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What next for new TLDs? Part 3 – The .xxx Factor

Kevin Murphy, December 14, 2010, Domain Registries

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.
But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?
In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.
In this third post, I will look at the state of play with the .xxx TLD application, and what that means for the new TLD process.
The .xxx Factor
At some time in February, the ICANN board and its Governmental Advisory Committee plan to meet (possibly in Geneva) to discuss both the AGB and the .xxx TLD proposal.
While these are two separate issues, how .xxx is being handled may have an impact on the timetable for the AGB’s approval.
Let’s first look at what’s happening with .xxx.
As you will have almost certainly already read, the ICANN board resolved on Friday that it “intends to approve” .xxx, despite GAC advice that may be to the contrary.
The ICANN-GAC power structure is governed by an 11-point charter in ICANN’s bylaws. The last two points, J and K, deal with what happens when the two parties disagree.
Under what, for the sake of brevity, I’m going to call “GAC-J” (instead of “ICANN Bylaws section Article XI, Section 2, Paragraph 1(j)”), ICANN has to call a meeting with the GAC when it plans to disregard GAC advice.
Specifically, if the ICANN board “determines to take an action” that is not consistent with GAC advice, it has to “inform” the GAC, stating why it decided to not follow the advice, then “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”.
GAC-J has, to the best of my knowledge, never been invoked before. There isn’t even a procedure in place for handling this kind of official consultation.
But on Friday, the board stated that it intends to not follow the GAC’s advice on the .xxx application and “hereby invokes the consultation as provided for in ICANN Bylaws section Article XI, Section 2, Paragraph 1(j).”
Now that GAC-J has been invoked, the GAC and board will meet to find their “mutually acceptable solution”.
Should such a solution prove elusive, the ICANN board has to make a final decision, stating why it has disregarded the GAC’s advice. That’s handled by what I’ll call GAC-K.
What does all this have to do with new TLDs and the timetable for the publication and approval of the final Applicant Guidebook?
As ICM Registry president Stuart Lawley pointed out in a comment on CircleID, the procedures being created to resolve the .xxx dispute could very well soon be applied to the AGB.
As Lawley points out, ICANN has not yet put the GAC on notice that it plans to disagree with any of the 11 concerns outlined in the Cartagena GAC Communique.
While the Communique “assumes” ICANN has invoked GAC-J with regards new TLDs, the board has not explicitly done so.
This is uncharted territory, but I think it’s possible that this oversight (if it is an oversight) has the potential to add latency to the new AGB approval timetable.
ICANN might be well-advised to pass a resolution officially invoking GAC-J before the February bilateral meeting, in order to turn it into a bylaws-compatible consultation.
As long as it invokes the bylaws before March, the San Francisco meeting will be able to host a GAC-Board consultation under the terms of GAC-J, enabling the AGB to be approved that week.
If ICANN does not take either of these options, the GAC will be able (if it wants to be a pain) to further delay the process by demanding another inter-sessional consultation, like it just did in Cartagena.
I’ll discuss the GAC’s actual concerns in the fourth part of this post.

What next for new TLDs? Part 2 – The GAC Bottleneck

Kevin Murphy, December 14, 2010, Domain Registries

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.
But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?
In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.
In this second post I will look at the process problems presented by ICANN’s Governmental Advisory Committee.
The GAC Bottleneck
The main meta-story of Cartagena was ICANN’s turbulent relationship with its Governmental Advisory Committee, which is either maturing or (less likely) heading to towards a shattering collision.
The two big proposals that were widely expected to get the ICANN board’s nod last Friday – the new TLD final Applicant Guidebook and the .xxx TLD – were both delayed in whole or part by the GAC.
It’s become abundantly clear that the overall ICANN decision-making process has become subject to what I’m going to call the GAC Bottleneck.
If ICANN is serious about getting things done to its desired timetable in future, it will need to start paying attention to the GAC much earlier and much more seriously.
There’s been a failure to communicate over the last several years, the inherently problematic results of which were clearly embodied in sessions last Monday in which the GAC and the ICANN board discussed the definition of “advice”.
If there’s an “advisory” committee, and neither the committee nor the body its “advises” knows what “advice” means, that’s a pretty big stumbling block to constructive dialogue, which helps nobody.
The GAC believes that this historic uncertainty is the main reason why the new TLD program has hit an impasse at this late stage in the process.
The official Cartagena GAC Communique said:

the GAC considers that these [unresolved GAC concerns with the AGB] result primarily from the fact that the Board adopted the GNSO recommendations on new gTLDs without taking due account of GAC advice at that time, thereby creating a flawed process.

That’s pretty strong stuff – the GAC is basically saying that all the thousands of discussions the community has endured since 2007 have been carried out under faulty assumptions, because ICANN failed to pay heed to GAC advice when it was writing the rules of engagement for developing new TLD policy.
It’s also the reason we’re looking at the need for a GAC-Board retreat next February, at which ICANN will attempt to address the GAC’s outstanding concerns, before the AGB can be approved.
More on that in part three of this post.

Want a premium .xxx domain? Now’s your chance

Kevin Murphy, December 14, 2010, Domain Registries

ICM Registry, despite suffering another setback at the Cartagena ICANN meeting last week, has set the wheels in motion for the launch of .xxx with the announcement of a Founders Program.
If you want to get your hands on a “premium” .xxx domain without having to pay a tonne at auction, this is your chance.
ICM said it will license premium domains to organizations willing to develop and market their sites for at least two years, raising awareness of the TLD.
.CO Internet did a similar thing with .co, issuing one-character names to the likes of Go Daddy and Twitter. Other registries have had founder programs for super-short domains.
The program will be open to newcomers, as well as those who own “matching” domains in other TLDs.
The .xxx application is currently on hold, pending ICANN’s consultation with its Governmental Advisory Committee in February, but ICANN has said that it “intends” to approve it.
It will be interesting to see how many members of the adult community currently opposed to .xxx, if any, will attempt to participate as a Founder.
(Hat tip: Michele Neylon)

ICANN new TLD launch delayed (again)

Kevin Murphy, December 10, 2010, Domain Registries

ICANN’s new top-level domains program has been delayed, likely for a few months at least, after governments submitted a laundry list of issues they believe are still unresolved.
The Governmental Advisory Committee is mainly bothered that the Applicant Guidebook fails to adequately protect trademark rights and that the cost of the program could outweigh the benefits.
The ICANN board resolved at its meeting here in Cartagena earlier today to meet with the GAC for an unprecedented consultation next February.
(The meeting will also discuss the .xxx application, which I’ve reported on for The Register).
The actual board resolution is hopelessly lengthy and confusing at first reading. Take this doublethink:

ICANN considers that the solutions developed to address the overarching issues of trademark protection, mitigating malicious conduct, and root-zone scaling substantially reflect the negotiated position of the ICANN community, but ICANN will take into account public comment including the advice of the GAC.

Some delegates here tell me they think this means the book has been closed on the portions of the guidebook dealing with IP protection mechanisms, for example.
(J Scott Evans, head of the IP constituency, stormed out of the room in a huff when this part of the resolution was read aloud.)
But the text of the resolution pretty clearly states that IP protections and the other overarching issues are still open for negotiation with the GAC and could be amended based on comments filed this week.
The resolution is open to interpretation with regards these three “overarching issues”.
It does, however, refer to other issues that are explicitly unresolved in ICANN’s view, namely the treatment of geographic names and the handling of “morality and public order” objections.
Both are singled out as needing more work before they can be finalized.
What does all this mean for the launch timetable? I think it means there isn’t one. Again.

[The ICANN board] Directs staff to synthesize the results of these consultations and comments, and to prepare revisions to the guidebook to enable the Board to make a decision on the launch of the new gTLD program as soon as possible.

“As soon as possible” is either meaningless or, taken literally, means the board’s next meeting. That’s likely to be late January, if previous years are any guide.

Calls for “fast-track” for new TLDs

Kevin Murphy, December 9, 2010, Domain Registries

Some would-be top-level domain registries have started to call for ICANN to gradually phase in the launch of its new TLD program, so they can get their feet in the door early.
ECLID, a group of six “cultural and linguistic” TLD applicants, is among a number of organizations saying that ICANN could introduce a small number of non-controversial TLDs before opening the floodgates to hundreds of new extensions.
Judging that IP concerns may continue to hold up the first round of applications and that cybersquatting risks may not be as significant in domains such as .scot or .eus, ECLID’s Davie Hutchison wrote:

We ask that ICANN move forward at speed and with determination and prevent further delay causing damage to the clTLDs and other community TLDs that will enhance the richness and diversity of the Internet. Failing the courage or resolve to do that, we ask ICANN to create a fast-track process for the “safe” community TLDs which would be an excellent testing ground for the process before opening it up to the non-community based TLDs.

Calls for a “fast track” for non-controversial TLDs have also been made by members of ICANN’s Governmental Advisory Committee this week.
It’s been the GAC’s position for a few months now that “uncontroversial” community TLDs, including those with cultural and linguistic ties, should be dealt with first.
The idea doesn’t make a heck of a lot of sense to me. A phased launch would require the development of a new objective process to categorize applicants into “controversial” and “non-controversial” buckets.
For the amount of time and effort that would take, ICANN may as well just sort out the problems with the Applicant Guidebook as a whole.
Kurt Pritz, ICANN’s veep in charge of the new TLD program, addressed the feasibility of a phased launch during a press conference here in Cartagena today, noting that “it’s very difficult to have a round in which just a certain type of TLD allowed to apply”.
ICANN tried to restrict TLDs to limited communities with the 2003 round of “sponsored” TLDs, causing problems and controversies that continue to be felt seven years on.
I think it’s fairly safe to say that any rulebook that limited what TLDs could be applied for or who could apply for them would be soundly gamed by the domain name industry (cf .jobs, .xxx, .travel, etc).

Porn group threatens lawsuits over new TLDs

Kevin Murphy, December 2, 2010, Domain Registries

Porn trade group the Free Speech Coalition has added its name to the list of organizations saying that ICANN could be sued over its new top-level domains program.
In her latest letter to ICANN, FSC executive director Diane Duke has made a last-ditch attempt to get the proposed .xxx TLD rejected, and not-so-subtly raises the threat of court action:

ICM Registry promises millions of dollars of income for ICANN, assuming that income is not consumed by the inevitable litigation which ICANN will find itself a party to if the proposal is adopted

But she also writes about lawsuits targeting the new TLD program itself.
ICM’s .xxx application is being handled under the rules established for “sponsored” TLDs in 2003, rather than the rules for gTLDs in the Applicant Guidebook that will be enforced in future.
As such, .xxx is not subject to challenges such as the “morality and public order objections” envisioned by the AGB, unlike potential future applications such as .porn. Duke wrote:

What about those in the adult community who wish to apply for a gTLD? With ICANN’s policy development in regards to “Morality and Public Order” will gTLDs be held to a higher standard than the sTLD? Does ICANN believe that it is not liable for this inequity? Any company prepared to invest the substantial moneys necessary to manage a gTLD will surely take ICANN to court to demand equitable standards for their TLD application.

She goes on to suggest that ICM itself may sue to block such applicants.

Does ICANN really believe that the litigious ICM will sit idly by while a .SEX or .PORN gTLD is introduced? Is ICANN so naive to believe that the purveyor of the “sponsored” TLD, who spent in excess of $10 million to bully its way through ICANN’s processes, will stop its threats of litigation with a mere approval of the sTLD?

Is the FSC privy to the TLD aspirations of others in the adult business? Or is this just a lot of hot air born out of desperation? I guess time will tell.
The FSC becomes the third organization to publicly threaten litigation in order to get what it wants out of ICANN.
As I’ve previously reported, the International Olympic Committee and the BITS financial trade group have already made similar noises.
ICANN expects to set aside $60,000 from every $185,000 TLD application fee to deal with “risks” including the expense of defending itself from lawsuits.
The ICANN board is expected to vote on the .xxx application and the new TLD program next Friday. I expect the number of organizations threatening lawsuits will be in double figures by then.

Porn industry “ready for war” with .xxx

Kevin Murphy, December 1, 2010, Domain Registries

The Free Speech Coalition and ICM Registry are poised to do battle over the .xxx top-level domain at next week’s ICANN meeting in Cartagena, Colombia.
The FSC, which has opposed the porn-only domain for years, is trying to rally its troops with a flyer declaring it’s “Ready For War”, illustrated with a photograph apparently of Cartagena’s battlements.
(Apropos, really, given the city’s history fighting off the British and ICM’s habit of recruiting Brits for key positions.)
The FSC said on its blog:

the majority of adult Internet business owners and webmasters do not support being categorized in an Internet ghetto that will cost them millions in extra fees annually and also make it easier for anti-adult entities to censor and block their sites.

The trade group will be represented at the meeting by executive director Diane Duke and chair Jeffrey Douglas.
But ICM will have them out-gunned almost 10-to-1. President Stuart Lawley tells me the company is sending 19 people to the meeting.
Discussion of the .xxx TLD is on the ICANN board’s agenda for its meeting Friday December 10. I think it’s quite likely to be approved at that time.
The main stumbling block for ICM is ICANN’s Governmental Advisory Committee, which has expressed reservations about the domain over the years and is firmly opposed to “controversial” TLDs.
Which way the vote swings will depend greatly on what the GAC has to say, and how the power struggle it’s currently engaged in with ICANN pans out.
Here’s part of the FSC’s flyer.
Free Speech Coaltion declares war

Is ICANN too scared of lawsuits?

Kevin Murphy, November 17, 2010, Domain Registries

Arguments about the new top-level domain Applicant Guidebook kicked off with a jolt this week, when ICANN was accused of abdicating its responsibilities and being too risk-averse.
In what I think was the first case of a top ICANN staff member publicly discussing the AGB, senior veep Kurt Pritz fielded questions about “morality and public order objections” on a packed and occasionally passionate conference call (mp3).
On the call, Robin Gross of IPJustice accused ICANN’s of shirking its duties by proposing to “fob off” decisions on whether to reject controversial TLDs onto third-party experts.
She said:

I’m concerned that there’s a new policy goal – a new primary policy goal – which is the risk mitigation strategy for ICANN. I don’t remember us ever deciding that that was going to be a policy goal. But it seems that now what is in the best interest for the Internet is irrelevant. The policy goal that rules is what is in the best interest for ICANN the corporation

A cross-constituency working group (CWG) had said that controversial TLDs should be rejected only after a final nod from the ICANN board, rather than leaving the decision entirely in the hands of outside dispute resolution providers.
There was a concern that third parties would be less accountable than the ICANN board, and possibly more open to abuse or capture.
But ICANN rejected that recommendation, and others, on “risk mitigation” grounds. Explanatory notes accompanying the new AGB (pdf) say:

Independent dispute resolution is a cornerstone of the risk mitigation strategy. Without outside dispute resolution, ICANN would have to re-evaluate risks and program costs overall.

Almost a third of every new TLD application fee – $60,000 of every $185,000 – will go into a pool set aside for ICANN’s “risk costs”.
These costs were based on an estimate that there will be 500 applications, and that ICANN will need $30 million to cover risks.
These are often thought to be primarily risks relating to litigation.
There’s a fear, I suspect, that ICANN could become embroiled in more interminable .xxx-style disputes if it allows the board to make subjective calls on TLD applications, rather than hiring independent experts to make decisions based on uniform criteria.
On Monday’s conference call, Gross said that ICANN’s treatment of the CWG’s recommendations was a “really big shock”. She added:

clearly here this is just a fobbing off of that responsibility, trying to again avoid litigation, avoid responsibility rather than take responsibility and take accountability

But ICANN says that the risk mitigation strategy benefits TLD applicants by removing uncertainty from the program, as well making ICANN more credible.
Pritz said on the call:

the risk to the program is in creating a process or procedure that isn’t transparent and predictable for applicants. By what standard can a TLD be kicked out? It’s got to be: here’s the standards, here’s the decision maker and here’s the process.
When I talk about risk, it’s risk to this process.
If this process attracts a lot of litigation, and ICANN published the process and then did not follow it, or that the process wasn’t clear so that the applicant had no way of predicting what was going to happen to its application, the risk is then litigation would halt the process and undermine the ICANN model.
So it doesn’t really have anything to do with the people that are the directors or the people that are the staff; it has to do with the credibility of ICANN as a model for Internet governance.

In other words, if TLD applicants pay their fees and go into the process knowing what the rules are, and knowing that there’s little chance of being jerked around by the ICANN board, there’s less chance of the program as whole being disrupted by lawsuits.
Seems fair enough, no?

ICM buys dotxxx.com for $25,000 and unveils new slogan

Kevin Murphy, November 4, 2010, Domain Sales

ICM Registry, the would-be .xxx registry operator, has acquired the domain name dotxxx.com from a Korean domainer for $25,000, to support an upcoming marketing campaign.
The company is also expected to unveil a punny new slogan, “Let’s be adult about it”, following its recent hiring of international ad agency M&C Saatchi.
The dotxxx.com domain currently redirects to icmregistry.com, the company’s main site. The private sale used Sedo for escrow.
Given the amount of cash ICM has spent attempting to get .xxx approved over the last ten years, $25,000 is a drop in the ocean.
ICANN recently decided to refer its application to the Governmental Advisory Committee for a consultation, before it makes a final call on whether to approve it or not.

DotFree starts taking .free domain preregistrations

Kevin Murphy, November 1, 2010, Domain Registries

The DotFree Group, which plans to apply to ICANN to run .free as a top-level domain, has become one of the first would-be registries to open its doors for preregistrations.
From noon UTC today, the Czech company has made a tool available on its web site enabling users to reserve their desired strings by handing over their contact information.
Of course, there’s no guarantee any preregistration will actually turn into a .free domain – ICANN may turn down DotFree’s application or award the string to another bidder.
While the plan is to offer some .free domains free of charge, DotFree intends to hold tens (or hundreds) of thousands of “premium” strings for auction or paid-for registrations.
In other words, if you try to register any really juicy strings today, you’re out of luck.
DotFree is one of only a few unapproved TLD registries to accept preregistrations.
ICM Registry started taking .xxx preregs a few years ago, but only after it had already received ICANN’s approval (which was, of course, later revoked).
Another wannabe TLD operator, the MLS Domains Association, is charging “multiple listing service” real estate brokers many hundreds of dollars for the opportunity to own their own .mls domain name.
UPDATE: Messing around with the preregistration tool, I’ve noticed that it appears to ban any string that ends with the number 4. Presumably these will be “premium”, due to the “for” pun.