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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

How “final” is the new TLD guidebook?

Kevin Murphy, November 19, 2010, Domain Registries

Many would-be new top-level domain registries were pleasantly surprised a week ago when ICANN published the latest Applicant Guidebook and referred to it as the “proposed final” version.

But it was pretty clear, even on a cursory reading, that the AGB is far from complete; in some cases, text is explicitly referred to as being subject to further revision.

There’s also a public comment period ongoing, providing feedback some of which will presumably be taken on board by ICANN at its Cartagena meeting next month.

But ICANN has now provided a little bit more clarity on how “final” the “proposed final” AGB really is.

Senior veep Kurt Pritz, ICANN’s point man on the new TLD program, had this to say on Thursday’s teleconference of the GNSO Council:

There are always going to be changes to the guidebook. And so, even though this is the proposed final guidebook, we’re doing some final work on trying to find areas of accommodation with the Recommendation 6 working group and making some changes there, and working through perhaps a registry code of conduct; there are perhaps some issues with data protection there.

If folks want to consider this as final it will have to be with the understanding that the guidebook will always be changing, but having an understanding that those changes really don’t materially change the positions of applicants or the decisions of whether or not to go ahead and apply or the resources necessary to apply or sustain registry operations.

I reported on some of the issues with the Rec 6 working group, which is dealing with the “morality an public order objections” process, earlier this week.

The registry code of conduct, which sets limits on what data can be shared in co-owned registries/registrars, was new in the latest AGB draft. It looks to me like the kind of thing you’d normally expect to be debated for many months before being accepted.

But apparently future changes to these parts of the guidebook will not be substantive enough to change potential applicants’ plans.

Pritz said on the GNSO call that the current public comment period, which ends on the day of the Cartagena board meeting, could be thought of as similar to the comment periods that precede votes on ICANN’s budget.

In those cases, the board votes to approve the budget subject to changes based on public comments in advance of those changes being made.

It seems to me that the board’s options in Cartagena are to a) approve the AGB, b) approve it subject to directed changes (the “budget” scenario), or c) delay approval pending further community work.

I’m guessing option b) is the preferred outcome, but there’s no predicting what surprises could emerge over the next few weeks.

Is the new TLD program already delayed?

Kevin Murphy, November 10, 2010, Domain Registries

ICANN has missed the first target date on its recently approved new top-level domains launch timetable.

The organization was due to publish its proposed final Applicant Guidebook for public comment yesterday, but has failed to do so.

Rumor has it that it could be tomorrow or Friday before the AGB is published.

Could there be a knock-on effect? Does this mean that the process as a whole, scheduled to see the first round of new TLD applications open May 30, 2011, is already delayed?

Be warned, I’m just thinking aloud here. This is pure, idle speculation.

Two thoughts occur to me.

First, does this delay mean that ICANN will not be able to vote on the AGB at its December 10 meeting, as planned?

Second, does this delay create a scenario in which the program’s opponents will be able to lobby for further delays?

The original, quite tight timetable called for a November 9 AGB publication date and the immediate launch of a 30-day public comment period.

Doors would have closed to feedback on December 9, the day before the next ICANN board meeting.

With the AGB publication deadline now missed, and if ICANN otherwise sticks to its plan, a 30-day comment window would still be open when the board convenes in Cartagena.

Since ICANN is not in the habit of voting on issues that are still subject to open comment periods, my guess is that its best bet now will be to tighten the schedule.

While the board has seemingly okayed 30 days for community input, I’m not sure how binding that is, and my reading of ICANN’s bylaws suggests that it could be quite easily be reduced to anything as short as 21 days.

A comment period that lasted beyond December 10 would enable an organization opposed to the new TLD program to submit comments after the vote has been cast, allowing no time for the board to consider them.

This seemingly counter-intuitive move would however create grounds for a subsequent Reconsideration Request if the AGB is approved in Colombia, potentially delaying the process.

Would this be a clever strategy? I doubt it. Reconsideration Requests rarely work, and are hardly the most effective way to have your views heard within ICANN.

Still, these are strange times, and anything seems possible.

One thing is certain, given the enthusiastic reception the recent publication of the timetable received, it will be dispiriting to many today to see that ICANN has already missed its first deliverable date.

New TLD applications to open May 2011

Kevin Murphy, October 30, 2010, Domain Registries

ICANN has named the date for its planned launch of the new top-level domain application process.

According to a resolution passed at its board of directors meeting Thursday, ICANN is targeting May 30, 2011 for the opening of applications.

The proposed final version of the Applicant Guidebook is set to be published November 9, and is expected to be approved by the board at its meeting in Cartagena, December 10.

A four-month marketing and outreach period is expected to kick off January 10.

If you’re looking for the specifics of what the Applicant Guidebook will contain, you’re out of luck.

# Vertical Integration – No resolution

# GNSO New gTLD Recommendation 6 Objection Process – No resolution

# GAC Issues Letter including Geographic Names – No resolution

# Affirmation of Commitment Considerations – No resolution

Looks like we’ll have to wait until November 9 to find out what has been agreed on each of these issues.

ICANN could fast-track final new TLD guidebook

Kevin Murphy, October 29, 2010, Domain Registries

ICANN is considering a fast-track process for the final version of its new top-level domain Applicant Guidebook that could see it approved this December, documents have revealed.

Minutes and board briefing materials from ICANN’s August 5 board meeting, published yesterday, seem to demonstrate an eagerness to get the policy finalized by its Cartagena meeting.

Staff and board members favor a limited public comment period prior to the guidebook’s finalization, which could see it approved sooner rather than later.

Briefing documents (pdf, page 111 and on) say:

It is recommended that the Board consider the Final version of the Guidebook for approval at the Cartagena meeting. The final version will be posted for limited comment prior to the meeting.

The minutes of the meeting reveal a preference among staff and some directors, including chairman Peter Dengate Thrush, for this limited comment window.

The comments would be “limited” to new issues, for various reasons, including this:

A full process will bring forth every last attempt for parties to repeat positions to modify the process to be in line with their pecuniary or other interest. The optics might falsely indicate that there is no consensus around the model

ICANN’s obligation to consult its Governmental Advisory Committee would be carried out face-to-face at the Cartagena meeting, further speeding this up.

Tantalizingly, a flow-chart setting out the board’s options contains the possible launch dates for the first-round application window, but they’ve been redacted.

These documents date from August and the ICANN board has met twice since then, so things may have changed.

We’re likely to find out more about the timeline when the board resolutions from its meeting yesterday are published. I’m expecting this later today, so stay tuned.

“Beware of Hookers”, ICANN attendees told

Kevin Murphy, October 6, 2010, Domain Policy

ICANN has published a security guide for delegates planning to attend its meeting in Cartagena, Colombia, this December, which makes quite entertaining reading.

A highlight of the report (pdf), prepared by outside consultants Control Risks, warns attendees to steer clear of bar prostitutes who plan to take advantage of them.

All travelers should avoid bars which have public touts (or “spruikers”) standing outside encouraging them to enter. Many of these bars attract high levels of local prostitutes, some who intend to rob tourists by drugging them in the bar or in their hotel rooms.

Sage advice.

The report also recommends staying off the streets after 11pm, using official taxis, keeping your wallets clean of identifying information, and not resisting muggers/abductors.

Fight for your life, but not your possessions.

I’m cherry-picking the scary stuff here, obviously. In general, the report says Cartagena is fairly safe. Last year, there were only two kidnappings in the city.

Cartagena enjoys a mostly deserved reputation as one of the safe destinations for foreign travelers in Colombia. Certainly, violent crime rarely affects foreign visitors to the city.

ICANN has said that it will commission such reports when there is a concern that security at its chosen meeting locations may not be up to scratch.

I believe the new meetings security plan was introduced in response to the vague terrorism threats that clouded the Nairobi meeting earlier this year, keeping many flighty Americans at home.

ICANN to publish final new TLD rulebook before December

Kevin Murphy, September 26, 2010, Domain Registries

The ICANN board of directors said it will publish the final Applicant Guidebook for new top-level domains before the public meeting in Cartagena this December.

(UPDATE: that statement is not 100% accurate. See this post for an update.)

The decision came at the end of its two-day retreat in Trondheim, Norway yesterday, which seems to have left a number of important issues as yet unresolved.

The matters of registry-registrar cross ownership and morality and public order objections are both still unfinished business, while the intellectual property lobby has at least one bone thrown its way.

On the morality or “MOPO” problem, now known as the “Rec6” problem, the board had this to say:

The Board will accept the Rec6 CWG recommendations that are not inconsistent with the existing process, as this can be achieved before the opening of the first gTLD application round, and will work to resolve any inconsistencies.

The Rec6 working group had recommended a re-framing of the issue that would eliminate the possibility of any one government blocking a new TLD application based on its own laws and interests.

So the board resolution sounds like progress, until you realize that every decision on new TLDs made at the retreat is going to be re-evaluated in light of a shamefully eleventh hour wish-list submitted by the Governmental Advisory Committee on Thursday.

Having failed to get what it wanted through cooperation with the Rec6 working group, the GAC essentially went over the heads of the GNSO, taking its demands directly to the board.

So much for bottom-up policy making.

Resolved (2010.09.25.02), staff is directed to determine if the directions indicated by the Board below are consistent with GAC comments, and recommend any appropriate further action in light of the GAC’s comments.

In other words, the board may only accept the parts of the Rec6 recommendations that the GAC agrees with, and the GAC, judging from its latest missive, wants the first round of applications limited to purely “non-controversial” strings, whatever those may be.

The board also made no firm decision of the issue of registry vertical integration and cross-ownership. This is the entirety of what it said on VI:

The Board will send a letter to the GNSO requesting that the GNSO send to the Board, by no later than 8 October 2010, a letter (a) indicating that no consensus on vertical integration issues has been reached to date, or (b) indicating its documented consensus position. If no response is received by 8 October 2010, then the Board will deem lack of consensus and make determinations around these issues as necessary. At the time a policy conclusion is reached by the GNSO, it can be included in the applicant guidebook for future application rounds.

That’s actually borderline amusing, given that the GNSO working group on VI has recently been waiting for hints from the board about what it intends to do, rather than actually getting on with the job of attempting to create a consensus policy.

The bone I mentioned for the trademark crowd amounts to knocking a week off the length of time it takes to resolve a complaint under the Uniform Rapid Suspension policy.

The Trondheim resolutions also make it clear that the ICANN board will only be required to vote on a new TLD application in limited circumstances, such as when an objection is filed.

For all other applications, a staff mechanism for rapidly signing contracts and adding TLDs to the root will be created.

Judgment day for .xxx and .jobs

Kevin Murphy, August 5, 2010, Domain Registries

ICANN’s board of directors will today meet to decide the fate of the .xxx and .jobs top-level domains.

ICM Registry will find out whether its contract to run .xxx will have to face a potentially lengthy review by ICANN’s notoriously slow-footed Governmental Advisory Committee.

Employ Media will find out whether it will be allowed to relax its registration rules to allow non-company-name .jobs domains.

If the board decides no further GAC intervention is needed, ICM will be on a fast track to having its TLD considered for delegation in Cartagena this December.

If Employ Media’s proposal is rejected, it faces more years in the wilderness of managing a registration base in the low tens of thousands.

I have a track record of lousy predictions, but I’m going to go out on a limb again and make a low-confidence prediction that both registries are going to get what they want.

I’m not sure if it’s been noted before, but there are some strong similarities between the two TLDs and their proposals.

In the case of .xxx, some of the main opponents of the domain have been the adult industry itself. With the .jobs liberalization, the loudest outcry has come from jobs boards.

Both are essentially cases of a registry proposing something that makes good business sense for itself, but which is not necessarily what a significant portion of its would-be constituents want.

In the case of ICM, lack of support from the porn business was what originally killed off the application (at least, that was the official line), a decision that ICANN was recently forced to reverse if not recant.

In the case of .jobs, ICANN’s recent summary and analysis of the well-attended public comment period, which the board will be given prior to voting, may be a telling.

Most of the opposition to the .jobs deal was organized by the International Association of Employment Web Sites, which itself sent a long letter spelling out precisely why it thinks the scheme is bogus.

Of the 2,600 words IAEWS submitted, ICANN’s summary and analysis document quotes just two sentences, one of which is this:

“Neither human resources professionals employed in corporate human resources (‘HR’) departments nor executive search/staffing firms [which are part of the .JOBS community] are eligible for membership in IAEWS.”

The quote is pulled from the introduction of the IAEWS letter, rather than the substance of its objection, and the text in square brackets is ICANN’s own insertion.

I can’t think of any reason that text is worth quoting other than in order to dilute the significance of the IAEWS’ arguments against the .jobs liberalization.

Indeed, the document uses more wordage to describe the nature of the IAEWS letter-writing campaign than it does the content of its letters, which can’t look good for the IAEWS.

Employ Media’s response to the IAEWS letter is quoted at greater length, particularly the bit where it compares its own plans to the new gTLD program.

While they claim that the addition of occupation, industry and geographical identifiers at the second level within the .JOBS sTLD will lead to increased confusion within the marketplace, it is hard to reconcile this argument to ICANN’s extensive public policy work and implementation plan in connection with the new gTLD process. The same fundamental economic basis for going forward with the whole new gTLD initiative also applies to this .JOBS RSEP request; these issues should not be re debated and should not delay or deny approval of the .JOBS RSEP request.

If you’re an ICANN board member, aware of how much of ICANN’s credibility is tied up with the new TLD program, can you really argue with that?

Of course, board and staff don’t always agree, so I may be way off the plot here, but it seems to me that .jobs is likely to very soon become a considerably more open namespace.

.XXX domain contract could get approved next Thursday

The application for the porn-only .xxx top-level domain is on the just-published agenda for ICANN’s board meeting next Thursday.

The line item reads merely “ICM Registry Application for .XXX sTLD”, but I’m told that ICM and ICANN staff have already negotiated a new contract that the board will be asked to consider.

If the board gives it the nod, it would keep the .xxx TLD on track for possible delegation at ICANN’s Cartagena meeting in early December, meaning sales could begin as early as the first quarter 2011.

According to last month’s Brussels resolution, the board has to first decide whether the contract complies with previous Governmental Advisory Committee advice, or whether new advice is required.

If ICM jumps that hurdle, the contract will be published for public comment (fun fun fun) for three weeks to a month, before returning to the board for a vote on delegation.

Also on the agenda for the August 5 board meeting is the issue of whether to give Employ Media the right to liberalize its .jobs TLD and start accepting generic domain registrations.

In the HR industry, the .jobs debate has been just as loud as the .xxx controversy was in the porn business. Some companies think the changes would be unfair on existing jobs sites.

There are a few other intriguing items on next Thursday’s agenda.

The board will discuss the “International Dimension of ICANN”, “Data & Consumer Protection” and “UDRP Status Briefing”, all of which strike me as rather enigmatic, among other topics.

The UDRP item may refer to the ongoing debate about whether ICANN needs to have contractual relations with its UDRP providers.

Will new TLDs be delayed by the trademark owner outcry?

Yesterday’s flood of criticism from big trademark holders has put another question mark next to ICANN’s plan to finalize the new top-level domain application process this year.

Heavy-hitters including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola filed strong criticisms of the trademark-protection mechanisms in version four of the Draft Applicant Guidebook, and urged ICANN to delay the new TLD launch until the perceived weaknesses are addressed.

The concerns were echoed by the Motion Picture Association of America, the International Olympic Committee, Nestle, the International Trademark Association, Lego, the World Intellectual Property Organization, the American Intellectual Property Law Association, News Corp, the BBC and the American Bankers Association, among others.

Two ICANN registrars, MarkMonitor and Com Laude, also threw in with the anti-DAGv4 crowd. Indeed, MarkMonitor appears to have orchestrated at least a part of the trademark owner commentary.

It’s clear that many IP owners feel they’re being ignored by ICANN. Some organizations, notably WIPO and Time Warner, filed scathing criticisms of how ICANN makes policy.

These aren’t insignificant entities, even if some of their comments read like cases of throwing toys out of the pram.

After conversations with others, I know I’m not the only one who believes that this outcry could add delay to the new TLD process.

It certainly casts doubt on comments made by ICANN chair Peter Dengate Thrush in Brussels last month to the effect that the trademark protection portions of the DAG were very close to being finalized.

Trademark owners, including most of the outfits listed above, are concerned that the Uniform Rapid Suspension policy, designed to create a faster and cheaper version of the UDRP, has become bloated and now in some cases could take longer than a UDRP proceeding.

They also don’t think the Trademark Clearinghouse, a database of brands maintained by ICANN that new TLD registries would be obliged to protect, goes far enough to protect their marks. The previously proposed Globally Protected Marks List seems like a preferred alternative.

ICANN currently hopes to have the final guidebook close to readiness by its public meeting in Cartagena, Colombia, this December. Its board of directors will meet over a weekend in September to try to knock the document into shape. I don’t envy that task.

There’s a possibility, of course, that ICANN will soldier on with its time-line regardless. Dengate Thrush indicated in an interview last month that he did not want trademark issues to delay the launch any more than they have already.

Asked about the IP lobby’s concerns with the speed of the URS, he told the World Trademark Review:

I have conceptually no problem with making sure that expedited processes are available. If this one turns out to be too slow, we’ll do something else. What we can’t have is the hold up of the entire process until this is resolved.

It’s wait and see time again, but at the very least I think it’s pretty clear that the new TLD launch timeline is more in doubt today than it was 24 hours ago.