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PIR slams brakes on “UDRP for copyright”

Kevin Murphy, February 24, 2017, Domain Policy

Public Interest Registry has “paused” its plan to allow copyright owners to seize .org domains used for piracy.

In a statement last night, PIR said the plans were being shelved in response to publicly expressed concerns.

The Systemic Copyright Infringement Alternative Dispute Resolution Policy was an in-house development, but had made its way into the Domain Name Association’s recently revealed “healthy practices” document, where it known as Copyright ADRP.

The process was to be modeled on UDRP and similarly priced, with Forum providing arbitration services. The key difference was that instead of trademark infringement in the domain, it dealt with copyright infringement on the associated web site.

PIR general counsel Liz Finberg had told us the standard for losing a domain would be “clear and convincing evidence” of “pervasive and systemic copyright infringement”.

Losers would either have their domain suspended or, like UDRP, seized by the complainant.

The system seemed to be tailor-made to give PIR a way to get thepiratebay.org taken down without violating the owner’s due process rights.

But the the announcement of Copyright ADRP drew an angry response from groups representing domain investors and free speech rights.

The Electronic Frontier Foundation said the system would be captured by the music and movie industries, and compared it to the failed Stop Online Piracy Act (SOPA) in the US.

The Internet Commerce Association warned that privatized take-down policies at registries opened the door for ICANN to be circumvented when IP interests don’t get what they want from the multi-stakeholder process.

I understand that ICANN’s Non-Contracted Parties House was on the verge of formally requesting PIR pause the program pending a wider consultation.

Some or all of these concerns appear to have hit home, with PIR issuing the following brief statement last night:

Over the past year, Public Interest Registry has been developing a highly focused policy that addresses systemic, large scale copyright infringement – the ”Systemic Copyright Infringement Alternative Dispute Resolution Policy” or SCDRP.

Given certain concerns that have been recently raised in the public domain, Public Interest Registry is pausing its SCDRP development process to reflect on those concerns and consider forward steps. We will hold any further development of the SCDRP until further notice.

SCDRP was described in general terms in the DNA’s latest Healthy Domains Initiative proposals, but PIR is the only registry to so far publicly express an interest in implementing such a measure.

Copyright ADRP may not be dead yet, but its future does not look bright.

Angry reactions to “UDRP for copyright”

Kevin Murphy, February 10, 2017, Domain Policy

The Electronic Frontier Foundation and Internet Commerce Association are among those expressing initial concern about the introduction of a new “UDRP for copyright” mechanism by the Domain Name Association.

The EFF said the DNA’s new proposals want registries to become “private arbiters of online speech”, while the ICA expressed concern that the proposals could circumvent the usual ICANN policy-making process.

As we reported earlier in the week, the DNA has set out a set of four “healthy practices” (the term “best practices” was deliberately avoided, I’m told) for registries and registrars, under the banner of its Healthy Domains Initiative.

The first three sets of recommendations cover malware, child abuse material and fake pharmacies and are relatively non-controversial.

However, the surprising fourth proposal seeks to give copyright holders a means to suspend or seize control of domain names where they have “clear and convincing evidence” of “pervasive and systemic copyright infringement”.

While the details have yet to be finalized, it appears to be targeted at sites such as The Pirate Bay, which are used for pretty much nothing but copyright infringement.

“This is a terrible proposal,” the EFF’s Jeremy Malcolm and Mitch Stoltz wrote yesterday:

The content that happens to be posted within [a] website or service has nothing to do with the domain name registrar, and frankly, is none of its business. If a website is hosting unlawful content, then it is the website host, not the domain registrar, who needs to take responsibility for that

They added:

it seems too likely that any voluntary, private dispute resolution system paid for by the complaining parties will be captured by copyright holders and become a privatized version of the failed Internet censorship bills SOPA and PIPA

Those are references to two proposed US laws, the Stop Online Piracy Act and Protect IP Act, that attracted lots of criticism and never saw the light of day.

The ICA, in a separate post on its own site, expressed concerns that private initiatives such as the HDI could give trademark holders another way to route around ICANN policies they do not like.

Noting that trademark protection mechanisms are already under review in a ICANN working group, ICA counsel Phil Corwin wrote:

What if the final consensus decision of that WG is that the URS remedy should remain domain suspension and not transfer, or that the UDRP standard of “bad faith registration and use” should remain as is? Are TM owners then free to develop their own “best practices” that include domain transfer via URS, or a bad faith registration or use standard? What’s the point of going through a multi-year exercise if those dissatisfied with the result can seek stiffer private policies? Just how many bites at the apple should trademark holders get

Both ICA and EFF expressed concern that the new DNA proposals seemed to have been developed without the broad input of members.

Stoltz and Malcolm wrote:

In any purported effort to develop a set of community-based principles, a failure to proactively reach out to affected stakeholders, especially if they have already expressed interest, exposes the effort as a sham.

Corwin wrote:

ICA had no advance knowledge of the details of HDI and no opportunity to provide substantive input. So our fingerprints are nowhere on it.

The Copyright ADRP proposal appears to be the brainchild of Public Interest Registry, the .org registry.

PIR general counsel Liz Finberg told DI earlier this week that PIR is working with arbitration provider Forum to finalize the rules of the process and hopes to implement it in .org before the end of the first quarter.

No other registry has publicly stated similar plans to my knowledge.

The HDI recommendations are completely voluntary and registries/ars are free to adopt them wholly, partially or not at all. They are not ICANN policies.

.africa to finally go live after judge denies injunction

Kevin Murphy, February 10, 2017, Domain Policy

A Los Angeles court has rejected a demand for a preliminary injunction preventing ICANN delegating .africa, meaning the new gTLD can go live soon.

Judge Howard Halm ruled February 3, in documents published last night, that the “covenant not to sue” signed by every new gTLD applicant is enforceable and that Africans are being harmed as long as .africa is stuck in legal limbo.

The ruling comes two and a half years after ZA Central Registry, the successful of the two .africa applicants, signed its Registry Agreement with ICANN.

Rival applicant DotConnectAfrica, rejected because it has no African government support, is suing ICANN for fraud, alleging that it failed to follow its own rules and unfairly favored ZACR from the outset.

Unfortunately, the ruling does not address the merits of these claims. It merely says that DCA is unlikely to win its suit due to the covenant it signed.

Halm based his decision on the precedent in Ruby Glen v ICANN, the Donuts lawsuit that seeks to stop ICANN awarding .web to Verisign. The judge in that case ruled last November that Donuts signed away its right to sue.

An earlier judge in the DCA v ICANN case had ruled — based at least in part on a misunderstanding of the facts — that the covenant was unenforceable, but that decision now seems to have been brushed aside.

Halm was not convinced that DCA would suffer irreparable harm if ZACR got given .africa, writing:

The .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation… Further, it appears that any interim harm to DCA can be remedied by monetary damages

He balanced this against the harm of NOT delegating .africa:

The public interest also weighs in favor of denying the injunction because the delay in the delegation of the .Africa gTLD is depriving the people of Africa of having their own unique gTLD.

So what now?

ICANN said in a statement: “In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation.”

As of this morning, ZACR’s .africa bid is officially still marked as “On Hold” by ICANN, though this is likely to change shortly.

Assuming ZACR has already completed pre-delegation testing, delegation itself could be less than a week away.

If DCA’s record is anything to go by, it seems unlikely that this latest setback will be enough to get it to abandon its cause.

Its usual MO whenever it receives an adverse decision or criticism is to double down and start screaming about conspiracies.

While the injunction was denied, the lawsuit itself has not been thrown out, so there’s still plenty of time for more of that.

You can read Halm’s ruling here (pdf).

Antitrust feds probing Verisign’s .web deal

Kevin Murphy, February 10, 2017, Domain Policy

US antitrust authorities are investigating Verisign over its anticipated operation of the .web gTLD.

The probe was disclosed by company CEO Jim Bidzos in yesterday’s fourth-quarter earnings call. He said:

On January 18, 2017, the company received a Civil Investigative Demand from the Antitrust Division of the US Department of Justice, requesting certain information related to Verisign’s potential operations of the .web TLD. The CID is not directed at Verisign’s existing registry agreements.

He did not comment further, beyond describing it as “kind of like a subpoena”.

Verisign acquired the rights to run .web at an ICANN last-resort auction last July, agreeing to pay $135 million.

Rather than applying for the gTLD itself, it secretly bankrolled shell company Nu Dot Co, which intends to transfer its .web contract to Verisign after it is signed.

ICANN is being sued by rival applicant Donuts, which claims NDC should have been banned from the auction. Afilias, the auction runner up, is also challenging the outcome.

But this new DoJ investigation, if we take Bidzos’ words at face value, appears to focus on what Verisign plans to do with .web once it is live.

It’s the view of many that .web would be the new gTLD best positioned as an alternative to .com, which makes Verisign hundreds of millions of dollars a year.

It’s my view that it would make perfect sense for Verisign to flush the $135 million and bury .web, rather than have a viable competitor on the market.

Verisign has repeatedly said that intends to “grow and widely distribute .web”, words Bidzos repeated last night.

The investigation is likely into whether Verisign wants to actually raise .web, or strangle it in its crib.

It seems the investigation was launched in the dying days of the Obama administration, so the recent changing of the guard at Justice — Attorney General Jeff Sessions was confirmed by Congress just two days ago — may have an impact on how it plays out.

ICANN’s Empowered Community to get its first test-drive after appeals panel vote

Kevin Murphy, February 8, 2017, Domain Policy

ICANN’s post-transition bylaws have only been in effect for a few months, but the board of directors wants to change one of them already.

The board last week voted to create a new committee dedicated to handling Requests for Reconsideration — formal appeals against ICANN decisions.

But because this would change a so-called Fundamental Bylaw, ICANN’s new Empowered Community mechanism will have to be triggered.

The Board Governance Committee, noting that the number of RfR complaints it’s having to deal with has sharply increased due to fights over control of new gTLDs, wants that responsibility split out to be handled by a new, dedicated Board Accountability Mechanisms Committee.

It seems on the face of it like a fairly non-controversial change — RfRs will merely be dealt with by a different set of ICANN directors.

However, it will require a change to one of the Fundamental Bylaws — bylaws considered so important they need a much higher threshold to approve.

This means the untested Empowered Community (which I’m not even sure actually exists yet) is going to get its first outing.

The EC is an ad hoc non-profit organization meant to give ICANN the community (that is, you) ultimate authority over ICANN the organization.

It has the power to kick out directors, spill the entire board, reject bylaws changes and approve Fundamental Bylaws changes.

It comprises four or five “Decisional Participants” — GNSO, the ccNSO, the ALAC, the ASO and (usually) the GAC.

In this case at least three of the five Decisional Participants must approve the change, and no more than one may object.

The lengthy process for the EC approving the proposed bylaws change is outlined here.

I wouldn’t expect this proposal to generate a lot of heated discussion on its merits, but it will put the newly untethered ICANN to the test for the first time, which could highlight process weaknesses that could be important when more important policy changes need community scrutiny.