Intellectual Property and the Internet/ICANN

The Internet Corporation for Assigned Names and Numbers or ICANN is a non-profit corporation headquartered in Marina del Rey, California, United States, that was created on September 18, 1998, and incorporated on September 30, 1998 to oversee a number of Internet-related tasks previously performed directly on behalf of the U.S. government by other organizations, notably the Internet Assigned Numbers Authority (IANA), which ICANN now operates.

ICANN is responsible for the coordination of the global Internet's systems of unique identifiers and, in particular, ensuring its stable and secure operation. This work includes coordination of the Internet Protocol address spaces (IPv4 and IPv6) and assignment of address blocks to regional Internet registries, for maintaining registries of Internet protocol identifiers, and for the management of the top-level domain name space (DNS root zone), which includes the operation of root nameservers. Most visibly, much of its work has concerned the DNS policy development for internationalization of the DNS system and introduction of new generic top-level domains (TLDs). The actual technical maintenance work of maintenance of the central Internet address pools and DNS root registries ICANN performs pursuant to the "IANA function" contract.

ICANN's primary principles of operation have been described as helping preserve the operational stability of the Internet; to promote competition; to achieve broad representation of the global Internet community; and to develop policies appropriate to its mission through bottom-up, consensus-based processes.

On September 29, 2006, ICANN signed a new agreement with the United States Department of Commerce (DOC) that moves the private organization towards full management of the Internet's system of centrally coordinated identifiers through the multi-stakeholder model of consultation that ICANN represents.

History
Before the establishment of ICANN, the Government of the United States controlled the domain name system of the Internet.

The original mandate for ICANN came from the United States government, spanning the presidential administrations of both Bill Clinton and George W. Bush. On January 30, 1998, the National Telecommunications and Information Administration (NTIA), an agency of the U.S. Department of Commerce, issued for comment, "A Proposal to Improve the Technical Management of Internet Names and Addresses." The proposed rule making, or "Green Paper", was published in the Federal Register on February 20, 1998, providing opportunity for public comment. NTIA received more than 650 comments as of March 23, 1998, when the comment period closed.

The Green Paper proposed certain actions designed to privatize the management of Internet names and addresses in a manner that allows for the development of robust competition and facilitates global participation in Internet management. The Green Paper proposed for discussion a variety of issues relating to DNS management including private sector creation of a new not-for-profit corporation (the "new corporation") managed by a globally and functionally representative Board of Directors. ICANN was formed in response to this policy. The IANA function currently exists under an agreement with the U.S. Department of Commerce.

ICANN was incorporated in California on September 30, 1998. It is qualified to do business in the District of Columbia. ICANN was established in California due to the presence of Jon Postel, who was a founder of ICANN and was set to be its first CTO prior to his unexpected death. ICANN remains in the same building where he worked, which is home to an office of the Information Sciences Institute at the University of Southern California.

On July 26, 2006, the United States government renewed the contract with ICANN for performance of the IANA function for an additional one to five years. The context of ICANN's relationship with the U.S. government was clarified on September 29, 2006 when ICANN signed a new Memorandum of Understanding with the United States Department of Commerce (DOC).

In July 2008, the U.S. Department of Commerce reiterated an earlier statement that it has "no plans to transition management of the authoritative root zone file to ICANN". The letter also stresses the separate roles of the IANA and VeriSign.

Structure
At present, ICANN is formally organized as a non-profit corporation "for charitable and public purposes" under the California Nonprofit Public Benefit Corporation Law. It is managed by a 16-member Board of Directors, which is composed of eight members selected by a Nominating Committee on which all the constituencies of ICANN are represented; six representatives of its Supporting Organizations, sub-groups that deal with specific sections of the policies under ICANN's purview; an At-Large seat filled by an At-Large Organization; and the President / CEO, appointed by the Board. 

There are currently three Supporting Organizations. The Generic Names Supporting Organization (GNSO) deals with policy making on generic top-level domains (gTLDs). The Country Code Names Supporting Organization (ccNSO) deals with policy making on country-code top-level domains (ccTLDs). The Address Supporting Organization (ASO) deals with policy making on IP addresses.

ICANN also relies on some advisory committees to receive advice on the interests and needs of stakeholders that do not directly participate in the Supporting Organizations. These include the Governmental Advisory Committee (GAC), which is composed of representatives of a large number of national governments from all over the world; the At-Large Advisory Committee (ALAC), which is composed of representatives of organizations of individual Internet users from around the world; the Root Server System Advisory Committee, which provides advice on the operation of the DNS root server system; the Security and Stability Advisory Committee (SSAC), which is composed of Internet experts who study security issues pertaining to ICANN's mandate; and the Technical Liaison Group (TLG), which is composed of representatives of other international technical organizations that focus, at least in part, on the Internet.

Democratic input
In the Memorandum of Understanding that set up the relationship between ICANN and the U.S. government, ICANN was given a mandate requiring that it operate "in a bottom up, consensus driven, democratic manner." However, the attempts that ICANN have made to set up an organizational structure that would allow wide input from the global Internet community did not produce results amenable to the current Board. As a result, the At-Large constituency and direct election of board members by the global Internet community were soon abandoned.

ICANN holds periodic public meetings rotated between continents for the purpose of encouraging global participation in its processes. Critics argue that these public meetings are often held in countries with lower Internet usage and far away from locations that the majority of the Internet-using public can afford to reach. This makes public input or participation from traditional Internet users less likely. Supporters reply that ICANN has a worldwide presence, and a key part of its mission is to build Internet use where it is weak.

Resolutions of the ICANN Board, preliminary reports, and minutes of the meetings, are published on the ICANN website, sometimes in real time. However there are criticisms from ICANN constituencies including the Noncommercial Users Constituency (NCUC) and the At-Large Advisory Committee (ALAC) that there is not enough public disclosure and that too many discussions and decisions take place out of sight of the public.

In the early 2000s, there had been speculation that the United Nations might signal a takeover of ICANN, followed by a negative reaction from the US government and worries about a division of the Internet the World Summit on the Information Society in Tunisia in November 2005 agreed not to get involved in the day-to-day and technical operations of ICANN. However it also agreed to set up an international Internet Governance Forum, with a consultative role on the future governance of the Internet. ICANN's Government Advisory Committee is currently set up to provide advice to ICANN regarding public policy issues and has participation by many of the world's governments.

It is argued that ICANN was never given the authority to decide policy, e.g., choose new TLDs or shut out other interested parties who refuse to pay ICANN's US$185,000 fee, but was to be a technical caretaker. Critics suggest that ICANN should not be allowed to impose business rules on market participants, and that all TLDs should be added on a first-come-first-served basis and the market should be the arbiter of who succeeds and who does not.

A member of the European Parliament, William Newton-Dunn, has recently been addressing questions to the European Commission, which asks whether ICANN is engaging in restraint of European free trade laws by imposing restrictions on who can operate a TLD and sell domain names. Some restrictions are considered insurmountable by many small business owners and individuals, such as the perhaps partially refundable $185,000 application fee.

Activities
One task that ICANN was asked to do was to address the issue of domain name ownership resolution for generic top-level domains (gTLDs). ICANN's attempt at such a policy was drafted in close cooperation with the World Intellectual Property Organization (WIPO), and the result has now become known as the Uniform Dispute Resolution Policy (UDRP). This policy essentially attempts to provide a mechanism for rapid, cheap and reasonable resolution of domain name conflicts, avoiding the traditional court system for disputes by allowing cases to be brought to one of a set of bodies that arbitrate domain name disputes. According to ICANN policy, a domain registrant must agree to be bound by the UDRP — they cannot get a domain name without agreeing to this.

A look at the UDRP decision patterns has led some to conclude that compulsory domain name arbitration is less likely to give a fair hearing to domain name owners asserting defenses under the First Amendment and other laws, compared to the federal courts of appeal in particular.

Notable events
On March 18, 2002, publicly elected At-Large Representative for North America board member Karl Auerbach sued ICANN in Superior Court in California to gain access to ICANN's accounting records without restriction. Auerbach won.

In September and October 2003, ICANN played a crucial role in the conflict over VeriSign's "wild card" DNS service Site Finder. After an open letter from ICANN issuing an ultimatum to VeriSign, later supported by the IAB, the company voluntarily shut down the service on October 4, 2003. Following this action, VeriSign filed a lawsuit against ICANN on February 27, 2004, claiming that ICANN had overstepped its authority. In this lawsuit, VeriSign sought to reduce ambiguity about ICANN's authority. The antitrust component of VeriSign's claim was dismissed in August 2004. VeriSign's broader challenge that ICANN overstepped its contractual rights is currently outstanding. A proposed settlement already approved by ICANN's board would resolve VeriSign's challenge to ICANN in exchange for the right to increase pricing on .com domains. At the meeting of ICANN in Rome, which took place from March 2 to March 6, 2004, ICANN agreed to ask approval of the US Department of Commerce for the Waiting List Service of VeriSign.

On May 17, 2004, ICANN published a proposed budget for the year 2004-05. It included proposals to increase the openness and professionalism of its operations, and greatly increased its proposed spending from US $8.27 million to $15.83 million. The increase was to be funded by the introduction of new top-level domains, charges to domain registries, and a fee for some domain name registrations, renewals and transfers (initially USD 0.20 for all domains within a country-code top-level domain, and USD 0.25 for all others). The Council of European National Top Level Domain Registries (CENTR), which represents the Internet registries of 39 countries, rejected the increase, accusing ICANN of a lack of financial prudence and criticizing what it describes as ICANN's "unrealistic political and operational targets". Despite the criticism, the registry agreement for the top-level domains jobs and travel includes a US $2 fee on every domain the licensed companies sell or renew.

After a second round of negotiations in 2004, the TLDs eu, asia, travel, jobs, mobi, and cat were introduced in 2005.

On February 28, 2006, ICANN's board approved a settlement with VeriSign in the lawsuit resulting from SiteFinder that involved allowing VeriSign (the registry) to raise its registration fees by up to 7% a year. This was criticised by some people in the US House of Representatives' Small Business committee.

In February 2007, ICANN began the steps to remove accreditation of one of their registrars, RegisterFly amid charges and lawsuits involving fraud, and criticism of ICANN's handling of the situation. ICANN has been the subject of criticism as a result of its handling of RegisterFly, and the harm caused to thousands of clients due to what has been called ICANN's "laissez faire attitude toward customer allegations of fraud".

On May 23, 2008, ICANN issued Enforcement Notices against 10 Accredited Registrars and announced this through a press release entitled: "Worst Spam Offenders" Notified by ICANN, Compliance system working to correct Whois and other issues. This was largely in response to a report issued by KnujOn called The 10 Worst Registrars in terms of spam advertised junk product sites and compliance failure. The mention of the word spam in the title of the ICANN memo is somewhat misleading since ICANN does not address issues of spam or email abuse. Website content and usage are not within ICANN's mandate. However the KnujOn Report details how various registrars have not complied with their contractual obligations under the Registrar Accreditation Agreement (RAA). The main point of the KnujOn research was to demonstrate the relationships between compliance failure, illicit product traffic, and spam. The report demonstrated that out of 900 ICANN accredited Registrars fewer than 20 held 90% of the web domains advertised in spam. These same Registrars were also most frequently cited by KnujOn as failing to resolve complaints made through the Whois Data Problem Reporting System (WDPRS). The 10 Registrars cited were Xin Net, Beijing Networks, Todaynic, Joker, eNom, Monkier, Dynamic Dolphin, The Nameit Co, Directi, and Intercosmos.

On June 26, 2008, the ICANN Board started a new process of TLD naming policy to take a "significant step forward on the introduction of new generic top-level domains." This program envisions the availability of many new or already proposed domains, as well a new application and implementation process.

On October 1, 2008, ICANN issued Breach Notices against Joker and Beijing Innovative Linkage Technology Ltd. after further researching reports and complaints issued by KnujOn. These notices gave the Registrars 15 days to fix their Whois investigation efforts.

In 2010, ICANN approved a major review of its policies with respect to accountability, transparency, and public participation by the Berkman Center for Internet and Society at Harvard University. This external review was in support of the work of ICANN's Accountability and Transparency Review team.

On February 3, 2011, ICANN announced that it had distributed the last batch of its remaining IPv4 addresses to the world’s five Regional Internet Registries, the organizations that manage IP addresses in different regions. These Registries will begin assigning the final IPv4 addresses within their regions until they run out completely, which could come as soon as early 2012.

On June 20, 2011 the ICANN board voted to end most restrictions on the names of generic top-level domains (gTLD). Companies and organizations will be able to choose essentially arbitrary top level Internet domain names. The use of non-Latin characters (such as Cyrillic, Arabic, Chinese, etc.) will also be allowed in gTLDs. ICANN will begin accepting applications for new gTLDS on January 12, 2012. The initial price to apply for a new gTLD will be $185,000. The renewal or the annual fee of the domain will further be $25,000. It is anticipated that many corporations will apply for gTLDs based on their brands. ICANN expects that the first batch of new gTLDs will be operational by the end of 2012. ICANN expects the new rules to significantly change the face of the Internet. Peter Thrush, chairman of ICANN's board of directors stated after the vote: "Today's decision will usher in a new Internet age. We have provided a platform for the next generation of creativity and inspiration. Unless there is a good reason to restrain it, innovation should be allowed to run free."