO of ICANN. Fadi made a number of key points, and dropped a couple of small bombshells of his own (my thoughts in parentheses):

  • The biggest misconception he has to deal with is that ICANN is under the control by the U.S. government. (For better or worse, it’s not, and will be even less so after the “IANA transition.”)
  • When asked for the best advice he ever received, he paraphrased a Dag Hammarskjold quote that it is very important to be attached to the process, not to the result.
  • Following the NTIA announcement, Fadi has dissolved the President’s Global Advisory Groups on IANA globalization and on the Affirmation of Commitments. He stated that this is now the work of the community and the groups are no longer needed.
  • The other global advisory groups were put on hold. These groups, chosen in a “top-down” function, had been a source of friction with the “bottom-up” multistakeholder community at ICANN.
  • He believes that the IANA transition and the NTIA’s mandate gives ICANN an “incredible edge in what we do.”
  • He explained that there have been huge attacks on ICANN and the multistakeholder model (implicitly, from intergovernmental organizations and those who want greater governmental control of ICANN and the Internet) and this will help in dealing with those pressures.
  • Fadi wanted to clear up a major misconception – that we are looking for a new organization to take the place of the U.S. government as the “steward” of the IANA functions. We are not. We are looking for a new mechanism. (In other words, the IANA Contract as we know it will lapse, rather than being assigned by the U.S. to another organization.)
  • He asked (rhetorically) what keeps ICANN in check. He cited the U.S. government, “but that will change.” He also mentioned the Affirmation of Commitments (a not-quite-contract between ICANN and the U.S.), but the “AoC” has a problem – it’s only with the U.S. The AoC has to be between ICANN and the “global stakeholder community.” We don’t want to send a message that only governments can keep ICANN in check.
  • Fadi confirmed that ICANN’s role as the “IANA administrator” will not the change. Only the U.S. role regarding the IANA functions is being replaced. (In the larger debate about Internet Governance, there have been quite a few suggestions to move the IANA functions out of ICANN; clearly, one of the goals here is to stop that discussion.)
  • However, he did say that the U.S. contract with Verisign relating to root zone issues would also be “sunsetted.”
  • Finally, Fadi admitted that he can be too “top-down” and he encouraged “frank engagement” every few weeks with the GNSO Council and others to discuss whether things feel too top down.

These were significant clarifications and announcements and they are still being digested (at least by me, along with the Khao Soi I had for lunch).

In another highlight of the day (at least for me), I was invited to speak on a panel at “i-engage,” a side-conference run by NPOC, the non-profit organizations constituency, on rights protection mechanisms (RPMs) for NGOs and small businesses, especially those engaged in development. The panel told a small but enthusiastic crowd how important RPMs, such as the UDRP and the new URS, are to all organizations to protect their identity. These entities face even greater challenges, since budgets are often small, trademark protection is not a major line-item, and money spent on domain name enforcement is money taken from the organization’s mission.

The day ended for me with a two hour meeting of the “Cross-Community Working Group on Internet Governance,” in preparation for our public meeting on Monday. The Group was originally put together to manage the ICANN stakeholder response to “NETmundial,” the Global Multistakeholder Meeting on the Future of Internet Governance, taking place in Brazil on April 23-24. The NTIA announcement regarding the IANA transition has threatened to crowd the rest of the agenda – there are Internet Governance issues other than the IANA transition that will be discussed at NETmundial, and the Group needs to be prepared. If we don’t address the IANA transition, we’ll be seen as “out of step.” If we devote our meeting to the IANA transition, we won’t get feedback from the community to help us prepare for NETmundial. It will be interesting to see how the meeting goes (and who shows up).

The day ended with a drink high above the city in the 60th floor executive level lounge, admiring the sunset and the skyline of Singapore. Tomorrow, back down to the windowless conference rooms and the spills, chills and thrills of ICANN and Internet Governance.

If you want to follow me in real time, I’ll be tweeting from @GSS1958. If you would rather sleep, you can wait for my next Straight from Singapore post. Who knows what tomorrow will bring?

Greg Shatan

First New UDRP Decision Issued for gTLDs

This post was written by Brad R. Newberg.

In the first of what are likely to be many Uniform Domain-Name Dispute-Resolution Policy (UDRP) and Uniform Rapid Suspension (URS) cases related to the new gTLD program, CANYON.BIKE was transferred to Canyon Bicycles GmbH of Koblenz, Germany. This seems to have been a relatively easy decision for the arbitrator, since the Respondent’s defense was “that he registered the disputed domain name to enlarge his network and ‘get in (friendly) contact with Canyon.’ The Respondent submits that a lot of people in the cycling industry did not know of the forthcoming new gTLDs and he therefore registered some domain names ‘to protect companies’ from domain squatting. The Respondent adds that before he was able to contact the Complainant it filed the present Complaint.” The Respondent made this claim even though he was seeking money from the trademark owner for the domain name, and had advertisements at the domain name for the trademark owner’s competitors.

As Reed Smith reported in a case study on .BIKE last month, the majority of bicycle brand names registered in the .BIKE gTLD appear to have been registered by cybersquatters as opposed to the owners of the trademarks themselves. Similar results have been found when examining .CLOTHING and others.

Given the very high incidence of cybersquatting in the new gTLDs, it will be interesting to see whether the majority of brand owners go after the cybersquatters through UDRP and URS proceedings, which would greatly increase the number of cases filed over the next year, or if most of them take a wait-and-see approach, even among infringements in gTLDs directly related to their industries, with the hope that the new gTLDs will not catch on and any confusion among consumers will be minimal.

A snapshot taken at the time of writing this post suggests the latter, but that could change quickly. Right now, there are only a few listed pending UDRPs on the WIPO database among new gTLDs, such as loehmanns.clothing, statoil.holdings, and statoil.ventures. A few more disputes are listed on the National Arbitration Forum database, but almost all of those, such as various ones filed by Richard Branson/Virgin, Accenture, BBVA, and Heartland, appear to be of the URS variety.

As the URS proceeding is cheaper – but does not transfer a domain name, only suspends it – conventional wisdom would expect that the URS proceedings would be used for the majority of garden-variety cybersquatting situations, whereas the UDRP would be for those situations where the gTLD string is the name of a product, service or industry directly related to the brand name, making it more likely that the trademark owner would want the domain name transferred. Either way, both types of proceedings are certain to be used more frequently in the coming months.

The attorneys in our Internet, ICANN, and Domain Name Practice have been at the forefront of the gTLD launch, having participated in ICANN’s multistakeholder process, including serving on working groups, and drafting teams and committees to help formulate protection mechanisms for trademark holders in the new system. Reed Smith can help companies navigate this new landscape in a variety of areas that include dispute-resolution procedures, registration, brand protection and compliance.

FDA to Drug Companies: We Are Watching - Even on Social Media

The FDA recently issued a warning to a Swiss drug company for failing to include on its Facebook page a product's risk information and limitations. Although this type of enforcement activity involving drugmaker conduct on social media has been rather uncommon, it is a stern reminder for companies that the FDA is monitoring activity, and that its marketing and advertising rules apply to product promotion over social media networks as well. For additional information on this story, read the latest post on our firm’s Life Sciences Legal Update blog.

Michael Jordan Wins Appeal in Trademark and Publicity Case

Back in 2009, Time magazine, the publisher of Sports Illustrated, ran a special commemorative Sports Illustrated issue devoted entirely to Michael Jordan's basketball career. Jewel Food Stores, Inc. ("Jewel"), the operator of supermarkets in the Chicago area, was offered free advertising in the issue in exchange for agreeing to sell the magazine in its stores. Jewel ended up running a full page ad in the issue congratulating Jordan on his induction into the Hall of Fame. The ad, which can be seen below, featured text recognizing Jordan's accomplishments and a pair of "23" sneakers, and prominently featured the Jewel logo and slogan in the middle of the ad.

Jordan brought suit against Jewel claiming that the ad was a misappropriation of his identity for Jewel's commercial benefit under the Lanham Act, as well as violations of Illinois' Right of Publicity Act and common law. He sought $5 million in damages, plus punitive and treble damages under the Lanham Act. In defense, Jewel claimed that the ad was noncommercial speech, entitling Jewel to First Amendment immunity. After the lower court sided with Jewel, Jordan appealed the matter to the Seventh Circuit. Last week, the Seventh Circuit reversed and remanded the case, holding that the ad was commercial speech.

The Seventh Circuit held that while the ad was clearly a congratulatory salute to Jordan, it also served to implicitly promote Jewel. In its analysis, the court first noted that Jordan's "singular achievements on the basketball court have made him highly sought after as a celebrity endorser; as a retired player who continues to reap the economic value of his reputation in the history of the game, he understandably guards the use of his identity very closely." The court then dismissed Jewel's argument that the ad was no different from other ads it had run commending local groups in their public service achievements. Said the court, "But an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser. Unlike a community group, the athlete needs no gratuitous promotion and his identity has commercial value." Finally, the Seventh Circuit emphasized the central placement and prominence of the Jewel logo and slogan in the ad. In concluding the ad was commercial speech, the court held that "[t]he ad is a form of image advertising aimed at promoting goodwill for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career."

Jordan is also involved in similar litigation against Dominick's Finer Foods involving another congratulatory ad. That litigation is ongoing.

This case serves as a reminder to advertisers that referencing or invoking well-known brands or public persona without their permission can be a dicey area. And when you're dealing with brand or persona as powerful as Michael Jordan’s, those risks can be even higher.

FDA Makes Changes to Nutrition Facts Label

In order to provide consumers with increased information to make well-informed food choices, the FDA announced today a noteworthy overhaul in the presentation of the Nutrition Facts panel on packaged foods. Among the revisions are updates to the display, including font size changes and bolded text, new serving size and nutrient content calculations, and added sugar information. The changes will have implications for the advertising industry, presenting advertisers with the opportunity to capitalize on various nutrition claims. The FDA has invited feedback on the proposed changes and will be accepting comments for 90 days. For more information, please read the recent post on our Life Sciences Legal Update blog.