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Registrars say Amazon is “closing” open gTLD

Kevin Murphy, April 25, 2016, Domain Registries

A group comprising some of the largest domain registrars has claimed Amazon is attempting to close off a new gTLD that it previously indicated would be unrestricted.

The 12-strong group, which includes Go Daddy, Network Solutions and Tucows, also claims that the company’s proposal for a “Registration Authentication Platform” is anti-competitive.

The complaints follow Amazon’s filing of a Registry Services Evaluation Process request with ICANN in March.

The RSEP speaks in broad terms about rejigging the conventional domain registration path so that all .moi sales are funneled through Amazon’s registry site, where registrants will have their eligibility verified and then be offered a set of add-on “technology tools” before being bounced back to their chosen registrar.

Amazon hasn’t said who will be eligible to register .moi domains, nor has it explained what technology tools it plans to offer. I expect the tools will include things such as hosting and security, where many registrars currently make money.

Unsurprisingly, many registrars are not happy about these vague proposals.

In a comment (pdf) to the RSEP filed yesterday, they said:

Ultimately, the use of pre-registration verification and “optional” value added services will negatively impact competition. By tying both practices in a TLD, a TLD Operator can create a “captive audience” via the pre-registration verification and then offering optional services. This will effectively bypass the existing registration and purchase process, putting TLD Operator in a privileged position. The TLD is set up to capture customers earned via the Registrars marketing efforts to promote its own tools and services.

It’s not unusual for “sponsored” or “restricted” gTLDs to implement registry-side verification, they admitted, but said that .moi is meant to be “open”.

They wrote:

While this practice is not explicitly prohibited under gTLDs, we believe that post-delegation inclusion of these practices should only be allowed in compelling circumstances because they are, in effect, retroactively “closing” what was applied for and approved to be operated as an open, generic TLD.

Amazon’s application for .moi, like all of its new gTLD applications, is not entirely clear on what the company’s plans are. There’s vague talk about eligibility, but no details and nothing substantial to suggest a tightly restricted zone.

The signatories to the registrar comment represent the majority of registered domain names. They are: Astutium, Blacknight Internet Solutions, Domain.com, EuroDNS, GoDaddy.com, OpenproviderNetEarth One, Key-Systems, Netistrar, Network Solutions, Nordreg, Realtime Register, Tucows Domains.

One registrar, Com Laude, whose sister company Valideus handles Amazon’s gTLD applications, wrote a comment (pdf) expressing the opposite view.

Com Laude says that it’s not unusual for registries to require registry-side verification. It points to .bank, .pharmacy and .travel as examples.

The company also claims that the 12 registrars are in essence complaining about the idea of vertical integration — where registries and registrars are under common ownership — which is already in place at companies such as Uniregistry and Rightside.

Com Laude’s Jeff Neuman wrote:

We do not believe that it is unacceptable for a company like Amazon to do what these other companies have been doing for some time. To apply different standards to Amazon Registry than it does for each of the other vertically integrated entities would single them out for disparate treatment – especially when there is no factual basis to believe that Amazon Registry has not adhered to its vertical integration-related obligations under the Registry Agreement.

What’s going on here, I suspect, is a bit of a proxy war.

Neither Amazon nor the registrars care a great deal about .moi, I think. The gTLD is merely a canary for Amazon’s 30-odd yet-to-be-launched gTLDs. The company has the rights to potentially more attractive strings, including .book, .song and .tunes.

Amazon originally wanted to make these strings “closed generics”, or what ICANN calls “exclusive access” gTLDs, where only Amazon could register names.

It has since disavowed such plans, but still hasn’t said who will be able to register names in its portfolio or how they will prove eligibility.

.moi was not originally identified as a closed generic by ICANN, but it could represent a model for what Amazon plans to do with the rest of its stable.

.hotel fight gets nasty with “criminal” hacking claims

Kevin Murphy, April 19, 2016, Domain Registries

A group of would-be .hotel gTLD registries have called on ICANN to reject the winning applicant’s bid or be complicit in “criminal acts”.

The group, which includes Travel Reservations, Famous Four Media, Radix, Minds + Machines, Donuts and Fegistry is threatening to file a second Independent Review Process complaint unless ICANN complies with its demands.

Six applicants, represented by Flip Petillion of Crowell & Moring, claim that Hotel Top Level Domain Sarl should forfeit its application because one of its representatives gained unauthorized access to their trade secrets.

That’s a reference to a story we covered extensively last year, where an ICANN audit found that DotBerlin CEO Dirk Krischenowski, or at least somebody using his credentials, had accessed hundreds of supposedly confidential gTLD application documents on ICANN’s web site.

Krischenowski, who has denied any wrongdoing, is also involved with HTLD, though in what capacity appears to be a matter of dispute between ICANN and the rival .hotel applicants.

In a month-old letter (pdf) to ICANN, only published at the weekend, Petillion doesn’t pull many punches.

The letter alleges:

Allowing HTLD’s application to proceed would go agaist everthing that ICANN stands for. It would amount to an acquiescence in criminal acts that were committed with the obvious intent to obtain an unfair advantage over direct competitors.

ICANN caught a representative of HTLD stealing trade secrets of competing applicants via the use of computers and the internet. The situation is even more critical as the crime was committed with the obvious intent of obtaining sensitive business information concerning a competing applicant.

It points out that ICANN’s Applicant Guidebook disqualifies people from applying for a new gTLD if they’ve been convicted of a computer crime.

To the best of my knowledge Krischenowski has not been convicted of, or even charged with, any computer crime.

What ICANN says he did was use its new gTLD applicants’ customer service portal to search for documents which, due to a dumb misconfiguration by ICANN, were visible to users other than their owners.

Krischenowski told DI in an emailed statement today:

According to ICANN, the failure in ICANN’s CSC and GDD portals was the result of a misconfiguration by ICANN of the software used (as mentioned at https://www.icann.org/news/announcement-2-2015-11-19-en). As a user, I relied on the proper functioning of ICANN’s technical infrastructure while working with ICANN’s CSC portal.

HTLD’s application for .hotel is currently “On Hold”, though it is technically the winner of the seven-application contention set.

It prevailed after winning a controversial Community Priority Evaluation in 2014, which was then challenged in an Independent Review Process case by the applicants Petillion represents.

They lost the IRP, but the IRP panelists said that ICANN’s failure to be transparent about its investigation into Krischenowski could amount to a breach of its bylaws.

In its February ruling, the IRP panel wrote:

It is not clear if ICANN has properly investigated the allegation of association between HTLD and D. Krischenowski and, if it has, what conclusions it has reached. Openness and transparency, in the light of such serious allegations, require that it should, and that it should make public the fact of the investigation and the result thereof.

The ruling seems to envisage the possibility of a follow-up IRP.

ICANN had told the panel that its investigation was not complete, so its failure to act to date could not be considered inaction.

The ICANN board resolved in March, two days after Petillion’s letter was sent, to “complete the investigation” and “provide a report to the Board for consideration”.

While the complaining applicants want information about this investigation, their clear preference appears to be that the HTLD application be thrown out.

Aussies get to drop the .com

Kevin Murphy, April 19, 2016, Domain Registries

Australia’s ccTLD manager has confirmed that local registrants will be able to register .au domains at the second level, eschewing the usual .com.

auDA said yesterday that its board has approved a plan that will let people register names such as example.au, rather than example.com.au or example.org.au.

The country follows the example of New Zealand and the UK, which have also started to permit second-level registrations in recent years.

auDA agreed with its policy committee that direct .au registrations would:

– make available domain names which are shorter, more appealing and more memorable

– give Australians more choice in deciding what domain name to register

– respond to market demand

– be more attractive to natural individuals than the current option, id.au

– strengthen the “.au brand” in a globally competitive market

– add value to all three main categories of users – registrars and resellers, registrants and ultimate users of the .au domain name system.

There’s no timeline yet on when 2LDs will become available, much less a policy on how potential conflicts will be handled, but auDA said it will provide updates later in the year.

.sucks “gag order” dropped, approved

Kevin Murphy, April 19, 2016, Domain Registries

Vox Populi, the .sucks registry, has had controversial changes to its registrar contract approved after it softened language some had compared to a “gag order”.

ICANN approved changes to the .suck Registry-Registrar Agreement last week, after receiving no further complaints from registrar stakeholders.

Registrars had been upset by a proposed change that they said would prevent brand-protection registrars from publicly criticizing .sucks:

The purpose of this Agreement is to permit and promote the registration of domain names in the Vox Populi TLDs and to allow Registrar to offer the registration of the Vox Populi TLDs in partnership with Vox Populi. Neither party shall take action to frustrate or impair the purpose of this Agreement.

But Vox has now “clarified” the language to remove the requirement that registrars “promote” .sucks names. The new RRA will say “offer” instead.

Registrars had also complained that the new RRA would have allowed Vox to unilaterally impose new contractual terms with only 15 days notice.

Vox has amended that proposal too, to clarify that changes would come into effect 15 days after ICANN has given its approval.

Vox CEO John Berard told ICANN in a March 18 letter:

VoxPop’s intent was never to alter any material aspect of the Registry Registrar Agreement. Our intent was to clarify legal obligations that already exist in the Agreement, and conform the timeframes for any future amendments with those specified in our ICANN registry contract.

Did the DotConnectAfrica judge make a big dumb mistake?

Kevin Murphy, April 14, 2016, Domain Registries

The court ruling that granted DotConnectAfrica a preliminary injunction preventing ICANN delegating .africa seems to be based to a large extent on a huge error by the judge.

In explaining why he was allowing DCA v ICANN to proceed, despite DCA’s signing away its right to sue when it filed its new gTLD application, California district judge Gary Klausner seems to have confused DCA with rival .africa applicant ZACR.

In his Tuesday ruling, Klausner said that evidence supports the claim that ICANN was determined to flunk DCA’s application no matter what.

The key evidence, according to the judge, is that the Initial Evaluation of DCA’s application found that it did have enough support from African governments to pass its Geographic Names Review, but that ICANN subsequently reversed that view in Extended Evaluation.

He wrote:

DCA claims that “the process ICANN put Plaintiff through was a sham with a predetermined ending – ICANN’s denial of Plaintiff’s application so that ICANN could steer the gTLD to ZACR.”

In support, DCA offers the following evidence. ICANN’s initial evaluation report in July 2013 stated that DCA’s endorsement letters “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) After the IRP Decision, ICANN performed a second evaluation on the same information originally submitted by DCA. In the second evaluation, however, ICANN found that the endorsement letters did not meet the same criteria applied in the first evaluation

He later writes:

Despite ICANN’s contention, the evidence presents serious questions pointing in favor of DCA’s argument. First, a March 2013 email from ICC to ICANN stated that ICANN needs to clarify AUC’s endorsements since AUC properly endorsed both DCA and ZACR. (Bekele Decl. ¶ 30, Ex. 19, ECF No. 17.) Subsequently, ICANN’s July 2013 initial evaluation report found that the endorsement letters have “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) Because ICANN found DCA’s application passed the geographic names evaluation in the July 2013 initial evaluation report, the Court finds serious questions in DCA’s favor as to whether DCA’s application should have proceeded to the delegation stage following the IRP Decision.

The document “Bekele Decl. ¶ 40, Ex. 27” referred to is exhibit 27 of DCA CEO Sophia Bekele’s March 1 declaration, filed in support of its preliminary injunction motion.

The problem is that that exhibit is not the Initial Evaluation report for DCA’s .africa bid, it’s the IE report for rival ZACR (aka UniForum).

Read it here (pdf).

DCA’s own application never received a scored IE report. At least, one was never published.

It only got this (pdf), which states simply “Overall Initial Evaluation Summary: Incomplete”. That document is dated July 3, 2013, almost two weeks before the ZACR report.

Bekele’s declaration even states that exhibit 27 is the IE report for the ZACR application.

It’s not clear to this non-lawyer how important this pretty basic error is to Klausner’s thinking, but as a layman it looks pretty crucial.

It certainly seems like something that needs to be addressed, given that the apparent misunderstanding plays into both the decision to allow the lawsuit to proceed and the decision that DCA’s complaint may have merit.

Several other exhibits cited in the ruling — including emails from the InterConnect Communications evaluators who carried out the Geographic Names Review — have been redacted by the court.

It’s possible there are smoking guns contained within these censored documents that were more influential on the ruling.

It’s also notable that ICANN is continuing to redact the court documents it publishes on its web site, beyond those filed under seal and censored by the court.