Author name: InfoJustice Eds.

This post was originally published on CircleID by Kathy Kleiman To the ICANN Community, Today, I share a warning about serious changes to the Community Priority Evaluation (CPE) of the New gTLD Applicant Guidebook. They are not driven by public comment, but by a few voices within the SubPro Implementation Review Team—and they are very likely to lead to disastrous misappropriation of well-known community names, including those of Tribes, Indigenous Peoples and NGOs around the world. The reason why is that we (the ICANN Community) envisioned.CHEROKEE for the Cherokee Nation and other tribes, peoples and NGOs, not a group that loves their Grand Cherokee and Jeep Cherokee cars and jeeps. But the policy written by the SubPro PDP Working Group (2016-2020) and accepted by the GNSO Council and ICANN Board recently was deeply changed—and replaced with a scoring system that eliminates the ability of well-known communities to stop unrelated groups, or a fraction of their community, or a group completely opposed to them from using the same name as a new gTLD, provided the applicant has some semblance of internal organization and activity. This change will result in the misappropriation of well-known community names and great harm that we never intended when we wrote the policy. The Subsequent Procedures PDP Working Group (meeting 2016-2020) was fairly balanced in its recommendations for both the applicant and communities that might oppose the CPE application. I share some of the language showing the independence of the Community Experts on the CPE panel to research and other communities and tribes to send comments and letters of opposition and raise concerns—all to be taken into account in the CPE evaluation. Final Report, 2020. Unfortunately and very recently, a few members of the SubPro Implementation Review Team (“IRT”), a group charged with implementing policy, not rewriting it, made change after change to the language, terms and scoring of the Community Priority Evaluation (“CPE”) rules. In April, they stripped out carefully negotiated policies and balances to create an unfair advance for applicants—including by new rules telling the CPE Panelists to greatly limit the use their expertise and independent research skills and not to weigh heavily external opposition and comments they may receive. The changes are buried in Module 4: Contention Set Resolution, 4.4 Community Priority Evaluation, pages 133-150, of the final draft of the Applicant Guidebook now out for public comment. If you look at the new CPE scoring system—called Community Priority Evaluation Criteria (Section 4.4.7, p.139 in draft AGB)—in the edited versions (“redlines” that I share from the IRT on April 14, 2025, and April 30, 2025, and a special redline combining both sets of edits that I created), you will see the hands of the CPE Panelists are newly “tied” and they cannot engage in the research and application of their knowledge that the adopted policy requires. Sadly, under the new changes: And these are just a few examples. Under this new language—newly shared with the community and not arising from public comment—self-identified communities will win CPE. What a prize for the applicant (no auction) and what a tragedy for the peoples, tribes and NGOs of the same name and for far longer than the applicant! Overall, if these rules are adopted, we can predict that letters and comments of heartfelt opposition against CPE applicants will pour into ICANN, only to be systematically ignored by the Panel because of these recent changes to scoring and evaluation criteria. As shared above, this April editing came not from accepted policy, but from a few strong voices on the SubPro IRT. I fear disastrous misappropriation of the well-known names of peoples, tribes and communities if recent changes to CEP text and scoring are not reversed, and the original language is not restored. If you agree, I ask you to write a small set of comments—and share you how to do it below—as it will make a different. Thank you for reading and caring, Kathy Kleiman, Co-Founder ICANN’s Noncommercial Users Constituency To Submit a Comment in ICANN’s Open Proceeding on the Final Draft of the Applicant Guidebook, due July 23rd. Thank you! Footnotes

A unique, expert-led workshop on ethical data scraping was organized by Professor Niva Elkin-Koren and Dr. Maayan Perel and hosted by the Shamgar Center of Digital Law and Innovation, Tel Aviv University. The workshop was made possible by the generous support of the Right to Research in International Copyright Law coalition at the American University, especially Professor Sean Flynn, the Director of the Program on Information Justice and Intellectual Property (PIJIP). An interdisciplinary group of information law experts gathered in Amsterdam’s beautiful Volks hotel on July 2, 2025, to discuss data scraping for research and innovation and its ethical boundaries. The event aligned with the agenda of the Standing Committee on Copyright and Related Rights (SCCR), which promotes public interest strategies, coordinated action, and research, and seeks to inform public policy on legal exceptions and limitations for researchers. Data scraping is an essential research tool for academics and scientists across a wide range of disciplines. It is also critical for training artificial intelligence (AI) models and developing innovative research methodologies. The legal boundaries of data scraping attract considerable attention, not only from academics but also from policymakers, governments, courts, technology companies, and data providers worldwide. The boundaries of ethical data scraping— often dependent on the type of data being scraped, the technologies being used, the purpose of scraping, and the applicable legal framework—remain unclear. Consequently, researchers are left to navigate the potential legal risks and changing technological barriers set by tech giants, such as Cloudflare (recently adopting a permission-based approach to data scraping). As a result, researchers may be deterred from engaging in lawful data scraping, at the cost of not engaging in research that can serve the public interest. Moderated by Dr. Maayan Perel and Professor Eldar Haber, the workshop aimed to bring greater clarity to what ethical data scraping is and should be. The workshop applied practical and technical insights from real-world data scraping, analyzed the legal implications of various transatlantic approaches, and proposed guidelines for promoting ethical data scraping for research and development. To obtain a better understanding of how data scraping models work in practice, participants explored a test case model from Bright Data, an international data scraping company, whose model was also discussed in recent litigation with X and Meta. In a stimulating presentation, Bright Data representatives described their publicly available data scraping technology, elaborated on their ethical policies, and presented their “data for good” initiative, which offers scraping opportunities for researchers as well as other stakeholders. To encourage a productive dialogue between academic and business participants, the discussion followed a “red teaming” approach. Red teaming, a concept we adapted from the cybersecurity realm, essentially aims to help organizations proactively identify weaknesses and strengthen their security posture before actual attacks occur. Applying red-teaming’s critical approach, the participants identified potential legal challenges in Bright Data’s data test case model from various perspectives, including intellectual property law, competition law, privacy law, and data protection law, while also identifying points of legal tension between the US and the EU frameworks. The issues highlighted included the legal application of copyright law to information copying and storage; questions of competition law arising from the dominant market actors’ ability to adjust behavior and match prices; and the scope of privacy protection in personal information that data providers voluntarily make publicly accessible.   Next, insights from Bright Data’s test case were used to draw broader observations about what constitutes ethical data scraping in practice, especially for AI training. Key issues included: The workshop concluded with a broader discussion of potential legal, technical, and institutional strategies to promote ethical data scraping for academic research and technological development. Participants identified the need to distinguish between questions of access to data and questions of the use of the data, as each raises different legal issues. Key suggestions included: Participants: Tanya Aplin, Mor Avisar, Balazs Bodo, Sharon Bar Ziv, Sean Flynn, Eldar Haber, Uri Hacohen, Bernt Hugenholtz, Aline Iramina, Matthias Leistner, Dana Mazia, Maayan Perel, Mando Rachovista, Pamela Samuelson, Martin Senftleben, Ben Sobel, Streffan Verhultz, Amit Zac

In July 2025, Tanuja Garde assumed the role of Director of the Intellectual Property, Government Procurement and Competition Division at the World Trade Organization (WTO). She holds a bachelor’s degree in Chemistry from Duke University and a Juris Doctor from the Washington University in St. Louis School of Law. Before joining the WTO, Garde was Vice President of IP and Information Governance at Boeing (2022–2025) and an advisor to the Industry Trade Advisory Committee on Intellectual Property Rights of the Office of the U.S. Trade Representative (2019–2025). According to the WTO website, the division is “responsible for the WTO’s work in trade-related intellectual property rights (TRIPS), government procurement and competition policy,” and “also maintains and develops lines of communication with other intergovernmental organizations, non-governmental organizations, intellectual property practitioners and the academic community.” Garde succeeds Antony Taubman, who directed the WTO division from 2009 to 2024. Before that, Taubman was Director of Global Intellectual Property Issues at the World Intellectual Property Organization (WIPO) (2002–2009).

Kathryn Kleiman Twenty-five years ago, the then-new Internet Corporation for Assigned Names and Numbers (ICANN) adopted a virtual dispute policy for domain names as its first “consensus policy” and that policy is now due to be reviewed. A comment filed last week by PIJIP professors and fellows Christine Farley, Kathryn Kleiman and Patricia Aufderheide, together with Rebecca Tushnet, Harvard Law School, Michael Karanicolas, Schulich School of Law at Dalhousie University, and Mitch Stoltz, the Electronic Frontier Foundation, laid bare a deep set of concerns about the troubling role of WIPO in writing this report and key recommendations that it made. In this report , WIPO casts itself as the leader of the review of ICANN’s Uniform Dispute Resolution Policy, or “UDRP,” yet as pointed out in the PIJIP comments, the role of WIPO raises key structural concerns as WIPO is the world’s leading provider of domain name dispute services.  Specifically, the comment calls for structural separation: “[In 1999] WIPO became the first ICANN-approved generic top level domain (gTLD) domain name dispute providers, and changed its role from rule-maker to dispute forum. This changes the place of WIPO in the process – as a forum convener, not a rule creator… which means that it is difficult—if not impossible—for WIPO to ask hard questions about core structures and to make comparisons to other existing (NIC Chile) and possible systems.” The comment also questions the lack of comprehensive data analysis in the WIPO-ICA Review – analysis of data that after 25 years is available in abundance:   “After 25 years and over 64,000 UDRP cases brought to WIPO for domain names in the generic top level domain (gTLDs), we expected data: substantive, clear, neutral and statistically valid data. After all, as the first ICANN-approved UDRP dispute provider, WIPO holds this data from the very first UDRP dispute in December 1999 to current ones in June 2025… Yet, this WIPO-ICA Report defaults to the old method of anecdotal evidence: Interviews with the ‘usual suspects’ of well-known people who spend a considerable part of their lives thinking about the UDRP.” Further, the comment raises deep free speech concerns about a recommendation by WIPO to reveal the names of speakers without their consent. It calls for all UDRP Providers in the future to follow the current practices of WIPO (privately adopted) and disclose the names of domain name registrants against whom a UDRP is filed with very limited exceptions (data now redacted due to GDPR and other comprehensive data protection laws).  Our comment strongly disagreed on free speech grounds: “For the cost of a UDRP filing, currently $1500 for a single-panelist at WIPO, the report recommends that rules and ethics protecting privacy, anonymity and free speech be thrown aside. The identity of a person or party speaking, critiquing, or criticizing can be revealed to the complainant, even if the registrant is fully protected under their national laws and rights of free expression and privacy, including the right to anonymity and pseudonymity.” This is only the first volley in UDRP review that is likely to take place over the next few years at ICANN. If you are interested in this material, and especially the fairness and balance of future UDRP rules, and would like to be involved in further discussion, please contact Kathryn Kleiman, Senior Policy Fellow of PIJIP, at Kleiman@american.edu. Links: [1] WIPO-ICA UDRP Review Report of April 2025 can be found here. [2] Our comments can be found here. [3] All comments to this report can be found here.

Teresa Nobre outlines a chilling range of practices by publishers to try to restrict the ability of researchers to conduct computational research. From ‘choice of law’ clauses which seek to circumvent EU law, to increased liability and penalties on libraries which fail to police their users. Nobre suggests a series of urgent measures to tip the balance back in favour of libraries and their users, and ultimately in favour of the right to research. This presentation was delivered at the User Rights meeting in Geneva on 17 June 2025. The full text is available below. The transition to licensing We have transitioned from a sales-based model in printed publications to a licence-based model in digital publications. What happens is that even if you have a fit-for-purpose framework that allows libraries to make certain uses of copyrighted works, they still need to rely on licences to have a first access to the material, and that gives publishers a lot of power in determining what libraries can and cannot do with the licensed materials, even if you have exceptions that allow them to make certain uses. Communia’s research We know that these licences tend to be subject to confidentiality agreements, which means that we don’t know what are the terms of these licences.  Communia is a non-profit based in Brussels, we have been involved in copyright reform for many years, we have been coming to the SCCR for many years, and we decided in February this year, we invited licensing managers, so people that are from the library sector, public library and academic library sector in Europe, we invited them to come to Brussels and we held a Chatham House rules meeting. We also invited the European Commission to attend this meeting and observe this meeting. And this environment where people could not attribute each other was the right environment for licensing managers to come and talk about the issues that they are facing with the licences, so the unfair licensing practices, the unfair terms that they are being subject to. So I will be mentioning some of those practices, and I will start with a very hot topic right now, which is the topic of AI, but also text and data mining for scientific research. Maybe I should also tell you that in addition to inviting librarians to come and talk to us in private, in front of the Commission, we also invited them to share with us in confidence clauses that they considered unfair, clauses that are part of those licensing agreements or licensing offers. Efforts to Circumvent the European TDM Directive Maybe here for those that are not European, I should give you a bit of a legal context of Europe. In Europe, six years ago we passed a new directive that guarantees that researchers in Europe can make text and data mining uses of copyrighted materials for scientific research. So we have a mandatory exception for these research uses. And this mandatory exception is protected against contractual overrides. And what does that mean? It means that if a licence says that you cannot make those uses, you don’t need to follow the licence because the law, the European law, protects you.  And what we realised, and we were very surprised, that publishers were actually concerned about prohibiting these uses in Europe when we have a law that allows these uses and prohibits contractual overrides. But that was indeed the case. So we noticed, and they told us, that since 2023, so place it at the same time where generative AI is raising, suddenly all the contracts are saying library users cannot conduct text and data mining on e-books and e-journals that are available in the libraries.  They cannot conduct any related AI uses with those materials.  ‘Choice of Law’ clauses And surprisingly, what was interesting to see was that, well, they were actually concerned about putting those prohibitions in those contracts, although the law would not allow for those prohibitions, because they could circumvent the EU policy, the EU law, and our contractual overrides prohibition by selecting a law that’s outside of Europe. So we know that ‘choice of law’ is typically a clause that the parties need to negotiate and takes time to negotiate. Everyone wants to choose their own law. But in this case, by choosing a law that’s not the national law where the library is located, meaning that’s not the EU law which would protect these uses against contractual overrides, they are able to circumvent basically the EU law and the prohibition of contractual overrides. And that’s enough. So imagine all of the work that we have done throughout the years to have exceptions in place, exceptions that are protected against contractual overrides, is simply circumvented by a choice of law clause. I’m going to give you an example of what prohibition of AI uses in these licences means. And, you know, there’s different ones. And you can see in our report, we gave some examples of it. Prohibition of AI-enabled browsers But publishers go as far as prohibiting the use of browsers with connected AI functionality. People, nowadays, there’s no browsers that do not use AI.  And publishers are prohibiting the library users from using browsers with AI functionality. This is how far it goes. We saw different variations of this. For instance, you see one that’s very simple, straightforward. You cannot conduct text and data mining, which is exactly what the EU law allows you to do. And when it comes to the choice of law, I think typically what we are seeing is that they are choosing U.S. law, maybe because the U.S. law right now, it’s not very clear if it allows these sort of uses or not. If it’s a UK publisher, they will select the U.K. law, which also doesn’t permit as many text and data mining uses as the EU law. So this is the first, let me say, the first category of obstacles and really