Death warrant or portent of impending legal action?
dotgay LLC has lost its third attempt to get ICANN to reconsider tossing its application for community priority status in the fight for the .gay gTLD.
According to ICANN, on Sunday its Board Governance Committee threw out dotgay’s third Request for Reconsideration, an attempt to give the company an unprecedented third go at the Community Priority Evaluation process.
CPEs allow community gTLD applicants to avoid expensive auctions, but dotgay has lost two primarily on the grounds that its definition of community includes people who are not gay.
Its latest RfR was pretty weak, based on a technicality about which staffers at the Economist Intelligence Unit (which carries out the CPEs) were in charge of verifying its letters of community support.
The rationale for the BGC’s determination, which still needs to be rubber-stamped by the full ICANN board, has not been published yet.
But it seems from a blog post that ICANN now expects .gay to go to auction, where there are four competing applicants in total.
ICANN does not usually publish blog posts on RfR decisions, but in the .gay case it has been keen to avoid being accused of any motivation beyond a dogged pursuit of correct procedure.
So will dotgay go quietly? It remains to be seen.
While all new gTLD applicants had to sign a release promising not to sue ICANN, .africa applicant DotConnectAfrica sued earlier this year and managed to get a sympathetic judge who seems bent on allowing the case to go to trial.
ICANN and Verisign have agreed to extend their .com registry contract for another six years, but there are no big changes in store for .com owners.
Verisign will now get to run the gTLD until November 30, 2024.
The contract was not due to expire until 2018, but the two parties have agreed to renew it now in order to synchronize it with Verisign’s new contract to run the root zone.
Separately, ICANN and Verisign have signed a Root Zone Maintainer Agreement, which gives Verisign the responsibility to make updates to the DNS root zone when told to do so by ICANN’s IANA department.
That’s part of the IANA transition process, which will (assuming it isn’t scuppered by US Republicans) see the US government’s role in root zone maintenance disappear later this year.
Cunningly, Verisign’s operation of the root zone is technically intermingled with its .com infrastructure, using many of the same security and redundancy features, which makes the two difficult to untangle.
There are no other substantial changes to the .com agreement.
Verisign has not agreed to take on any of the rules that applies to new gTLDs, for example.
It also means wholesale .com prices will be frozen at $7.85 for the foreseeable future.
The deal only gives Verisign the right to raise prices if it can come up with a plausible security/stability reason, which for one of the most profitable tech companies in the world seems highly unlikely.
Pricing is also regulated by Verisign’s side deal (pdf) with the US Department of Commerce, which requires government approval for any price increases until such time as .com no longer has dominant “market power”.
The .com extension is now open for public comment.
Predictably, it’s already attracted a couple of comments saying that the contract should instead be put out to tender, so a rival registry can run the show for cheaper.
That’s never, ever, ever, ever going to happen.
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”.
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.
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.
People are becoming more aware that new gTLDs exist, but there’s less trust in them that there was a year ago, according to an ICANN-sponsored survey.
The second annual Global Consumer Survey, which was published late last week, shows that 16% of respondents had heard of specific new gTLDs, on average.
That’s up 2% on last year’s survey.
The number for TLDs added in the last year was 20%, with .news leading the pack with 33% awareness.
However, fewer people were actually visiting these sites: 12% on average, compared to 15% a year ago. For TLDs added in the last year, visitation averaged 15%.
And the amount of trust placed on new gTLDs added prior to the 2015 survey was down from 49% to 45% — half the level of .com, .org and .net.
For TLDs added since last year’s survey, trust was at 52% on average.
The 2015 survey looked only at .email, .photography, .link, .guru, .realtor, .club and .xyz. For this year’s survey, respondents were also asked about .news, .online, .website, .site, .space, .pics, .top, .bank, .pharmacy, and .builder.
The number of registered domains did not seem to have an impact on how aware respondents were on individual extensions.
.xyz, for example, had the lowest awareness of those used in the survey — 9% versus 5% in 2015 — despite being the runaway volume market leader and having scored PR coups such as Google’s adoption of abc.xyz for its new parent company, Alphabet.
Likewise, .top, second only to .xyz in the size league table, could only muster up 11% awareness.
.news, .email and .online topped the awareness list — with 33%, 32% and 30% respectively — despite having only about 500,000 names between them.
I’m not sure I buy much of this data to be honest. There’s some weirdness.
For example, the survey found that 28% of respondents claim to have visited a .email web site.
That’s a gTLD at least partially if not primarily designed for non-web use, with roughly 20,000 names that are not parked.
If over a quarter of the population were visiting .email sites, you might expect some of those sites to show up prominently in Alexa rankings, but they don’t.
But perhaps, if we take this survey as a measure of consumers perceptions, it doesn’t matter so much whether it reflects the reality of internet use.
The survey, conducted by Nielsen for ICANN, covered dozens of other aspects of internet use, including feelings on cybersecurity, navigation and such, and weighs in at 160 pages. Read it all over here.