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.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.

Anger as ICANN splashes out $160,000 on travel

Kevin Murphy, March 15, 2016, Domain Policy

Should representatives of Facebook, Orange, Thomson Reuters, BT and the movie industry have thousands of ICANN dollars spent on their travel to policy meetings?

Angry registrars are saying “no”, after it emerged that ICANN last month spent $80,000 flying 38 community members to LA for a three-day intersessional meeting of the Non-Contracted Parties House.

It spent roughly the same on the 2015 meeting, newly released data shows.

ICANN paid for fewer than 10 registries and registrars — possibly as few as two — to attend the equivalent Global Domains Division Summit last year, a few registrars told DI.

The numbers were released after a Documentary Information Disclosure Policy request by the Registrars Stakeholder Group a month ago, and published on Friday (pdf).

It appears from the DIDP release that every one of the 38 people who showed up in person was reimbursed for their expenses to the tune of, on average, $2,051 each.

The price tag covers flights, hotels, visa costs and a cash per diem allowance that worked out to an average of $265 per person.

ICANN also recorded travel expenses for another two people who ultimately couldn’t make it to the event.

The NCPH is made up of both commercial and non-commercial participants. Many are academics or work for non-profits.

However, representatives of huge corporations such as Facebook and BT also work in the NCPH and let ICANN pick up their expenses for the February meeting.

Lawyers from influential IP-focused trade groups such as the Motion Picture Association of America and International Trademark Association were also happy for ICANN to pay.

One oddity on the list is the CEO of .sucks registry Vox Populi, who is still inexplicably a member of the Business Constituency.

MarkMonitor, a corporate registrar and Thomson Reuters subsidiary that attends the Intellectual Property Constituency, also appears.

Despite $80,000 being a relatively piddling amount in terms of ICANN’s overall budget, members of the Contracted Parties House — registries and registrars — are not happy about this state of affairs as a matter of principle.

ICANN’s budget is, after all, primarily funded by the ICANN fees registries and registrars — ultimately registrants — must pay.

“CPH pays the bills and the non-CPH travels on our dime,” one registrar told DI today.

One RrSG member said only two registrars were reimbursed for their GDD Summit travel last year. Another put the number at five. Another said it was fewer than 10.

In any event, it seems to be far fewer than those in the NCPH letting ICANN pick up the tab.

It’s not entirely clear why the discrepancy exists — it might be just because fewer contracted parties apply for a free ride, rather than evidence of a defect in ICANN expenses policy.

The NCPH intersessional series was designed to give stakeholders “the opportunity, outside of the pressures and schedule strains of an ICANN Public Meeting to discuss longer-range substantial community issues and to collaborate with Senior ICANN Staff on strategic and operational issues that impact the community”, according to ICANN.

Registrars boycotting “gag order” .sucks contract

Kevin Murphy, January 25, 2016, Domain Registries

Registrars are ignoring new provisions in their .sucks contracts that they say amount to a “gag order”.

In a letter (pdf) to ICANN from its Registrars Stakeholder Group, the registrars ask for ICANN to convene a face-to-face negotiation between themselves and .sucks registry Vox Populi, adding:

Until such time, the Registrars believe that the amendments are not yet in effect and will continue to operate under Vox Populi’s existing RRA.

That means they’re working on the assumption that the controversial changes to the .sucks Registry-Registrar Agreement, sent to ICANN by Vox in December, have not yet been approved.

Vox Pop, on the other hand, has told ICANN that the changes came into effect January 6.

As we reported at the weekend, the registry is taking ICANN to formal mediation, saying ICANN breached the .sucks Registry Agreement by failing to block the changes within the permitted 15-day window.

The registrars’ letter was sent January 20, one day before Vox Pop’s mediation demand. The Vox letter should probably be read in that context.

The registrars have a problem with two aspects of the changed RRA.

First, there’s a clause that allows Vox to change the contract unilaterally in future. Registrars say this makes it a contract of “adhesion”.

Second, there’s a clause forbidding registrars taking “action to frustrate or impair the purpose of this Agreement”. Registrars read this as a “gag order”, writing:

Many Registrars not only serve as retail outlets for the purchase of domain names, but also provide consultative services to their clients on TLD extensions and their domain name portfolios. In conjunction with the provision of those services, registrars often opine on new gTLD and ccTLD extensions, the TLDs policies, pricing methodologies, security provisions and overall utility. These provisions could easily be read to inhibit such activities and restrict a registrar’s ability to offer those valuable services.

That’s referring primarily to corporate registrars working in the brand protection space, which are kinda obliged to offer .sucks for their clients’ defensive purposes, but still want to be able to criticize its policies and pricing in public.

ICANN has yet to respond to the request for a sit-down meeting between the registry and registrars.

However, given that Vox has invoked its right to mediation, it seems likely that that process will be the focus for now.

Mediation lasts a maximum of 90 days, which means the problem could be sorted out before April 20.

.sucks sends in the lawyers in “gag order” fight

Kevin Murphy, January 23, 2016, Domain Registries

Vox Populi is taking ICANN to mediation over a row about what some of its registrars call a “gag order” against them.

Its lawyers have sent ICANN a letter demanding mediation and claiming ICANN has breached the .sucks Registry Agreement.

I believe it’s the first time a new gTLD registry has done such a thing.

The clash concerns changes that Vox Populi proposed for its Registry-Registrar Agreement late last year.

Some registrars believe that the changes unfairly give the registry the unilateral right to amend the RRA in future, and that they prevent registrars opposed to .sucks in principle from criticizing the gTLD in public.

I understand that a draft letter that characterizes the latter change as a “gag order” has picked up quite a bit of support among registrars.

ICANN has referred the amended draft of the .sucks RRA to its Registrars Stakeholder Group for comment.

But Vox Pop now claims that it’s too late, that the new RRA has already come into force, and that this is merely the latest example of “a pattern on ICANN’s part to attempt to frustrate the purpose and intent of its contract with Vox Populi, and to prevent Vox Populi from operating reasonably”.

The registry claims that the changes are just intended to provide “clarity”.

Some legal commentators have said there’s nothing unusual or controversial about the “gag” clauses.

But the conflict between Vox and ICANN all basically boils down to a matter of timing.

Under the standard Registry Agreement for new gTLDs, registries such as Vox Pop are allowed to submit proposed RRA changes to ICANN whenever they like.

ICANN then has 15 calendar days to determine whether those changes are “immaterial, potentially material or material in nature.”

Changes are deemed to be “immaterial” by default, if ICANN does not rule otherwise within those 15 days.

If they’re deemed “material” or “potentially material”, a process called the RRA Amendment Procedure (pdf) kicks in.

That process gives the registrars an extra 21 days to review and potentially object to the changes, while ICANN conducts its own internal review.

In this case, there seems to be little doubt that ICANN missed the 15-day deadline imposed by the RA, but probably did so because of some clever timing by Vox.

Vox Pop submitted its changes on Friday, December 18. That meant 15 calendar days expired Monday, January 3.

However, ICANN was essentially closed for business for the Christmas and New Year holidays between December 24 and January 3, meaning there were only three business days — December 21 to 23 — in which its lawyers and staff could scrutinize Vox’s request.

Vox Pop’s timing could just be coincidental.

But if it had wanted to reduce the contractual 15 calendar days to as few business days as possible, then December 18 would be the absolute best day of the year to submit its changes.

As it transpired, January 3 came and went with no response from ICANN, so as far as Vox is concerned the new RRA with its controversial changes came into effect January 6.

However, on January 8, ICANN submitted the red-lined RRA to the RrSG, invoking the RRA Amendment Procedure and telling registrars they have until January 29 to provide feedback.

Vox Pop’s lawyer, demanding mediation, says the company was told January 9, six days after ICANN’s 15-day window was up, that its changes were “deemed material”.

Mediation is basically the least-suey dispute resolution process a registry can invoke under the RA.

The two parties now have a maximum of 90 days — until April 20 — to work out their differences more or less amicably via a mediator. If they fail to do so, they proceed to a slightly more-suey binding arbitration process.

In my opinion, ICANN finds itself in this position due to a combination of a) Vox Pop trying to sneak what it suspected could be controversial changes past its staff over Christmas, and b) ICANN staff, in the holiday spirit or off work entirely, dropping the ball by failing to react quickly enough.

While I believe this is the first time a 2012-round gTLD registry has gone to dispute resolution with ICANN, Vox did threaten to sue last year when ICANN referred its controversially “predatory” launch plans to US and Canadian trade regulators.

That ultimately came to nothing. The US Federal Trade Commission waffled and its Canadian counterpart just basically shrugged.

.sucks “gagging” registrar critics?

Kevin Murphy, January 12, 2016, Domain Registries

.sucks may be all about freedom of speech, but some registrars reckon the registry is trying to ban them from criticizing the new gTLD in public.

Vox Populi is proposing a change to its standard registrar contract that some say is an attempt to gag them.

A version of the Registry-Registrar Agreement dated December 18, seen by DI, contains the new section 2.1:

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.

It’s broad and somewhat vague, but some registrars are reading it like a gagging order.

While many retail registrars are no doubt happy to sell .sucks domains as part of their catalogs, there is of course a subset of the registrar market that focuses on brand protection.

Brand protection registrars have been quite vocal in their criticism of .sucks.

MarkMonitor, for example, last year wrote about how it would refuse to make a profit on .sucks names, and was not keen on promoting the TLD to its clients.

Asked about the new RRA language, Vox Pop CEO John Berard told DI that it was merely an attempt to clarify the agreement but provided no additional detail.

Registrars are also angry about a second substantial change to the contract, which would allow the registry to unilaterally make binding changes to the deal at will.

The new text in section 8.4 reads:

Vox Populi shall have the right, at any time and from time to time, to amend any or all terms and conditions of this Agreement. Any such amendment shall be binding and effective 15 days after Vox Populi gives notice of such amendment to the Registrar by email.

That’s the kind of thing that ICANN sometimes gets away with, but some registrars are saying that such a change would let Vox Pop do whatever the hell it likes and would therefore be legally unenforceable.

More on my Twitter.sucks reg

Kevin Murphy, December 21, 2015, Domain Registries

If you were reading on Friday, you’ll know that I brought about the registration of the domain twitter.sucks and took charge of a web site hosted at that address.

I hinted that there was a little more to the story, but couldn’t get into it.

The first part of the story is here.

What I didn’t mention was that twitter.sucks was in my This.sucks account for probably less than 10 minutes before I removed it.

I have no beef with Twitter and no particular desire to moderate a .sucks discussion forum.

After removing twitter.sucks from my account, I noticed that This.sucks again gave me the option to “register” a free .sucks domain.

So I experimentally “registered” thisdotsucks.sucks too.

Again, the domain started resolving, showed up in Whois, and the associated WordPress site went live within seconds.

At this point, I discovered that I had admin privileges for both twitter.sucks and thisdotsucks.sucks sites simultaneously.

Suspecting that I may have found a bug that would allow anyone to register an essentially unlimited number of free and potentially trademark-matching .sucks domains, I informed This.sucks of my findings in the interest of responsible bug disclosure and ended my blog post prematurely.

Late Friday, This.sucks spokesperson Phil Armstrong told me that it wasn’t a bug after all.

He said that the company allows one “do-over”. So if you register a name for free, then delete it, you get another one for free.

He also said that WordPress admin privileges for domains removed from user accounts expire after a period (I had admin rights for the twitter.sucks web site for roughly 48 hours after I deleted it from my account.)

Right now, the domain twitter.sucks still exists, registered to This.sucks as before, as does the associated web site. I have no idea if another user has taken over its administration or if it’s in some kind of limbo state.

All I know is that it’s nothing to do with me any more.

How I just registered Twitter.sucks for free in just five clicks

Kevin Murphy, December 18, 2015, Domain Registries

This morning, I caused the registration of and was given control of a web site at twitter.sucks.

I didn’t pay a thing, though I did — by checking a box linked to hidden terms and conditions — promise to pay $10,000 if I was later determined to be working for Twitter.

Ordinarily, registering a .sucks domain would have cost me over $200.

The controversial This.sucks service (which may share ownership with .sucks registry Vox Populi) has gone live and is giving out 10,000 .sucks web sites for free.

Users, who can sign up merely by connecting their Facebook or LinkedIn accounts, are able to cause This.sucks to register names on their behalf.

They are then immediately given limited control over a WordPress blog hosted at that domain, though not to the associated name servers or Whois records.

It’s actually quite a slick, streamlined service, that could quite easily dramatically increase the number of active .sucks site overnight.

But it’s going to cause no end of headaches for trademark owners.

Earlier this week, you may recall DI reporting that This.sucks seemed to have registered the .sucks names matching the brands of Twitter, Adobe, Goldman Sachs and Justin Timberlake.

It seems that this may have been a test of the This.sucks service, as I was tipped off last night that twitter.sucks was no longer registered.

Here’s how I got control over the twitter.sucks web site in just FIVE clicks.

This.sucks has a domain availability query box, just like a regular registrar. I looked up “twitter”:

This.sucks 1

Seeing that the domain was available, I went through the two-click process of allowing This.sucks to use my Facebook login credentials.

This.sucks 2

Obviously, while I used a genuine Facebook account, I see no reason why I couldn’t have used a fake one.

After connecting, I was bounced back to This.sucks and was given the ability to register twitter.sucks in a single click.

This.sucks 3

I also had to check a box confirming:

I’m a free-thinking individual, not a corporate yes-man. I agree to the terms and conditions and any penalties which may apply.

Clicking either of the T&C links, or hovering over the question mark, will introduce you to the concept of a $10,000 penalty.

This.sucks 4

That’s right — by causing This.sucks to register a .sucks domain, you agree to pay $10,000 if the company decides, in its “sole discretion” that you are affiliated with the matching trademark owner. The terms state:

Site Runners on this.sucks must be individuals who have no affiliation with the subject matter of the Site. You can’t be running the Site on behalf of a company, entity or anyone who is the subject of the Site.

As a Site Runner you agree that if you are found by this.sucks, in our sole discretion, to be in violation of this principal, that a $10,000 USD payment to This.sucks will immediately become due and payable. You will also no longer be a Site Runner with us. Your Site may also be given to a different Site Runner to run.

If you think a Site is being run by someone acting on behalf of the subject of the Site, please email us at whistleblower@this.sucks

Given that Twitter’s lawyers are probably going to hate me for doing this, I felt pretty confident in accepting this risk.

In addition, at this point This.sucks has not asked me for any payment information. If they want $10,000 off of me, they can take a hike, I figure.

So I clicked the “Register Now” button.

Bam! In under 10 seconds the domain name twitter.sucks existed in DNS, in Whois, and there was a simple WordPress web site there that I, to a significant extent, controlled.

The domain is registered to This.sucks, which makes it clear on its web site FAQ that its users — or “Site Runners” — do not actually own the domains they cause to be registered.

This.sucks 6

As administrator of the WordPress site, I am able to create and update blog posts as well as change the appearance by switching between a limited selection of themes. I can also edit and delete comments and manage registered users.

There’s a little bit more to my story — which I cannot get into for now.

For the moment, it must suffice to say that this is a whole new world for famous brand owners.

They can either pay the roughly $2,000 required to defensively register their brand in .sucks, or they can try to sneak through a free (or $0.99 per month) registration at This.sucks at the risk of being billed $10,000 if they get rumbled.

Twitter and Justin Timberlake targeted by This.sucks

Kevin Murphy, December 15, 2015, Domain Registries

This.sucks, a company with close ties to .sucks registry Vox Populi, has started registering domain names matching famous brands to itself.

Twitter, along with singer Justin Timberlake, software maker Adobe and investment bank Goldman Sachs all saw their matching .sucks domains registered by This.sucks on Friday, according to the .sucks zone file and Whois queries.

The domains twitter.sucks, goldmansachs.sucks, justintimberlake.sucks and adobe.sucks currently resolve in browsers, but only to a password-protected web site.

New York-based This.sucks says its service is in beta. It plans to give 10,000 .sucks domains away for free, and to sell them for as little as $12 per year. Its business model has not been revealed.

That’s a deep discount from their regular $250 suggested retail price, which rises to $2,500 for domains matching famous brands.

Technically, the company should have just paid around $10,000 for the four brand-matching domains it has just registered.

But it is broadly suspected that This.sucks shares ownership with Vox Populi, the .sucks registry operator, which would make this a case of the right hand paying the left.

As we uncovered in October, Vox Populi originally hosted This.sucks’ web sites and the CEO of Momentous, which founded Vox Pop, paid for its web site to be developed.

The two companies also share a physical address and a Cayman Islands lawyer.

Vox Pop has denied any involvement in This.sucks, saying it’s just another customer.

It will be interesting to see how long it takes for one of the four affected brands to file a UDRP or URS complaint on these new domains.

As far as I can tell, the .sucks namespace currently has an unblemished UDRP record.

Unlike rival Top Level Spectrum, which runs .feedback, neither Vox Pop nor This.sucks has revealed any plans to use brands belonging to third parties as part of their services.

TLS has said it plans to sell 5,000 branded .feedback domains to a third party after its sunrise period ends next month.

It has already registered fox.feedback to itself as one of its special 100-domain pre-sunrise registry allowance.

Since we last reported on .feedback a month ago, the registry appears to have also registered the names of all the current US presidential candidates — such as donaldtrump.feedback and hillaryclinton.feedback — to itself.

The sites are all live, as is santaclaus.feedback, which seeks commentary on the “fictional” character.

Forget .sucks, .feedback will drive trademark owners nuts all over again

Kevin Murphy, November 4, 2015, Domain Registries

Top Level Spectrum, the new gTLD registry behind .feedback, plans to give sell domains matching 5,000 of the world’s top brands to a third party that does not own the trademarks.

That’s one novel element of a .feedback business model that is guaranteed to drive the intellectual property community crazy in much the same way as .sucks did earlier this year.

The other piece of ‘innovation’ will see all .feedback domains — including the 5,000 brands — point by default to a hosted service that facilitates comment and criticism.

An example of such a site can be seen at www.eggsample.feedback. The registry’s CEO, Jay Westerdal, has a .feedback site at www.jay.feedback

If you agree to use the hosted service with your domain, the domain and service combined will cost a minimum of just $20 per year.

However, if you want to turn off the hosted service and use your .feedback like a regular domain, pointing to the web site of your choice, the price will ratchet up to $50 a month, or $620 a year.

Those are the wholesale prices. Both services will be offered through registrars, where some markup is to be expected.

The hosted service is being offered by Feedback SAAS LLC, a company that, judging by its web site, appears to share ownership with Top Level Spectrum, though Westerdal says the two firms have different employees.

It’s not dissimilar to the model employed by .tel, where name servers by default point to a registry-hosted service.

Unlike .tel, .feedback registrants will be able to opt out of using the SAAS service and point their domains to whatever name servers they want.

Westerdal told DI that .feedback is in the process of making a deal with a “third party” he could not yet name to have 5,000 branded .feedback domains deployed during the Early Access Period of the .feedback launch. That’s scheduled to start January 6.

“We are striking a deal to get feedback sites out there. We want everything to have feedback,” he said. “We are signing an agreement to get the ball rolling by doing a founders program to get names out there. Your favorite shoe, your pizza place, your everything.”

“The sites are all geared towards free speech and giving reviews,” he said. He said:

No trademark infringement will occur though, the sites are all geared towards free speech and giving reviews. Confusing the public that the brand is running the site will not happen, each site has a disclaimer and makes it clear the brand is not running the site.

Asked whether we were talking about a genuine third party or a shell set up by the registry, he said: “A real third party. I am not playing games.”

He said the higher pricing for the naked domain registration is intended to discourage companies from turning off the domains matching their brands.

The whole point of .feedback is to solicit feedback.

The as-yet unspecified third-party taking possession of the 5,000 brand names would not be prevented from selling the domains to the matching brand owner, or to any third parties, he said, though he would not be in favor of such a move.

He said that $20 a year to run a configurable .feedback site, with moderator privileges, is a “great deal” compared to the $300-a-month service he said consumer review site Yelp offers.

The SAAS service will make additional revenue by selling added features, suitable for enterprises, he said.

.feedback went into its sunrise period last week with a $2,000 wholesale fee — the same high price that attracted criticism for .sucks.

The original Registry Service Evaluation Process for the .feedback service hit ICANN over a year ago (pdf).

I missed it then. Sorry.

I noticed it today after corporate registrar MarkMonitor blogged about it.

Matt Serlin, VP of MarkMonitor, who blogged his opinion on .feedback’s strategy earlier today, said in an email that the .feedback strategy was “more objectionable” than he had thought, and that “[W]e would most likely look to raise to ICANN if that is his stated intent.”

.cars domains to start at $45,000, retail for $2,500

Kevin Murphy, October 29, 2015, Domain Registries

Cars Registry has set pricing for .car, .cars and .auto domains at crazy-high levels.

If you want to buy a domain in any of the three gTLDs on day one, it will cost you a whopping $45,000.

If you buy one during regular general availability, it’s likely to set you back $2,500.

The registry, a partnership of Uniregistry and XYZ.com, has set its registry fee at $2,000, according to an email sent to registrars this week.

That’s a buck higher than .sucks, one of the most expensive new gTLDs to launch to date.

The sunrise fee will be $3,000 — made up of the regular $2,000 fee plus an added $1,000. Again, that’s higher than .sucks.

The Early Access Period — which, as reported yesterday, has replaced the more usual landrush — will run for nine days with prices ranging from $45,000 to $5,000.

Compared to the usual models of XYZ.com and Uniregistry, which tend towards the mass-market, these prices are colossal.

I wonder how much the pricing was influenced by the fact that the registry has the car-related gTLD market almost entirely sewn up.

Its only potential competitor is .autos, which has been delegated for almost 18 months but has yet to even reveal its launch plans and probably isn’t going to be available to the mass market anyway.

Sunrise for all three gTLDS is due to start December 9, ending January 12. EAP will begin that day, and GA will start January 20.