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War of words over .jobs “breach” claims

Kevin Murphy, May 3, 2011, 11:04:19 (UTC), Domain Registries

Employ Media and ICANN have come to blows again over ICANN’s threat to shut down the .jobs registry for allegedly selling domain names in breach of its Charter.

Both parties are currently talking through their outside counsel, and the possibility of litigation has raised its head in public for the first time.

In the latest set of correspondence published by ICANN, Employ Media sharply (and ironically) criticized ICANN’s decision to publish an earlier set of correspondence on its web site.

The earlier email exchange, which I blogged about here, revealed that ICANN had asked the company to amend its Charter.

Two days later, Employ Media’s lawyers wrote to ICANN’s lawyers to express disappointment with the decision to post these emails, questioning ICANN’s commitment to good faith negotiations.

In light of this apparent bad faith action on ICANN’s part, Employ Media is questioning whether any hope remains for a full and fair exchange of ideas regarding a resolution of its dispute with ICANN.

[ICANN has] substantially hindered Employ Media’s ability to engage in productive and honest negotiations: all future communications will necessarily be more guarded and less open, given the expectation that they will be published to a larger audience

ICANN and Employ Media are currently in a “cooperative engagement” process – a less formal way to resolve their dispute than heading to an arbitration forum or court.

ICANN claims the registry is breaking its Charter commitments to the human resources industry by allocating tens of thousands of .jobs domain names to the Universe.jobs project, which is run by a partner, the DirectEmployers Association.

Independent jobs boards, represented by the the .JOBS Charter Compliance Coalition, believe that Universe.jobs is unfair and not compliant with Employ Media’s own policies.

Employ Media’s latest letter (pdf), which it demanded ICANN publish, drops hints about some of the behind-the-scenes talks (with my emphasis):

Had we known that any part of our communication was to be published, we would have certainly memorialized, in writing, your statements to us that ICANN very much wants to avoid an arbitration over this dispute, and that ICANN was therefore willing to agree to a process for approving a Charter amendment in order to do so. We would also have memorialized our positions, including our position that a Charter amendment is neither necessary nor desirable, but that we were considering acceding to ICANN’s request solely in the hopes of avoiding arbitration

ICANN’s lawyers’ response (pdf), sent April 26, says ICANN was merely fulfilling its transparency obligations by informing the community about the extension of the talks deadline.

They also said that the Employ Media should stop pretending to be surprised that ICANN issued the breach notice and is now asking for a Charter amendment.

ICANN further accused the registry’s lawyers of legal “posturing” which was “seemingly geared solely towards use in future litigation”.

Employ Media was due to deliver a proposed amendment to its Charter by yesterday. ICANN has said it will not take any further actions based on its breach notice until May 6.

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