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New gTLD “strawman” splits community

Kevin Murphy, January 16, 2013, Domain Policy

The ICANN community is split along the usual lines on the proposed “strawman” solution for strengthening trademark protections in the new gTLD program.

Registrars, registries, new gTLD applicants and civil rights voices remain adamant that the proposals — hashed out during closed-door meetings late last year — go too far and would impose unreasonable restrictions on new gTLDs registries and free speech in general.

The Intellectual Property Constituency and Business Constituency, on the other hand, are (with the odd exception) equally and uniformly adamant that the strawman proposals are totally necessary to help prevent cybersquatting and expensive defensive registrations.

These all-too-predictable views were restated in about 85 emails and documents filed with ICANN in response to its initial public comment period on the strawman, which closed last night.

Many of the comments were filed by some of the world’s biggest brand owners — many of them, I believe, new to the ICANN process — in response to an International Trademark Association “call to action” campaign, revealed in this comment from NCS Pearson.

The strawman proposals include:

  • A compulsory 30-day heads-up window before each new gTLD starts its Sunrise period.
  • An extension of the Trademark Claims service — which alerts trademark owners and registrants when a potentially infringing domain is registered — from 60 days to 90 days.
  • A mandatory “Claims 2” service that trademark owners could subscribe to, for an additional fee, to receive Trademark Claims alerts for a further six to 12 months.
  • The ability for trademark owners to add up to 50 confusingly similar strings to each of their Trademark Clearinghouse records, provided the string had been part of a successful UDRP complaint.
  • A “Limited Preventative Registration” mechanism, not unlike the .xxx Sunrise B, which would enable trademark owners to defensively register non-resolving domains across all new gTLDs for a one-off flat fee.

Brand owners fully support all of these proposals, though some companies filing comments complained that they do not go far enough to protect them from defensive registration costs.

The Limited Preventative Registration proposal was not officially part of the strawman, but received many public comments anyway (due largely to INTA’s call-to-action).

The Association of National Advertisers comments were representative:

an effective LPR mechanism is the only current or proposed RPM [Rights Protection Mechanism] that addresses the critical problem of defensive registrations in the new Top Level Domain (gTLD) approach. LPR must be the key element of any meaningful proposal to fix RPMs.

Others were concerned that the extension to Trademark Claims and proposed Claims 2 still didn’t go far enough to protect trademark rights.

Lego, quite possibly the most aggressive enforcer of its brand in the domain name system, said that both time limits are “arbitrary” and called for Trademark Claims to “continue indefinitely”.

It’s pretty clear that even if ICANN does adopt the strawman proposals in full, it won’t be the end of the IP community’s lobbying for even stronger trademark protections.

On the other side of the debate, stakeholders from the domain name industry are generally happy to embrace the 30-day Sunrise notice period (many will be planning to do this in their pre-launch marketing anyway).

A small number also appear to be happy to extend Trademark Claims by a month. But on all the other proposals they’re clear: no new rights protection mechanisms.

There’s a concern among applicants that the strawman proposals will lead to extra costs and added complexity that could add friction to their registrar and reseller channel and inhibit sales.

The New TLD Applicant Group, the part of the Registries Constituency representing applicants for 987 new gTLDs, said in its comments:

because the proposals would have significant impact on applicants, the applicant community should be supportive before ICANN attempts to change such agreements and any negative impacts must be mitigated by ICANN.

There’s a concern, unstated by NTAG in its comments, that many registrars will be reluctant to carry new gTLDs at launch if they have to implement more temporary trademark-protection measures.

New registries arguably also stand to gain more in revenue than they lose in reputation if trademark owners feel they have to register lots of domains defensively. This is also unstated.

NTAG didn’t say much about the merits of the strawman in it comments. Along with others, its comments were largely focused on whether the changes would be “implementation” or “policy”, saying:

There can be no doubt that the strawman proposal represents changes to policy rather than implementation of decided policy.

If something’s “policy”, it needs to pass through the GNSO and its Policy Development Process, which would take forever and have an uncertain outcome. Think: legislation.

If it’s “implementation”, it can be done rather quickly via the ICANN board. Think: executive decision.

It’s becoming a bit of a “funny cause it’s true” in-joke that policy is anything you don’t want to happen and implementation is anything you do.

Every comment that addresses policy vs implementation regarding the strawman conforms fully to this truism.

NTAG seems to be happy to let ICANN mandate the 30-day Sunrise heads-up, for example, even though it would arguably fit into the definition of “policy” it uses to oppose other elements of the strawman.

NTAG, along with other commenters, has rolled out a “gotcha” mined from a letter then-brand-new ICANN CEO Fadi Chehade sent to the US Congress last September.

In the letter, Chehade said: “ICANN is not in a position to unilaterally require today an extension of the 60-day minimum length of the trademark claims service.”

I’m not sure how much weight the letter carries, however. ICANN could easily argue that its strawman negotiations mean any eventual decision to extend Claims was not “unilateral”.

As far as members of the the IPC and BC are concerned, everything in the strawman is implementation, and the LPR proposal is nothing more than an implementation detail too.

The Coalition for Online Accountability, which represents big copyright holders and has views usually in lock-step with the IPC, arguably put it best:

The existing Rights Protection Mechanisms, which the Strawman Solution and the LPR proposal would marginally modify, are in no way statements of policy. The RPMs are simply measures adopted to implement policies calling for the new gTLD process to incorporate respect for the rights (including the intellectual property rights) of others. None of the existing RPMs is the product of a PDP. They originated in an exercise entitled the Implementation Recommendation Team, formed at the direction of the ICANN Board to recommend how best to implement existing policies. It defies reason to assert that mechanisms instituted to implement policy cannot now be modified, even to the minimal extent provided in the current proposals, without invoking the entire PDP apparatus.

Several commenters also addressed the process used to create the strawman.

The strawman emerged from a closed-doors, invitation-only event in Los Angeles last November. It was so secretive that participants were even asked not to tweet about it.

You may have correctly inferred, reading previous DI coverage, that this irked me. While I recognize the utility of private discussions, I’m usually in favor of important community meetings such as these being held on the public record.

The fact that they were held in private instead has already led to arguments among even those individuals who were in attendance.

During the GNSO Council’s meeting December 20 the IPC representative attempted to characterize the strawman as a community consensus on what could constitute mere implementation changes.

He was shocked — shocked! — that registrars and registries were subsequently opposed to the proposals.

Not being privy to the talks, I don’t know whether this rhetoric was just amusingly naive or an hilariously transparent attempt to capitalize on the general ignorance about what was discussed in LA.

Either way, it didn’t pass my sniff test for a second, and contracted parties obviously rebutted the IPC’s take on the meeting.

What I do know is that this kind of pointless, time-wasting argument could have been avoided if the talks had happened on the public record.

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NameCheap resurrects anti-SOPA transfers promo

Kevin Murphy, January 14, 2013, Domain Registrars

NameCheap has decided to bring back the promotion that saw roughly 20,000 domain names transferred to it from Go Daddy, in protest of the company’s stance on US legislation, a year ago.

Its “second annual Move Your Domain Day” will be on January 22, with inbound transfers costing $3.99 (a buck cheaper than last year) on domains in the five biggest gTLDs.

It will donate $0.50 to the Electronic Frontier Foundation for every transfer, escalating to $1 and $1.50 if it gets more than 10,000 and 20,000 domains respectively.

The original promo was an opportunistic move to capitalize on Go Daddy’s support for the censor-happy Stop Online Piracy Act, which caused a great deal of controversy a year ago.

SOPA is now of course dead, and the senior Go Daddy executive who was most vocally in support of the bill, general counsel Christine Jones, is no longer with the company.

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Architelos sees sales double to $2 million in 2012

Kevin Murphy, January 14, 2013, Domain Services

New gTLD consultancy and software provider Architelos said it booked sales of $2 million in 2012, its second year in business, doubling its 2011 numbers.

The company said revenue for the year was $1.7 million. Architelos is bootstrapped and profitable.

Business was no doubt helped by the launch of TLD Sentry, its software service for managing abuse in TLD registries, which signed up Donuts and Top Level Domain Holdings as showcase clients.

The company plans to release another service, designed to help manage gTLD financials, during 2013.

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Twitter files UDRP over twitter.org

Kevin Murphy, January 14, 2013, Domain Policy

Twitter has filed a cybersquatting complaint over the domain name twitter.org, which is currently being used for one of those bogus survey scam sites.

The domain has been registered since October 2005 — six months before Twitter was created — but appears to have changed hands a number of times since then.

It’s been under Whois privacy since mid-2011, but the last available unprotected record shows the domain registered to what appears to be Panama-based law firm.

Hiding ownership via offshore shell companies is a common tactic for people cybersquatting high-profile brands.

The UDRP complaint, which looks like a slam-dunk to me, has been filed with WIPO.

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Ten registrars spanked for ignoring ICANN audit

Kevin Murphy, January 14, 2013, Domain Registrars

ICANN has sent breach notices to 10 domain name registrars for failing to respond to its ongoing contract compliance audit.

The 10 registrars with breach notices are: Crosscert, Mat Bao, DomainsToBeSeen.com, USA Webhost, Internet NAYANA Inc, Cheapies.com, Domainmonger.com, Lime Labs, Namevault.com, and Power Brand Center.

According to ICANN, these registrars failed to provide the requested documentation as required by their Registrar Accreditation Agreement.

The Contractual Compliance Audit Program is a proactive three-year effort to check that all registries and registrars are abiding by the terms of their agreements.

ICANN selected 317 registrars at random for the first year of the program. As of January 4, 22 had not responded to these notices.

Only registrars signed up to the 2009 version of the RAA are contractually obliged to respond.

Verisign, which was one of six gTLD registries selected to participate this year, has controversially refused to let ICANN audit .net, saying it is not obliged to do so.

While the .net contract does have some audit requirements, we understand they’re not as wide-ranging as ICANN’s audit envisages.

The 10 registrars have been given until February 1 to provide ICANN with the necessary information or risk losing their accreditations.

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Is .home back on ICANN’s new gTLD risk list?

Kevin Murphy, January 13, 2013, Domain Tech

While most new gTLD applicants were focused on delays to the program revealed during last Friday’s ICANN webinar, another bit of news may also be a cause for concern for .home applicants.

As Rubens Kuhl of Nic.br spotted, ICANN revealed that 11 applications have not yet passed their DNS Stability check.

SLide

That’s a reversal from November, when ICANN said that all new gTLD applications had passed the stability review.

As I noted at the time, that was good news for .home, which some say may cause security problems if it is delegated.

As Kuhl observed, there are exactly 11 applications for .home, the same as the number of applications that now appear to have un-passed the DNS Stability check.

So is ICANN taking a closer look at .home, or is it just a numerical coincidence?

The string is considered risky by many because .home already receives a substantial amount of DNS traffic at the root servers, which will be inherited by whichever company wins the contention set.

It’s on a list of frequently requested invalid TLDs produced by ICANN’s Security and Stability Advisory Committee which was incorporated by reference in the new gTLD Applicant Guidebook.

Some major ISPs, notably BT in the UK, use .home as a pseudo-TLD in their residential routers.

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Anger as ICANN delays key new gTLDs milestone

Kevin Murphy, January 11, 2013, Domain Registries

New gTLD applicants could barely disguise their anger tonight, after learning that ICANN has delayed a key deliverable in the new gTLD program — originally due in October — until March.

On a webinar this evening, program manager Christine Willett told applicants that the string similarity analysis due on all 1,917 remaining bids is not expected to be ready until March 1.

The analysis, which will decide which “contention sets” applications are in — whether .hotel must fight it out with .hotels and .hoteis, for example — had already been delayed four times.

The reasons given for the latest delay were fuzzy, to put it mildly.

Willett said that ICANN has concerns about the “clarity and consistency of the process” being used by the evaluation panel — managed by InterConnect Communications and University College London.

Under some very assertive questioning by applicants — several of which branded the continued delays “unacceptable” — Willett said:

When you don’t have a consistent process, or there are questions about the process that is followed, it invariably would put into question the results that would come out of that process…

I don’t want to publish contention sets and string similarity results that I can’t stand behind, that ICANN cannot explain, and that only frustrate and potentially affect the forward progress of the program.

See? Fuzzy.

It sounded to some applicants rather like ICANN has seen some preliminary string similarity results that it wasn’t happy with, but Willett repeatedly said that this was not the case.

It’s also not clear whether the pricey yet derided Sword algorithm for determining string similarity has had any bearing on the hold-ups.

One of the reasons that applicants are so pissed at the latest delay is that it presents a very real risk of also delaying later stages of the evaluation, and thus time to market.

Willett admitted that the remaining steps of the program — such as objections and contention resolution — are reliant on the publication of string similarity results.

“I am quite confident we will have results on string similarity by March 1,” she said. “We need to publish contention sets — we need to publish string similarity results — by March 1 in order to maintain the timeline for the rest of the program.”

March 1 is worryingly close to the March 13 deadline for filing objections, including the String Confusion Objection, which can be used by applicants to attempt to pull others into their contention sets.

Just 12 days is a pretty tight deadline for drafting and filing an objection, raising the possibility that the objection deadline will be moved again — something intellectual property interests would no doubt welcome.

The IP community is already extremely irked — understandably — by the fact that they’re being asked to file objections before they even know if an application has passed its Initial Evaluation, and will no doubt jump on these latest developments as a reason to further extend the objection window. Some applicants may even agree.

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Policy versus implementation… shouldn’t that be complexity versus simplification? [Guest Post]

Stéphane Van Gelder, January 11, 2013, Domain Policy

ICANN has just published a paper that attempts to frame what is policy and what is implementation. Now, if you’re a normal person, your natural response would be “who cares?”.

But if you’re an Icannite, chances are you’re already in a bit of a state. Because the question of what, within the ICANN decision-making process constitutes policy development, and what should be considered implementation of policies that have already been developed, is one that has grown contentious indeed in recent times.

The theory behind ICANN is that it works by bringing together groups of people from various backgrounds or with various interests and then waiting until they all take a decision. That can then become part of the sets of official guidelines that govern the way the Internet’s addressing and numbering system works.

In this obvious oversimplification of the ICANN model, the group of people are called stakeholders and the decisions they take are policies. The way they arrive at those decisions goes by the sweet name of “bottom-up, consensus-driven, policy development process”.

This is what makes ICANN such a unique governance body. One that (in theory) takes into account the opinions and inputs of all interested parties.

It is designed to prevent one view from dominating all others, be it the opinion of industry insiders, politicians or even free-speech advocates — all groups with legitimate interests, but all groups that, when they find themselves in the ICANN fish pond, have to listen to the other fish.

Except that they don’t always want to. And in recent years, as the pressure on the ICANN model has increased because of the new gTLD program, there have been several occasions when some thought it would be better to cut through (or go around) the policy development process to get things done.

This is where the policy versus implementation debate comes from. It’s a boring one to most balanced human beings, but a crucial one for those who rate ICANN and the work that goes on there as a major interest.

The new staff paper is a welcome initiative by ICANN to try and make real progress on a debate that has, up until now, simply exacerbated tensions within the ICANN community.

It’s a first step. A kind of “state of play” view of what can at present be considered policy within the ICANN system, and a first attempt at separating that from implementation.

It’s only eight pages long (and if that seems long to you, believe me, as far as ICANN papers go, this is the equivalent of a 140-character tweet), but if you can’t be bothered to read it, I’ll break it down for you in just one word: complexity.

A first step towards much needed simplification

The real issue behind this debate is the overly complex thing that ICANN has become. Don’t agree? Even though staff need to write an eight-page report just to help everyone, including themselves, understand what “policy” means?

Read the paper and marvel at the number of different processes that could be termed policy within ICANN, including something called “little p policies”, as opposed to “Capital P Policies”. Then there’s “formal policies”, “operational policies” and even “consensus policies”.

Just in setting that scene, the staff paper is useful!

Let’s hope it leads all ICANN stakeholders to the clear realization that this can’t go on any longer. ICANN must simplify its processes so that there is no longer a need to spend time and energy splitting hairs on deciding things like: when in the ICANN universe is policy making actually making policy, and when is it implementing policies that have already been made?

This is a guest post by domain name industry consultant Stephane Van Gelder of Stephane Van Gelder Consulting. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.

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Don’t panic! Crocker clarifies “end of year” new gTLD comments

Kevin Murphy, January 11, 2013, Domain Registries

ICANN chairman Steve Crocker has clarified comments made during a recent interview in which he said he expected new gTLDs to be delegated “towards the end of the year”.

Crocker told DI today that ICANN plans to put new gTLDs into the root “as quickly as possible” and “hopefully by the middle of the year”.

In response to our blog post yesterday, he said in an email:

What I wanted to convey was that by the end of the year I hope we will have seen the effects of some of the first new gTLDs delegated into the root. I didn’t mean to suggest that those first delegations wouldn’t happen until the end of the year. We are working aggressively toward our goal of delegating some of the first new gTLDs as quickly as possible, hopefully by the middle of this year. Instead, I was looking beyond the instant the strings enter the root to the time when the community will be able to see the effects.

So, there you have it.

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In major snub, Verisign refuses to let ICANN audit .net

Kevin Murphy, January 11, 2013, Domain Registries

Verisign has delivered a significant blow to ICANN’s authority by refusing to take part in its contractual compliance audit program.

The snub runs a risk of scuppering ICANN’s plans to make compliance a cornerstone of its new management’s strategy.

In a letter to ICANN’s compliance department this week, Verisign senior vice president Pat Kane said that the company has no obligation to submit to an audit of .net under its ICANN contract.

Kane wrote:

Verisign has no contractual obligations under its .net Registry Agreement with ICANN to comply with the proposed audit. Absent such express contractual obligations, Verisign will not submit itself to an audit by or at the direction of ICANN of its books and records.

The company is basically refusing to take part in ICANN’s Contractual Compliance Audit Program, a proactive three-year plan to make sure all gTLD registries and accredited registrars are sticking to their contracts.

For registries, the plan calls for ICANN to look at things like compliance with Whois, zone file access, data escrow, monthly reporting, and other policies outlined in the registry agreements.

Verisign isn’t necessarily admitting that it thinks it would not pass the .net audit, but it is sending a strong signal that it believes ICANN’s authority over it has limits.

In the program’s FAQ, ICANN admits that it does not have explicit audit rights over all contracted parties, stating:

What’s the basis for including all contracted parties, when the ‘Right to Audit’ clause isn’t present in 2001 RAA and Registry Agreements?

One of ICANN’s responsibilities is to conduct audits of its agreements in order to ensure that all contracted parties are in compliance with those agreements.

If Verisign is refusing to participate, other registries may decide they don’t want to cooperate either. That wouldn’t look good for ICANN, which has made compliance a key strategic priority.

When Fadi Chehade started as CEO last September, one of his first moves was to promote compliance boss Maguy Serad to vice president, reporting directly to him.

He told DI that he would be “bringing a lot more weight and a lot more independent management from my office to the compliance function”.

At his inaugural address to the community in Prague last June, he spoke of how he planned to bring IBM-style contract management prowess to ICANN.

Compliance is also a frequently raised concern of the Governmental Advisory Committee (though generally geared toward rogue registrars rather than registries).

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