Frager Factor

Thursday, December 20, 2012

Domaining's Most Fascinating People 2012: Phil Corwin, Counsel, Internet Commerce Association (ICA)




Photo: Via DomainPulse
Just days after Black Friday and Cyber Monday, the U.S. Department of Commerce provided domainers with an advance holiday present — a little “Chanukah gelt” as we say at the Frager Factor — by freezing VeriSign’s wholesale price of .com domains at $7.85 for the next six-years in its new registry agreement with ICANN. If domainers have anyone to thank for this gift that will keep on giving — millions of dollars in registration fee savings for the largest portfolio owners —their thanks should go to Philip S. Corwin, a founder and Counsel of the Internet Commerce Association (ICA) and one of our Most Fascinating People in Domaining for 2012.

“Phil has become the voice of the people,” says Brandon Abbey, President and Managing Director of Escrow.com. “His tireless efforts have provided huge benefits to the domain community, not only monetarily but regarding intellectual property rights as well.”

Telepathy’s Nate Cohen states it simply: “Phil is an unsung hero. So few domainers are aware of the many threats he has beaten back to keep our businesses viable.”

Had it not been for Phil’s forceful and relentless advocacy, both in writing and lobbying, on behalf of domainers, VeriSign would have been allowed to increase wholesale prices absent any justification up to 7% per year in four out of the contract’s six years, which would have resulted in a price rise from $7.85 to $10.29 by 2018.

Phil has become a prolific writer this year on issues of importance to domain holders on the ICA blog, as well as representing domainers both at the ICANN level through the whole new gTLD process and also in Washington,” adds Mike Berkens, industry blogger at TheDomains.com, proprietor of MostWantedDomains.com, and long-time ICA supporter and booster”. “I do in my heart believe his voice was heard when Commerce took away Verisign's rate increase.”

Like so many people who work behind the scenes for the benefit of others, Phil doesn’t claim sole credit for this victory.

“We are under no illusions that our letter to the Departments of Commerce and Justice was the spur to their extended review of the Agreement’s pricing provisions,” Phil wrote on the ICA Blog the day of the announcement. “However, we do hope that the compelling arguments contained in our letter played some role in VeriSign’s decision to accept this deal rather than have discussions go into overtime and risk other parties chiming in for the type of price restrictions and rollbacks we advocated.”

Because ICA didn’t win that $2 rollback to $5.86, the same price as in the .net registry, Phil wrote that ICA was only “taking half a victory lap over this welcome news.” As Phil suggests, while Verisign didn’t get everything they wanted, they may have got more than they deserve. “Here’s a company that operates two different registries — .com and .net — using the same technical facilities and same employees,” he told us. “So why is one wholesale price $2 higher than the other?”

We may never know the answer. The contract does allow Verisign to request a price increase if warranted by economic necessity. “Commerce’s review of price increases shouldn’t happen in the shadows or behind closed doors,” Phil says. “It ought to be a transparent process, not a fait accompli. The granting of a price increase isn’t when the public should first hear about it.”

To be sure that any action on an increase request doesn’t catch domainers by surprise, Phil says he’s going to follow-up thanking Commerce for imposing the price freeze and asking for the Department’s assurance of an open process with public notification and comment should VeriSign request a price increase to cover cybersecurity needs or new ICANN consensus policies.



PROTECTING DOMAINERS RIGHTS
But while the price freeze has received plenty of attention since it was announced November 30, Phil does not see this as the crowning achievement of 2012.

“The price increase savings that you get to keep in your pocket is nice,” he says, “but more important is whether you’re going to get to keep your domains.” 

Phil’s referring to ICA’s ongoing battle against trademark interests — brand marketers of all sizes and their representative trade group, the International Trademark Association (INTA), as well as the UN-affiliated World Intellectual Property Organization (WIPO) — who he says “have been fighting for a dispute resolution process where you’re presumed guilty whenever they decide to bring an infringement action against you. The most important work I’ve been doing with ICA the past few years has been in the area of rights protection mechanisms (RPMs) for domain registrants; whether domains are going to have some type of roughly equivalent legal protections as trademarks, or if domains are always going to lose to trademarks. This is important stuff.”

You bet it is.

“For a company like Sedo that operates across many borders, it is important that the rules governing online business evolve with an understanding and appreciation of business needs and the fundamental rights of consumers” says Jeremiah Johnston, Sedo General Counsel. “With an advocate like Phil Corwin working the meetings at ICANN or watching for troubling signs from Washington, we can focus on our business confident that the interests of our customers and industry have a voice in the room.”



Right now Phil and ICA are working hard to keep the forthcoming Uniform Rapid Suspension (URS) rights protection mechanism (RPM) for new gTLDs from being totally one-sided in favor of trademark owners. It’s been a tough battle.

“We don’t condone infringement and we have no complaint with trademark owners protecting their rights,” explains Phil. “The problem is that Uniform Rapid Suspension was sold to ICANN as a faster, cheaper, process to take down clearly infringing domains — those black and white cases where you know it when you see it. It was sold as a very narrow supplement to the UDRP (Uniform Domain Name Dispute Resolution, the current rights protection mechanism), which involves many shades of gray and where you need to hear arguments on both sides. What’s happened is some trademark interests have tried to turn URS into a $300 alternative to UDRP ($1,800 minimum filing fee) weighted heavily in favor of trademark owners.”

One example of imbalance in the URS process is the registrant’s 14-day response period that Phil says the ICANN Board reduced from the previously agreed upon three weeks — an action the Board took under pressure from ICANN’s Governmental Advisory Committee (GAC), which was itself was heavily lobbied by trademark interests to put that pressure on the ICANN board. “ICANN erred in this case by not telling them the process was over and that the issue was decided,” says Phil.
But it gets worse.

“Even though the system is already biased in trademark owners’ favor, WIPO then proposed that when a registrant doesn’t respond in 14 days, there should be no review of the complaint at all,” Phil continued. “The trademark owner has had months to prepare their complaint, and you’ve got two weeks to respond. How is that fair? What if someone files a complaint on Christmas Eve alleging that your domain infringes their rights? It’s very difficult to understand your rights and the process, and find expert counsel, to respond in that short time.”

“The process is supposed to provide for reasonable review,” maintains Phil. “If it takes more than 10 or 15 minutes, it’s not a black and white case, and doesn’t belong in URS. It should go to UDRP or to court. Yet WIPO has the temerity to propose there should be no review of the complaint at all.”

To fight this proposal, Phil represented ICA on the joint working group made up of members of ICANN’s Business and Intellectual Property Constituencies that was convened to review it. “The working group, I’m happy to say, rejected the WIPO position,” Phil says. “They agreed that even when there’s no response by a registrant, there’s got to be some type of substantive review by an expert. You can’t just suspend a domain and shut down somebody’s business without any review on the merits.”


Photo: DnJournal
As Phil reported on the ICA Blog earlier this month even with the support of the working group, this issue was still in play at the time of the ICANN 45 meeting in Toronto in October and remains so today, since the final implementation model for the URS has not yet been fully locked down.

“This is the really important fight in the long term. This may be more important to .com owners than the price freeze,” Phil says. “And while the new RPMs just apply to new gTLDs for now, they could readily be extended to .com and other legacy gTLDs in the next few years through several routes.”

“While some ICA members have a bigger stake in certain policy issues than others, I have always approached these issues from the viewpoint of safeguarding the same rights for all members regardless of size,” he says. “Even a modest portfolio owner benefits from the .com price freeze and for assuring adequate registrant due process in the URS.”

That commonality of interests and benefits across the industry is always top of mind for Phil. “Everybody in the Internet field has the same challenge in articulating new business models and policy paradigms, and we try to analogize to what policymakers already understand as much as possible.”

Phil says there are four definable aspects in his approach to serving the industry.

The first is try to know as much as possible about the legal and technical minutiae of an issue. “You’d be amazed how many advocates, even for big interests, rely on pre-canned talking points and lack a real understanding of what they are discussing. Truly understanding the issues gives you credibility and bargaining leverage.”

Second, he says, is to make all tactical decisions within a strategic framework, so that the resolution of any particular issue is a building block toward the ultimate goal.
Third is to be consistent in policy arguments and clear in communications.
And the fourth is to “always reach out for allies, because no one gets anything accomplished in the policy sphere on their own.”


FROM NEWBIE TO INDUSTRY-LEADING ADVOCATE IN SIX YEARS

Compared to other leaders in domaining, Phil has been involved in the industry a relatively short time.

In 2005, he was hired by Pool.com to lobby in conjunction with the Coalition for Internet Transparency (CFIT) against VeriSign’s then-pending ICANN .com registry contract. “I was involved in getting the only oversight hearing that Congress ever held on the .com settlement. But until then, I didn’t know domainers existed.” 

But domainers and their attorneys came to that hearing in 2006. In talking with them, Phil learned some of the legal challenges they were facing. “They told me ‘either government doesn’t understand our business or they think we’re all cybersquatters,’” Phil recalls. “I told them ‘you need to get organized’ and they said ‘you’re right.’”

ICA launched officially in September 2006. “One month later I went to the TRAFFIC conference in Florida and met Frank Schilling, Tim Schumacher of Sedo, and other key industry players. Companies and individuals made a commitment to fund ICA, and get it off the ground. And we’re still here six years later.”

Though he’s been involved in domaining for only six years, Phil was early to see the potential of the Internet.

“I had been with the American Bankers Association (as Director and Counsel of Operations, Retail Banking, and Risk Management) for a decade, and by 1996 people were debating whether the Internet was going to be a short-lived fad,” Phil says. “I saw that it was going to be a transformative technology and was going to be around a long time.”

“I’m a guy who understands the rule book,” he adds. “And I could see that many of the old rules were not going to make any sense or weren’t going to be enforceable. I wanted to be involved in writing the new rule book. So I left ABA because of the Internet.”

Phil’s earliest Internet-related work included representing one of the first digital cash companies, a biometric authentication firm on Federal e-signature legislation, as well as mp3.com, Kazaa and a digital radio startup on digital copyright issues. Today, in addition to his work with ICA, Phil is Founding Principal of Virtualaw LLC and Of Counsel to the intellectual property law firm of Greenberg & Lieberman in Washington, D.C.

“I don’t understand the concept of weekends or 40-hour weeks,” Phil says. He estimates that he’s logged between 150,000 and 200,000 air miles since first attending ICANN meetings in late 2006. “Unfortunately the meeting schedule is so intensive that there is not a great deal of time for seeing the sights or absorbing the local culture, but I get out when I can.”

But the meetings do provide time for valuable networking. “There is an ICANN ‘community’ and I have made friends from around the world through my participation,” Phil says. “It reinforces the notion that people are much more alike than different regardless of where they hail from and what their home culture is. And, of course, ICANN is a self-selecting group as nearly everyone involved is devoted to preserving the Internet as a means of free communication and open commerce.”


Phil estimates that he’s logged between 150,000 and 200,000 air miles since first attending ICANN meetings in late 2006. “Unfortunately the meeting schedule is so intensive that there is not a great deal of time for seeing the sights or absorbing the local culture, but I get out when I can.”


THERE’S MORE TO LIFE THAN WORK OR MONEY

“You work 24/7 when you have to, and you take time off when you can,” says Phil of the demands of working in the Internet industry.

Do financial rewards make it all worthwhile?

“I enjoy, and can’t get by without, making money, but that’s never been my number one motivator. I enjoy the issues and the challenge.”

When he does have free time, he works out with weights, does Pilates or goes biking to stay in shape. To relax, Phil says he likes to listen to jazz (“while enjoying a good bottle of wine or single malt scotch”), catch up on DVR’d series (“current favorites: Boardwalk Empire, Homeland and Breaking Bad) and news/public affairs shows, and try to read a good novel or other challenging book. He’s currently in the middle of Jim Holt’s Why Does the World Exist, which Phil says “tackles the ultimate existential question of why is there something rather than nothing.”

Is there anything he could do without?

“The things I hate most are bigotry and cruelty grounded in prejudice and ignorance. And the state I like least is boredom, though that is seldom an issue.”


MORE TO DO, BUT MORE SUPPORT NEEDED
Corwin Keeps Audiences Informed at T.R.A.F.F.I.C
Photo: DNJournal.com
The job is never done. For 2013, Phil expects to devote significant time to the continuing fight for domainers’ legal protections. And, he says, “I don’t think you’ve heard the last of the arguments over TLD policy.”

As to the new gTLDs themselves, Phil says “some domainers think they’ll be a bust, other people think they’ll be a whole new avenue for new and innovative enterprises. Some domain investors think .com will always be it. Then you’ve got Frank Schilling who thinks that being a registry operator for new gTLDs is something worth doing. In the end, the market will decide.”

And ICA and Phil will be there working to be sure the market works well and fairly for domainers.

But there’s a problem that can’t be overlooked.

“ICA does not get the full support it deserves from the industry,” says Phil. “I’m very thankful we have a core group of great members who have stayed with us and support the things we do, contributing enough to keep the lobbying effort going, but we could be doing a lot more.”

Those core members agree, saying that more people should be paying for the benefits they receive. “I've been trying to get certain people to join ICA for years, and especially now that the association has saved their companies millions of dollars in renewal fees over the next six years,” says Mike Berkens, President of Worldwide Media, Inc. “I think anyone who sees themselves as a leader in the domain industry should step up to the plate and contribute to these efforts that benefit all of us, rather than continue to ride on ICA’s coattails and Phil's hard work.”

Phil easily rattles off a list of the additional efforts that could be possible with participation of more industry players: “With better support, we could hire experts for policy studies, get actively involved in important UDRP and court cases if a domain owner couldn’t afford to mount a meaningful defense, submit amicus briefs in major trademark cases, and develop a better relationship with European policymakers in Brussels as we have already done in Washington.”

“I’m very grateful for the support we get,” Phil says. “But we could be doing a lot more. So I hope this story gives a better sense of what ICA is about and leads to those in the domain sector thanking the companies and individuals who support us — and asking those companies they do business with but who have no involvement with ICA to reconsider that position.”

For being a forceful advocate for our industry, for leading the way in protecting the rights of domain owners, for helping domaining to gain recognition as a legitimate business sector and for winning the legal victories that create an environment in which our creative enterprises can compete and succeed, ICA Counsel Phil Corwin is one of our Most Fascinating People in Domaining for 2012.


To donate to the ICA, drop an email to info_ica@internetcommerce.org


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