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.
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 188.8.131.52.3 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 184.108.40.206.3 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.
DotGreen Community has withdrawn from its partnership with Afilias, leaving the registry operating the .green gTLD solo.
The new management means that renewal prices for sunrise names will be slashed, and the size of the premium names list will be reduced.
It made a deal with Afilias to run sales and marketing for the domains, with Afilias handling all the technical stuff. The plan was to use profits to help environmental causes.
But Afilias told its registrars in an email this week:
Unfortunately, DotGreen Community has informed us that it is no longer able to discharge these responsibilities, and has turned the sales and marketing responsibilities back over to Afilias.
The gTLD has a new logo and a new website at get.green.
Afilias said it will no longer charge a extra $50 for renewals of sunrise period names.
It also plans to revise its premium names list by November, and will probably reduce the size of the list, releasing names at regular registry prices.
.green domains haven’t exactly been flying off the shelves with DotGreen running marketing.
It went into general availability in March last year but only has about 2,200 names in its zone file.
DotConnectAfrica has won a California court ruling that will allow it to continue suing ICANN over its twice-rejected .africa gTLD application.
District judge Gary Klausner ruled yesterday that the litigation waiver all applicants had to sign when they applied may be unenforceable.
“The Court finds substantial questions as to the Release, weighing toward its unenforceability,” he wrote (pdf).
California law says that such waivers cannot stop people being sued for fraud, and fraud is what DCA is alleging, he explained.
DCA alleges that ICANN intended to deny DCA’s application after the IRP proceeding under any pretext and without a legitimate reason.
The evidence suggests that ICANN intended to deny DCA’s application based on pretext. Defendants have not introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of the Release due to California Civil Code § 1668.
The judge granted DCA’s request for a preliminary injunction that will prevent it from delegating .africa to successful applicant ZACR.
ZACR has the backing of the African Union Commission and, per ICANN rules, over 60% of the governments in Africa.
DCA applied for .africa with no government support, but with an AUC letter of support than had already been retracted. The company claims that the AUC was not allowed to withdraw its endorsement under ICANN rules.
But it doesn’t seem to matter what the governments of Africa want. Klausner wrote:
On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.
Sorry Africa, no gTLD for you yet!
The case continues…
The domain name industry is about to get a new type of conference.
Domain broker Ryan Colby of Outcome Brokerage is to host what is believed to be the first domain “hackathon”, and says he already has domains he estimates as being worth $3 million submitted for the event.
Codemology, as the conference will be called, will be held over two days in Charlotte, North Carolina, in October.
The idea is to bring the owners of premium domain names together with angel investors and young, skilled developers, with the hope that some workable business ideas might emerge.
“We are trying to utilize the ‘excess capacity’ of premium domains in the marketplace, which are just sitting there doing nothing, oozing with potential, waiting for the next killer idea,” Colby told DI today.
Over the weekend of the event, the goal will be to create a bunch of “minimal viable products” for each selected domain that could be developed further.
It’s a free event, but attendees need to go through an application process before being given tickets. Colby said he’s marketing the event at university students and those who regularly attend hackathons.
The list of domains that will be used has not been finalized yet, but Colby’s clients have already submitted at least four pretty terrific one-word dictionary .coms.
Domains in new gTLDs will also make an appearance.
“If you’re a domain owner, why not submit it to the kid from MIT who might have a winning idea? There’s no risk, and huge upside if something comes about,” Colby said.
The developers keep the IP rights to whatever they code during the event, he said.
“It’s up to the domain owner to choose to collaborate, buy their IP or walk away,” he said.
Colby said he’s working on an app that will allow people to vote on domains that have been submitted, with the most popular ones being used at Codemology.
He said he’s hopeful of running similar events in other cities after the Charlotte conference.
DotKids Foundation has comprehensively lost is .kids Community Priority Evaluation.
The company’s CPE results came out at the weekend (pdf), showing a score of 6 out of the 16 available points, a long way short of the 14-point passing score.
Like other “community” new gTLD bids before it, .kids failed because the Economist Intelligence Unit panel decided that the application was an attempt to create a community rather than represent an existing one. It wrote:
The Panel determined that this application refers to a “community” construed to obtain a sought-after generic word as a gTLD string, and that the application is attempting to organize the various groups mentioned in the documentation through a gTLD.
The application scored a big fat 0/4 on the question of whether the community exists and, as a knock-on effect, another 0/4 on whether the .kids string represents the community.
It picked up 3/4 for its registration policies and 3/4 on community endorsement.
The CPE failure means DotKids will have to face rival Amazon at auction, where one imagines the not-for-profit foundation will have a hard time winning.
ICANN’s CPE pipeline currently only has one active application, where Merck KGaA is fighting to avoid an auction with rival Merck Registry Holdings, Inc.
The latter .merck, and Vistaprint’s .webs application, have both also been invited to CPE.