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.xxx has its ICANN fees slashed and adopts URS

Kevin Murphy, February 8, 2017, Domain Registries

ICM Registry is to see its .xxx ICANN registry fees hugely reduced in contractual amendments approved by ICANN last week.

The changes also mean that .xxx will now become subject to the Uniform Rapid Suspension anti-cybersquatting mechanism, despite it being a pre-2012 gTLD.

.xxx becomes the latest pre-2012 gTLD to move to a contract more closely aligned with the standard Registry Agreement from the new gTLD program.

Under the complex new deal, its per-transaction fee could be reduced from $2 to $0.25 by mid-2018.

Its quarterly fixed fee will go up from $2,500 to $6,250.

ICM has also agreed to take on many aspects of the standard new gTLD Registry Agreement, the most controversial of which is the URS.

The domainer group the Internet Commerce Association was fiercely critical of this addition to the contract, as it has been when URS was brought to .jobs, .travel, .cat, .pro and .mobi.

ICA is largely concerned that URS will also be pushed upon Verisign’s .net, which is up for contract renewal this year, and eventually .com.

ICA worried ICANN will force URS on .net

Kevin Murphy, January 5, 2017, Domain Registries

The Internet Commerce Association has called for a “moratorium” on the Uniform Rapid Suspension policy being added to legacy gTLD contracts, months before Verisign’s .net contract is up for renewal.

In a blog post, ICA counsel Phil Corwin accused ICANN staff of making policy by the back door by compelling pre-2012 registries to adopt URS, despite a lack of ICANN community consensus policy.

In the last few years the registries for .jobs, .travel, .cat, .pro, .xxx and most recently .mobi have agreed to adopt many aspects of the 2012 Registry Agreement, which includes the URS, often in exchange for lower ICANN fees.

Corwin wrote:

the real test of [ICANN’s Global Domains Division’s] illicit strategy of incremental de facto policymaking will come later this year, when the .Net RA comes up for renewal. We have no idea whether Verisign will be seeking any substantial revisions to that RA that would provide GDD staff with substantial leverage to impose URS, nor do we know whether Verisign would be amenable to that tradeoff.

The .net RA is due to expire July 1 this year.

Verisign pays ICANN $0.75 for each .net domain registration, renewal and transfer. If that were to be reduced to the 2012 standard of $0.25, it would save Verisign at least $7.5 million a year.

The URS provides brand owners with a way to suspend trademark-infringing domains in clear-cut cases. It’s based on UDRP but is faster and cheaper and does not allow the brand owner to seize ownership of the domains.

ICA represents large domain speculators, most of which have their investments tied up in .com and .net domains. It’s complained about the addition of URS to other gTLDs but the complaints have largely fallen on deaf ears.

ICANN has said that it does not force URS on anyone, but that it takes the base new gTLD program RA as its starting point for bilateral negotiations with registries whose contracts are up for renewal.

URS comes to .mobi as ICANN offers Afilias lower fees

Kevin Murphy, December 27, 2016, Domain Registries

Afilias’ .mobi is to become the latest of the pre-2012 gTLDs to agree to adopt the Uniform Rapid Suspension policy in exchange for lower ICANN fees.

Its Registry Agreement is up for renewal, and Afilias and ICANN have come to similar terms to .jobs, .travel, .cat, .pro and .xxx.

Afilias has agreed to take on many of the provisions of the standard new gTLD RA that originally did not apply to gTLDs approved in the 2000 and 2003 rounds, including the URS.

In exchange, its fixed registry fees will go down from $50,000 a year to $25,000 a year and the original price-linked variable fee of $0.15 to $0.75 per transaction will be replaced with the industry standard $0.25.

It’s peanuts really, given that .mobi still has about 690,000 domains, but Afilias is getting other concessions too.

Notably, the ludicrous mirage that .mobi was a “Sponsored” gTLD serving a specific restricted community (users of mobile telephones, really) rather than an obvious gaming of the 2003-round application rules, looks like it’s set to evaporate.

Appendix S to the current RA is not being carried over, ICANN said, so .mobi will not become a “Community” gTLD, with all the attendant restrictions that would have entailed.

Instead, Afilias has simply agreed to the absolute basic set of Public Interest Commitments that apply to all 2012 new gTLDs. Text that would have committed the registry to abide by the promises made in its gTLD application have been removed.

But the change likely to get the most hackles up is the inclusion of URS in the proposed new contract.

URS is an anti-cybserquatting measure that enables trademark owners to shut down infringing domains, without taking ownership, more quickly and cheaply than the UDRP.

It’s obligatory for all 2012-round gTLDs, and five of the pre-2012 registries have also agreed to adopt it during their contract renewal talks with ICANN.

Most recently, ICM Registry agreed to URS in exchange for much deeper cuts in its ICANN fees in .xxx.

In recent days, ICANN published its report into the public comments on the .xxx renewal, summarizing some predictably irate feedback.

Domainer group the Internet Commerce Association, which is concerned that URS will one day be forced upon .com and .net, had a .xxx comment that seems particularly pertinent to the .mobi news:

Given the history of flimsy and self-serving justifications by [Global Domains Division] staff and the ICANN Board for similar actions taken in 2015, we are under no illusion that this comment letter will likely be successful in effecting removal of the URS and other new gTLD RA provisions from the revised .XXX RA. Nonetheless, we strenuously object to this GDD action that intrudes upon and debases ICANN’s legitimate policymaking process, and urge the GDD and Board to reconsider their positions, and to ensure that GDD staff ceases and desists from taking similar action in the context of future RA renewals and revisions until the RPM Review WG renders the community’s judgment as to whether the URS and other new gTLD RPMs should become Consensus Policy and such recommendation is reviewed by GNSO Council and the ICANN Board.

The Intellectual Property Constituency of the GNSO, conversely, broadly welcomed the addition of more rights protection mechanisms to .xxx.

The Non-Commercial Stakeholder Group, meanwhile, expressed concern that whenever ICANN negotiates a non-consensus policy into a contract it negates and discourages all the work done by the volunteer community.

You can read the summary of the .xxx comments, along with ICANN staff’s reasons for ignoring them, here (pdf).

The .mobi proposed amendments are also now open for public comment.

Any lawyers wishing to rack up a few billable hours railing against a fait accompli can do so here.

.xxx to get lower ICANN fees, accept the URS

Kevin Murphy, October 14, 2016, Domain Registries

ICM Registry has negotiated lower ICANN transaction fees as part of a broad amendment to its Registry Agreement that also includes new trademark protection measures.

The company’s uniquely high $2 per-transaction fee could be reduced to the industry standard $0.25 by mid-2018.

As part of the renegotiated contract, ICM has also agreed to impose the Uniform Rapid Suspension policy on its registrants.

URS is the faster, cheaper version of UDRP that allows trademark owners to have domain names suspended in more clear-cut cases of cybersquatting.

The $2 fee was demanded by ICANN when ICM first signed its RA in 2011.

At the time, ICANN said the higher fee, which had doubled from a 2010 draft of the contract, was to “account for anticipated risks and compliance activities”.

The organization seemed to have bought into the fears that .xxx would lead to widespread misuse — something that has noticeably failed to materialize — and was expecting higher legal costs as a result.

The companion TLDs .adult, .porn and .sex, all also managed by ICM, only pay $0.25 per transaction.

The overall effects on registrants, ICANN and ICM will likely be relatively trivial.

With .xxx holding at roughly 170,000 domains and a minimal amount of inter-registrar transfer activity, ICM seems to be paying ICANN under $400,000 a year in transaction fees at the moment.

Its registry fee is usually $62, though a substantial number of domains have been sold at lower promotional pricing, so the cost to registrants is not likely to change a great deal.

The reduction to $0.25 would have to be carried out in stages, with the earliest coming this quarter, and be reliant on ICM keeping a clean sheet with regards contract compliance.

Under the deal, ICM has agreed to adopt many of the provisions of the standard Registry Agreement for 2012-round gTLDs.

One of those is the URS, which may cause consternation among domainers fearful that the rights protection mechanism may one day also find its way into the .com registry contract.

ICM has also agreed to implement its existing policies on, for example, child abuse material prevention, into the contract as Public Interest Commitments.

The RA amendment is currently open for public comment at ICANN.

Cruz-Duffy bill would put brakes on IANA transition

Kevin Murphy, June 9, 2016, Domain Policy

America’s continuing unique oversight role in the DNS root management system, fuck yeah!

That’s basically the takeaway from a new bit of proposed US legislation, put forward by Sen. Ted Cruz and Rep. Sean Duffy in both houses of Congress yesterday.

The two Republican Congressmen have proposed the inappropriately named Protecting Internet Freedom Act, which is specifically designed to scupper the IANA transition at the eleventh hour.

PIFA would prevent the National Telecommunications and Information Administration from backing away from its role in the DNS root management triumvirate.

It’s supported, ironically, by a bunch of small-government right-wing think tanks and lobby groups.

If the bill is enacted, NTIA would need a further act of Congress in order to cancel or allow to expire its current IANA functions contract with ICANN

The bill (pdf) reads:

The Assistant Secretary of Commerce for Communications and Information may not allow the responsibility of the National Telecommunications and Information Administration with respect to the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the performance of the Internet Assigned Numbers Authority functions, to terminate, lapse, expire, be cancelled, or otherwise cease to be in effect unless a Federal statute enacted after the date of enactment of this Act expressly grants the Assistant Secretary such authority.

The bill also seeks to ensure that the US government has “sole ownership” of the .gov and .mil TLDs “in perpetuity”.

These ownership rights are not and have never been in question; the inclusion of this language in the bill looks like a cheap attempt to stir up Congresspeople’s basest jingoistic tendencies.

A Cruz press release said the IANA transition “will allow over 160 foreign governments to have increased influence over the management and operation of the Internet.”

Duffy added:

President Obama wants to hand over the keys to the Internet to countries like China and Russia. This is reckless and absurd. The governments of these countries do not value free speech. In fact, they censor the Internet and routinely repress and punish political dissidents. They cannot be trusted with something as fundamental to free speech as a free and open Internet.

It’s unfiltered scaremongering.

No country — not China, Russia, the US nor any other government — gets increased powers under the IANA transition proposal, which was painstakingly crafted by, and is now supported by, pretty much all community stakeholders over two years.

In fact, governmental power is significantly curtailed under the proposal.

Post-transition, the Governmental Advisory Committee’s current voting practice, which essentially requires unanimity, would be enshrined in ICANN’s bylaws.

If the GAC came to ICANN with advice that did not have consensus — that is, some governments formally objected to it — ICANN would be able to reject it much more easily than it can today.

The one area where the GAC does get a new role is in the so-called “Empowered Community”, a new concept that will enter the ICANN bylaws post-transition.

The Empowered Community would be a non-profit legal entity formed by the ICANN community in the exceptional event that the ICANN board goes rogue and starts doing really egregious stuff that nobody wants — for example, introducing Draconian policy regulating freedom of speech.

The EC would have the power to kick out the ICANN board members of its choice, reject the ICANN budget, throw out proposed bylaws amendments and so on. As far as ICANN is concerned, the EC would be God.

Its members, or “Decisional Participants” would be the GNSO, the ccNSO, the ALAC, the ASO and the GAC.

The fact that the GAC has a seat at the EC table is the straw that Cruz, Duffy and co grasp at when they talk about governments getting increased power in a post-transition ICANN.

But the GAC’s voice is equal to those of the other four participants, and the GAC is not allowed a vote on matters stemming from ICANN’s implementation of consensus GAC advice.

In other words, the only way Cruz’s boogeymen governments would ever get to push through a censorship policy would be if that policy was also supported by all the other governments or by the majority of the diverse, multi-stakeholder ICANN community.

The arguments of Cruz and Duffy are red herrings, in other words.

Not only that, but the US record on attempted censorship of the DNS root is hardly exemplary.

While it’s generally been quietly hands-off for the majority of the time ICANN has had its hand on the rudder, there was a notable exception.

The Bush-era NTIA, following a letter-writing campaign by the religious right — Bible-thumping Cruz’s base — exerted pressure on ICANN to reject the proposed porn-only .xxx gTLD.

So who’s the real threat here, Red China or Ted Cruz, the man who tried to ban the sale of dildos in Texas?

The Protecting Internet Freedom Act is obviously still just a bill, but Republicans still control both houses of Congress so it’s not impossible that the tens of thousands of hours the ICANN community has put into the IANA transition could be sacrificed on the altar of embarrassing the President, who is probably Kenyan anyway.