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Fight as ICANN “backtracks” on piracy policing

Kevin Murphy, July 1, 2016, Domain Policy

ICANN has clarified that it will not terminate new gTLD registries that have piracy web sites in their zones, potentially inflaming an ongoing fight between domain companies and intellectual property interests.

This week’s ICANN 56 policy meeting in Helsinki saw registries and the Intellectual Property Constituency clash over whether an ICANN rule means that registries breach their contract if they don’t suspend piracy domains.

Both sides have different interpretation of the rule, found in the so-called “Public Interest Commitments” or PICs that can be found in Specification 11 of every new gTLD Registry Agreement.

But ICANN chair Steve Crocker, in a letter to the IPC last night, seemed to side strongly with the registries’ interpretation.

Spec 11 states, among other things, that:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

A literal reading of this, and the reading favored by registries, is that all registries have to do to be in compliance is to include the piracy prohibitions in their Registry-Registrar Agreement, essentially passing off responsibility for piracy to registrars (which in turn pass of responsibility to registrants).

Registries believe that the phrase “consistent with applicable law and related procedures” means they only have to suspend a domain name when they receive a court order.

Members of the IPC, on the other hand, say this reading is ridiculous.

“We don’t know what this clause means,” Marc Trachtenberg of the IPC said during a session in Helsinki on Tuesday. “It’s got to mean something. It can’t just mean you have to put a provision into a contract, that’s pointless.”

“To put a provision into a contract that you’re not going to enforce, has no meaning,” he added. “And to have a clause that a registry operator or registrar has to comply with a court order, that’s meaningless also. Clearly a registry operator has to comply with a court order.”

Some IPC members think ICANN has “backtracked” by introducing the PICs concept then failing to enforce it.

IPC members in general believe that registries are supposed to not only require their registrars to ban piracy sites, but also to suspend piracy domains when they’re told about them.

Registries including Donuts have started doing this recently on a voluntary basis with partners such as the Motion Picture Association of America, but believe that ICANN should not be in the business of content policing.

“[Spec 11] doesn’t say what some members of the IPC think it says,” Donuts VP Jon Nevett said during the Helsinki session. “To say we’re in blatant violation of that PIC and that ICANN is not enforcing that PIC is problematic.”

The fight kicked off face-to-face in Helsinki, but it has been happening behind the scenes for several months.

The IPC got mad back in February when Crocker, responding to Governmental Advisory Committee concerns about intellectual property abuse, said the issue “appears to be outside of our mandate” (pdf).

That’s a reference to ICANN’s strengthening resolve that it is not and should not be the internet’s “content police”.

In April (pdf) and June (pdf) letters, IPC president Greg Shatan and the Coalition for Online Accountability’s Steve Metalitz called on Crocker to clarify this statement.

Last night, he did, and the clarification is unlikely to make the IPC happy.

Crocker wrote (pdf):

ICANN will bring enforcement actions against Registries that fail to include the required prohibitions and reservations in its end-user agreements and against Registrars that fail to main the required abuse point of contact…

This does not mean, however, that ICANN is required or qualified to make factual and legal determinations as to whether a Registered Name Holder or website operator is violating applicable laws and governmental regulations, and to assess what would constitute an appropriate remedy in any particular situation.

This seems pretty clear — new gTLD registries are not going to be held accountable for domains used for content piracy.

The debate may not be over however.

During Helsinki there was a smaller, semi-private (recorded but not webcast live) meeting of the some registries, IPC and GAC members, hosted by ICANN board member Bruce Tonkin, which evidently concluded that more discussion is needed to reach a common understanding of just what the hell these PICs mean.

Brexit probably no big deal for UK domain owners

Kevin Murphy, June 29, 2016, Domain Policy

The UK may have suffered the most serious self-inflicted wound since the deep-fried Mars bar when it voted to leave the European Union last week, but it seems unlikely to have a huge effect on domain name registrants.

Most EU ccTLD registries do not require registrants to be based in the EU, and those that do have shown themselves flexible.

I surveyed the web sites of all 29 EU ccTLD registries, scouring FAQs and policy documents, to see if leaving the EU would cause conflicts for UK registrants.

All but one of these sites have comprehensive English versions available, which made the process very simple indeed.

It turns out the majority of the EU’s member states either have no geographic restrictions whatsoever or restrict registrations to only people and companies within their own nations.

I found five — six if you count .eu itself — that have policies that refer directly to a European Union presence in their rules and regulations.

  • .fr (France) is restricted to residents of the EU and Iceland, Liechtenstein, Norway and Switzerland.
  • .it (Italy) allows registrations from anyone in the European Economic Area, the Vatican, San Marino or Switzerland.
  • .nl (Netherlands) allows regs from anywhere, but registry manager SIDN says may attach “additional conditions to legal and/or natural persons based outside the European Union”.
  • .hu (Hungary) requires EU residency for individuals and companies wishing to register directly at the second level. There are no such restrictions at the third level.
  • .bg (Bulgaria) requires a local Bulgarian presence for non-EU registrants.
  • .eu (European Union) requires presence in the European Union, Norway, Iceland or Liechtenstein.

As you can see, even those with EU presence requirements are pretty flexible when it comes to bolting on additional eligible countries.

So-called Brexit — British exit from the EU — is unlikely to happen for two years or more, if it happens at all.

The thinking right now is that if/when the UK does finally formally leave it is likely to either become a member of the European Economic Area or have otherwise have negotiated a relationship with the EU not unlike Norway’s.

This would presumably make it fairly easy for ccTLD registries to plug the UK into their existing policies.

Any registry with a substantial number of existing UK registrants would of course have financial exposure to a Brexit, a likely incentive to modify their rules accordingly.

So for regular domain owners, Brexit is probably no big deal.

Whether the move would an impact on trademark holders or registrars are rather more complex matters that I have not looked at yet.

ICANN Ombudsman let go as role comes up for review

Kevin Murphy, June 29, 2016, Domain Policy

ICANN’s Ombudsman, Chris LaHatte, has been told his services are no longer needed.

His current contract expires July 27, but he’s been informed that it will not be renewed.

No reason has been given for the move.

Herb Waye, who took the role on an interim basis in 2011 after the departure of former Ombusdman Frank Fowlie, will step in again while ICANN looks for a permanent replacement.

LaHatte will continue on as an adviser during the transition.

The decision to replace LaHatte comes as the ICANN community begins on so-called Work Stream 2 of the IANA transition process, which includes a review of the role of the Ombudsman in ICANN’s power structure.

The Ombudsman’s job is currently to adjudicate on matters of fairness in ICANN’s activities.

He or she reports to the board and any advice given is non-binding.

Judge throws out DotConnectAfrica’s case against ZACR

Kevin Murphy, June 15, 2016, Domain Policy

South African registry ZACR did not engage in a fraudulent conspiracy with ICANN to get its .africa gTLD application approved, a court ruled yesterday.

The California judge in the case of DotConnectAfrica vs ICANN and ZACR threw out all of DCA’s claims against ZACR, approving ZACR’s motion to dismiss.

The judge said DCA had failed to make claims for fraud, contract intereference and unfair competition.

He also threw out DCA’s demand for ZACR’s .africa Registry Agreement to be scrapped.

The case is not over, however.

DCA’s claims against ICANN still stand and ICANN, perhaps regrettably, withdrew its own motion to dismiss the case weeks ago. The case still looks like heading to trial.

DCA reckons ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of its new gTLD application contract.

The judge has already ruled that the litigation waiver DCA signed when it applied for .dotafrica .africa may be unenforceable.

He also based a decision to give DCA’s claims the benefit of the doubt on a huge misunderstanding of the facts, which he has yet to address publicly.

You can read the judge’s latest order here (pdf).

Under an injunction DCA won, .africa cannot be delegated until the case is resolved.

NTIA gives nod to IANA transition

Kevin Murphy, June 9, 2016, Domain Policy

The US National Telecommunications and Information Administration has formally thrown its weight behind the community-led proposal that would remove the US government, itself in effect, from DNS root oversight.

Assistant secretary Larry Strickling held a press conference this afternoon to confirm the hardly surprising development, but dodged questions about a Republican move to scupper the plan in Congress.

The IANA transition plan, which was developed by the ICANN community over about two years, meets all the criteria NTIA had set out in its surprise 2014 announcement, Strickling confirmed.

Namely, NTIA said in a press release that the the plan would:

  • Support and enhance the multistakeholder model;
  • Maintain the security, stability, and resiliency of the Internet DNS;
  • Meet the needs and expectations of the global customers and partners of the IANA services; and
  • Maintain the openness of the Internet.

Probably more importantly, NTIA agrees with everyone else that the plan does not replace NTIA’s role with more government meddling.

US Sen. Ted Cruz and Rep. Sean Duffy see things differently. They yesterday introduced the Protecting Internet Freedom Act, which would stop the transition going ahead.

Strickling said that NTIA has been talking to Congress members about the transition, but declined to “speculate” about the new bill’s likelihood of success.

“We’ve been up on the Hill doing briefings and will continue to do so with any member that wants to talk to us,” he said.

Currently, NTIA is forbidden by law from spending any money on the transition, but that prohibition expires (unless it is renewed) at the end of the current federal budget cycle.

The plan is to carry out the transition after that, Strickling said.

The current IANA contract expires September 30. It may be extended, depending on how quickly ICANN and Verisign proceed on their implementation tasks.