Big Content calls for government new gTLD oversight

The music, movie and advertising industries have backed a US move that could see governments getting more control over the approval of new top-level domains.

They’ve urged the National Telecommunications and Information Administration to keep a proposed rule that would force ICANN to show a new gTLD is in the “global public interest” before giving it the nod.

But they are opposed by many other stakeholders who responded to the NTIA’s Further Notice Of Inquiry on the renewal of ICANN’s IANA contract.

The FNOI resulted in about 35 responses, from companies and organizations on five continents.

The most controversial question posed by the NTIA was whether the IANA contract should include this provision:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

This was broadly interpreted as a way for governments to have a de facto veto over new gTLD applications, via ICANN’s Governmental Advisory Committee.

The proposed measure has now been supported by the Recording Industry Association of America, the Association of National Advertisers, and the Coalition for Online Accountability, which represents the music and movie industries.

Brand owners want another bite

In his strongly worded response, ANA president Robert Liodice wrote that the new gTLD program “is likely to cause irreparable injury to brand owners”, adding that it supported the NTIA’s proposal.

[It] provides a layer, however thin, of contractual protection that gTLDs will not be deposited to the authoritative root zone without appropriate justification. While the ANA believes that these protections are marginal at best, and that a more secure, safe and permanent solution must be found to prevent the harms to brand owners and consumers described above; nonetheless, “something is better than nothing”

Special interests

The RIAA said in its filing that it “strongly supports” the proposal, on the basis that it thinks .music, if approved as a gTLD, could lead to more online music piracy.

there are no concrete obligations in the latest application guidebook to implement heightened security measures for these types of gTLDs that are focused on particular industries such as record music. Given the the risk that such a gTLD application could pass through the ICANN process without committing to such measures, it should be incumbent on the IANA contractor to document how its entry into the root would meet the “global public interest” standard.

It’s a drum the RIAA, never afraid of making special-interest arguments on matters of internet governance, has been beating for some time.

It stopped short of asking for all existing TLDs (and IP addresses, in the case of peer-to-peer applications) to be banned outright, which would presumably do much more to prevent piracy.

Oh no you ditn’t!

The COA, which includes the RIAA among its members, has the honor of being the first of ICANN’s critics to raise the Peter Dengate Thrush Situation to officially bash the organization.

PDT, as you’ll recall, joined Minds + Machines, likely to be a volume gTLD applicant next year, just a few weeks after he helped push through ICANN’s approval of the gTLD program.

COA counsel Steve Metalitz wrote:

This development tends to confirm COA’s view that “the new gTLD process, like so much of ICANN’s agenda, has been ‘led’ by only a small slice of the private sector, chiefly the registrars and registries who stand to profit from the introduction of new gTLDs.”

…

If a “check and balance” on addition of these new gTLDs to the root was advisable prior to this announcement, it now appears to be indispensable.

Plenty of ICANN stakeholders on both sides of the new gTLD debate have been calling for a review of ICANN’s ethics policies recently, so the COA is far from alone in highlighting the perception problem PDT’s move, and others, may have created.

It looked dodgy, and people noticed.

But on the other hand…

Many responses to the FNOI take the opposing view – saying that the “global public interest” requirements appear to run contrary to IANA’s technical coordination mandate.

IANA’s statement of work, which mandates IANA staff independence from ICANN policy-making, seems like a very odd place to introduce a vague and highly policy-driven oversight check.

Opposition came from the gTLD registry community and likely applicants, as you might expect, as well as from a number of ccTLD operators, which was perhaps less predictable.

A typical response, from the ccNSO, was:

While recognising and supporting the need for ensuring that new gTLDs have consensus support and are consistent with the global public interest, the ccNSO suggests that the IANA contractor’s role should simply be to verify that ICANN has followed the Guidebook process and that all the evaluation criteria (not just the two referred to) have been met.

A number of responses also call for the strict separation of IANA staff from ICANN’s policy-making functions to be relaxed. The way the NTIA’s proposal is currently worded, it’s not clear if IANA’s experts would be able to provide their input to important work.

FarmVille domain seized from Chinese squatter

Zynga has claimed control of the domain name farmville.co.uk from a Chinese cyberquatter.

The summary decision under Nominet’s Dispute Resolution Service was made July 14, and posted to the Nominet web site today, but the Whois still shows the previous owner.

According to Whois records, the domain was registered July 1, 2009, just a couple of weeks after the popular FarmVille game launched on Facebook.

The domain currently resolves to a Sedo placeholder page.

If this proves anything, it’s that owners of rapidly growing web applications need to keep an eye on their brands in non-core TLDs, because cybersquatters are too.

Final gTLD Applicant Guidebook expected this week

It’s been over a month since ICANN approved its new top-level domains program, but we still don’t have a final-final version of the Applicant Guidebook.

The resolution approving the program ICANN passed in Singapore called for a number of amendments to be made to the 352-page tome.

The current draft was published May 30, and so far ICANN has not said when the next version – likely to be the version used in the first round of applications – will be released.

I inquired, and now word has come from on high that ICANN’s new gTLD team hopes to have the English version of the new Guidebook published by the end of July – this coming weekend.

The Singapore resolution called for changes to the government Early Warning and Advice processes, added protection for Olympic and Red Cross trademarks, and a modification of the Uniform Rapid Suspension cybersquatting policy.

One has to wonder if the changes outlined in the resolution are the only changes that we’ll see – a month seems like a long time to make just a few fairly minor edits.

The resolution said the board “authorizes staff to make further updates and changes to the Applicant Guidebook as necessary and appropriate”.

The first round of new gTLD applications is set to open January 12.

ICANN fights government gTLD power grab

ICANN has opposed a US move to grant governments veto power over controversial new top-level domain applications.

Cutting to the very heart of Obama administration internet governance policy, ICANN has told the National Telecommunications and Information Administration that its recent proposals would “undermine the very principle of the multi-stakeholder model”.

The stern words came in ICANN’s response to the NTIA’s publication of revisions to the IANA contract, the contract that allows ICANN to retain its powers over the domain name system root.

The NTIA’s Further Notice Of Inquiry contained proposed amendments to the contract, including this:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

This was widely interpreted as a US attempt to avoid a repeat of the .xxx scandal, when ICANN approved the porn gTLD despite the unease voiced by its Governmental Advisory Committee.

As I noted in June, it sounds a lot like code for “if the GAC objects, you must reject”, which runs the risk of granting veto powers to the GAC’s already opaque consensus-making process.

In his response to the FNOI (pdf), ICANN chief Rod Beckstrom says that the NTIA’s proposal would “replace” the “intensive multi-stakeholder deliberation” that created the newly approved Applicant Guidebook.

He also pointed out the logical inconsistency of asking IANA to remain policy-neutral in one part of the proposed contract, and asking it to make serious policy decisions in another:

The IANA functions contract should not be used to rewrite the policy and implementation process adopted through the bottom-up decision-making process. Not only would this undermine the very principle of the multi-stakeholder model, it would be inconsistent with the objective of more clearly distinguishing policy development from operational implementation by the IANA functions operator.

NTIA head Larry Strickling has been pounding the “multistakeholderism” drum loudly of late, most recently in a speech in Washington and in an interview with Kieren McCarthy of .nxt.

In the .nxt interview, Strickling was quite clear that he believes ICANN should give extra authority to governments when it comes to approving controversial strings.

The NTIA concern – shared by other government entities including the European Commission – is that controversial strings could lead to national blocking and potentially internet fragmentation.

While Strickling declined to comment on the specific provisions of the IANA contract, he did tell .nxt:

If the GAC as a consensus view can’t support a string then my view is that the ICANN Board should not approve the string as to do so in effect legitimizes or sanctions that governments should be blocking at the root zone level. And I think that is bad for the Internet.

Where you’re dealing with sensitive strings, where you’ve engaged the sovereignty of nations, I think it is appropriate to tip the hat a little bit more to governments and listen to what they say. On technical issues it wouldn’t be appropriate but on this particular one, you’ve got to listen a little bit more to governments.

He also indicated that the US would not necessarily stand up for its principles if confronted by substantial objections to a string from other governments:

So we would be influenced – I can’t say it would be dispositive – if a large number of countries have a problem with a particular string, even if it was one that might not be objectionable to the United States government.

And that is out of interest of protecting the Internet’s root from widespread blocking at the top-level by lots of governments.

Does this mean that the US could agree to a consensus GAC objection to a .gay gTLD? A .porn? A .freespeech? It certainly sounds like it.

Olympics make more new gTLD demands

The International Olympic Committee, fresh from its big win at ICANN Singapore, is pushing for more special protections in the new top-level domains program.

ICANN only approved the new gTLD program last month with the proviso that Olympic and Red Cross strings – .redcross and .olympic for example – would be banned as gTLDs in the first round.

The decision was a pretty obvious piece of political bone-throwing to the Governmental Advisory Committee, which had backed the IOC’s cause.

Now the IOC wants to ensure ICANN will ban .olympic and .olympiad in eight additional languages, including four non-Latin scripts, as well as “confusingly similar” strings such as .olympics.

I expect ICANN will probably grant this concession, even though the idea that somebody other than the IOC could successfully apply for .olympics under existing rules has always been ludicrous.

The IOC has probably already spent just as much money lobbying for these changes as it would have cost to file a slam-dunk legal rights objection, as already allowed by the Guidebook.

And that would only have been necessary, of course, in the vanishingly improbable scenario where somebody was stupid enough to pay $185,000 to apply for .olympics in the first place.

But the IOC now also wants all of its brands banned at the second level in all new gTLDs. This seems like a bigger ask, given that ICANN resolved to protect the Olympic marks “for the top level only”.

In a July 1 letter to ICANN (pdf), published today, an IOC lawyer includes suggested text for the Applicant Guidebook, to be included in the default registry agreement, stating:

In recognition of legislative and treaty protection for the Olympic designations, the labels “OLYMPIC” and “OLYMPIAD” shall be initially reserved at the second level. The reservation of an Olympic designation label string shall be released to the extent Registry Operator reaches agreement with the International Olympic Committee.

This would give the Olympic brand as much protection as country names at the second level.

The problem with this, of course, is that it sets the precedent for a specially protected marks list, which ICANN has resisted and which the GAC specifically has not asked for.

It’s a problem ICANN has arguably brought on itself, of course, given that it already specially protects “icann”, “iana” and a number of other strings on spurious technical stability grounds.