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The 10 dumbest moments from that new TLDs Congressional hearing

Kevin Murphy, May 9, 2011, Domain Policy

The US House of Representatives last week held an oversight hearing into ICANN’s new top-level domains program.

As I may have mentioned, the House Subcommittee on Intellectual Property, Competition and the Internet hearing was set up to be pretty one-sided stuff.

It was clear from the start that ICANN senior vice president Kurt Pritz was going to have his work cut out, given how the panel of five other witnesses was loaded against him.

But as the hearing played out, it quickly became apparent that the real challenge lay not with his fellow witnesses — most of whom were either sympathetic to ICANN from the outset or occasionally forced to leap to its defense — but with the members of the Subcommittee.

While some Congressmen had merely bought into the positions of the trademark lobby, others were so far out of their depth you couldn’t even see the bubbles.

Here, in purely my personal opinion and in no particular order, are the Top 10 Dumbest Moments.

1. Chairman Goodlatte buys the FUD

Subcommittee chairman Bob Goodlatte’s opening statement appeared to have been written with significant input from the intellectual property lobby.

At the very least, he seemed to have accepted some of the more extreme and questionable positions of that lobby as uncontroversial fact.

Two examples:

With every new gTLD that is created, a brand holder will be forced to replicate their internet domain portfolio.

The roll-out of these new gTLDs will also complicate copyright enforcement, making it harder and more costly to find and stop online infringers.

He also, on more than one occasion, advocated a “trademark block list” – the Globally Protected Marks List, an idea even the ICANN Governmental Advisory Committee has now rejected.

2. Whois privacy services are Bad

A couple of Congressmen and a couple of witnesses stated that Whois accuracy needs to be enforced more stringently by ICANN, and that Whois proxy/privacy services help criminals.

I took the liberty of doing Whois queries on the official campaign web sites of all 25 members of the Subcommittee, and found that 11 of them use privacy services.

That’s 44% of the committee. Studies have estimated that between 15% and 25% of all registrations use proxy/privacy services, so Congressmen appear to be relatively hard users.

Here’s the list:

Rep. Steve Chabot, Rep. Darrell Issa, Rep. Mike Pence, Rep. Jim Jordan, Rep. Ted Poe, Rep. Jason Chaffetz, Rep. Ben Quayle, Rep. Ted Deutch, Rep. Jerry Nadler, Rep. Zoe Lofgren, Rep. Tim Griffin.

It also turns out that dei.com, the domain name Rep. Issa bragged about owning during the hearing, has phoney data in its Whois record.

Issa Whois

You can report him to ICANN here, if you’re so inclined.

It’s likely, of course, that these domains were registered by their staff, but I think we’re allowed to hold Congressmen to at least the same high standard they expect of the rest of us.

3. New TLDs will help porn typosquatters

Mei-lan Stark, an IP lawyer from Fox and the International Trademark Association, used the recent UDRP case over myfox2detroit.com as an example of abuse that could happen in new TLDs.

The domain directed visitors to a porn-laden link farm and was rightly deemed by WIPO to be confusingly similar to myfoxdetroit.com, the genuine Fox 2 Detroit site.

But, as Pritz pointed out later in the hearing, myfox2detroit.com is a .com domain. It’s not in a “new” TLD.

Fox, it transpires, has not registered the string “myfoxdetroit” in any other gTLD. Neither have the cybersquatters. It’s clearly not a brand that is, or needs to be, on Fox’s defensive registrations list.

That said, the “typo” myfoxdetroit.co, along with several other Fox .co domains, has been actually cybersquatted, so maybe Stark had a point.

4. Say Watt?

Rep. Mel Watt, the Subcommittee’s ranking member, couldn’t get a handle on why the pesky foreigners aren’t able to use their own non-Latin scripts in existing gTLDs.

I was beating my head against my desk during this exchange:

[After Stark finished explaining that she thinks IDN gTLDs are a good idea]

Watt: So, you think other languages. And that can’t be done in the .com, .net lingo as well?

Stark: Not today. Not the way the system is currently.

Watt: Yeah, well, not the way it’s done today, but what’s the difference? You all keep talking about innovation. Changing somebody’s name is not innovation. Allowing somebody to use a different name is not innovation. That’s not adding anything new to life that I can tell. Mr DelBianco, Mr Metalitz, help me here.

DelBianco: You’re right, just adding a new label to an existing page or content doesn’t really truly create innovation. However, 56% of the planet cannot even type in the domain name…

Watt [interrupting]: That’s not a function of whether you call something “Steve” or whether you call it “net” is it? You can put the Steve in front of the net, or you can put it dot-net, dot-Steve, dot-Watt, Steve, Steven…. you haven’t really created anything new have you?

DelBianco: You haven’t there, but 56% of our planet can’t use our alphabet when they read and write…

Watt [interrupting]: Tell me how this is going to make that better as opposed to what we have right now.

DelBianco: For the first time an Arabic user could type an entire email address in all Arabic, or a web site address in all Arabic.

Watt [interrupting]: Why can’t the current system evolve to do that without new gTLDs?

To Watt’s credit, he did put the witnesses on the spot by asking if any of them were opposed to new gTLDs (none were), but by the time his five minutes were up he was in serious danger of looking like a stereotypically insular American politician.

5. New TLDs are like T-shirts (or something)

Almost everything the NetChoice Coalition’s Steve DelBianco said, whether you agree with his positions or not, was sensible.

But when he started producing props from under the table, including one of the bright yellow custom “TLD-shirts” that AusRegistry International has been printing at recent ICANN meetings, I was giggling too hard to follow his train of thought.

Apparently the new TLDs program is like a T-shirt printing machine because, well… a T-shirt printing machine is more complicated than a label maker, which was the visual simile DelBianco used last time he appeared before the Subcommittee.

It was fun to see Congressmen treated like five-year-old kids for a minute. God knows some of them deserved it.

6. New TLDs will cost Fox $12 million

Stark stated that Fox has about 300 trademarks that it will need to enforce in new TLDs. Given ICANN has predicted 400 new TLDs, and estimating $100 per defensive registration, she “conservatively” estimated that Fox will have to pay $12 million to protects its marks in the first round.

Really?

The same ICANN study that estimated 400 applications being filed in the first round also estimated that as many as 200 of them are likely to be “.brand” TLDs in which Fox will not qualify to register.

A substantial proportion of applications are also likely to have a “community” designation and a restricted registrant policy that, in many cases, will also exclude Fox.

Does Fox really also need to register 300 brands in every city TLD or linguistic TLD that will be approved? Does Fox News broadcast in Riga? Does it have a Basque language TV station?

Not even World Trademark Review was convinced.

7. China is going to take over the internets

The Subcommittee spent far too much time talking around this meme before deciding that China is a sovereign nation that can do pretty much whatever it wants within its own borders and that there’s nothing much a House committee can do about it.

8. Literally everything that came out of Rep. Issa’s mouth

Former car alarm entrepreneur Darrell Issa talked confidently, as if he was the guy on the committee with the geek credentials, but pretty much everything he said was witless, impenetrable waffle.

He started with the premise that it costs a “fraction of a fraction of a fraction of a fraction of a penny” to route traffic to an IPv6 address (why this is relevant, he didn’t say), then asked:

Why, when I go to Go Daddy, do I have to pay between $10 and $10,000 for a name and not from a tenth of a cent to 10 cents for a name?

Why in the world are there so many reserved [ie, registered] names? If I want a good name from Go Daddy… the good names, that I might want, have been already pre-grabbed and marketed in an upward way, higher. Why is it that they’re not driven down? Real competition would imply that those names are driven down to a penny for a user and prohibited from being camped on in order to resell.

Issa is a Republican, so I was quite surprised to hear him apparently advocate against the free market and the rule of supply and demand in this way, and with such a poor grasp of the economics.

Issa’s premise that it costs an imperceptible fraction of a cent to resolve a domain may be true, but only if you’re talking about a single resolution. VeriSign alone handles 57 billion such queries every day.

It adds up. And that’s just resolution, ignoring all the costs carried by the registries and registrars, such as payment processing, security, marketing, Whois (and, in the case of Issa’s domains, Whois privacy and accuracy enforcement), paying staff, rent, facilities, hardware, bandwidth…

Pritz told Issa as much, but he didn’t seem interested in the answer. He instead turned to CADNA’s Josh Bourne, to ask a meandering question that, after listening to it several times, I still don’t understand.

9. Rod Beckstrom gets paid millions

Rep. Maxine Waters was very concerned that ICANN CEO Rod Beckstrom has a salary of over $2 million, “guaranteed”.

She flashed up a copy of what I believe was probably Mike Berkens’ The Domains article about ICANN salaries, from early 2010, but she clearly hadn’t read beyond the headline.

Beckstrom’s salary is $750,000 per annum. He can (and does) get a bonus if he hits his undisclosed performance targets, but it still adds up to less than $1 million a year and pales in comparison to what he’s probably going to earn when he leaves ICANN.

As Berkens accurately reported, Beckstrom has a three-year contract, so he gets a minimum of $2.2 million in total over the period he’s employed as ICANN’s CEO.

People can (and do, continually) question whether he’s earning his money, particularly when he does things like not turning up to Congressional hearings, but his salary is not set at anywhere near the level the Subcommitee heard.

10. This is so important we need more hearings (btw, sorry I’m late)

Several Congressmen called for further hearings on new gTLDs. They’re shocked, shocked, that ICANN is considering doing such a thing.

Some of those calling for further scrutiny weren’t even in the room for much of the hearing, yet saw fit to decree that the subject was so important that they needed more time to investigate.

Whether this turns out to be just more political theater remains to be seen.

US wants to delay new TLDs

Kevin Murphy, May 6, 2011, Domain Policy

With ICANN seemingly hell-bent on approving its new top-level domains program at its Singapore meeting, June 20, the US government wants to slam the brakes.

Congressmen from both sides of the aisle this week said the launch should be put on hold, and yesterday Lawrence Strickling, head of the NTIA, said he does not believe June 20 is realistic.

In a speech before the Global Internet Governance Academic Network, GigaNet, in Washington DC yesterday, Strickling said that ICANN needs to pay more heed to the advice of its Governmental Advisory Committee before it approves the program.

I commend ICANN for its efforts to respond to the GAC advice. Nonetheless, it is unclear to me today whether ICANN and the GAC can complete this process in a satisfactory manner for the Board to approve the guidebook on June 20, 2011, as ICANN has stated it wants to do.

While discussing the ongoing boogeyman threat of an International Telecommunications Union takeover of ICANN’s functions, he added:

Unless the GAC believes that ICANN has been sufficiently responsive to their concerns, I do not see how the Guidebook can be adopted on June 20th in Singapore in a manner that ensures continuing global governmental support of ICANN.

That’s incredibly strong stuff.

Strickling is suggesting that if ICANN rejects GAC advice about what goes into the new TLDs Applicant Guidebook, ICANN may be able to kiss international governmental support goodbye, potentially threatening the organization’s very existence.

And it wasn’t the only threat he raised.

The National Telecommunications and Information Administration is in the process of renewing and possibly amending ICANN’s IANA contract, which gives it the power to introduce new TLDs.

If anyone in any government is in a position to bargain directly with ICANN, it’s Strickling. He tackled this position of power head-on in his speech:

I heard from yesterday’s House hearing that some of the witnesses proposed that we use this contract as a vehicle for ensuring more accountability and transparency on the part of the company performing the IANA functions. We are seriously considering these suggestions and will be seeking further comment from the global Internet community on this issue.

I believe the only witness to raise this issue at the hearing was Josh Bourne of the Coalition Against Domain Name Abuse. He wants a full audit of ICANN before the IANA contract is renewed.

The Congressional “oversight” hearing in question, before the House Subcommittee on Intellectual Property, Competition and the Internet, was not much more than a kangaroo court.

The Representatives in attendance read from prepared statements and from questions they frequently seemed to barely understand, stated fringe opinions as fact, asked inane questions that demonstrated the loosest of grasps on the subject before them, then came to the (foregone) conclusion that the new gTLD program should be delayed pending further work on protecting trademark holders.

I’m not saying these politicians need to be subject matter experts, but if the words “intellectual property” and “the internet” are in your job description, you ought be embarrassed if the words “new BGLTs, or whatever they’re called” come out of your mouth in public.

The Subcommittee has no direct power over ICANN, of course, beyond the fact that it belongs to the legislature of the country where ICANN is based.

But Strickling does.

In his speech yesterday, he also made it quite obvious that the NTIA currently has no plans to push ICANN further along the road to full independence by signing a Cooperative Agreement instead of a procurement contract for the IANA function.

That proposal was made by ICANN CEO Rod Beckstrom, and supported by a small number of others in the industry, including Vint Cerf. But Strickling said:

The fact is, however, that NTIA does not have the legal authority to transition the IANA functions contract into a Cooperative Agreement with ICANN, nor do we have the statutory authority to enter into a Cooperative Agreement with ICANN, or any other organization, for the performance of the IANA functions.

The Beckstrom proposal always seemed like a long shot, but to have it dismissed so casually will surely be seen as a setback on the road to true ICANN independence from the US.

Domain industry blasts Congress TLD hearing

Executives from over a dozen domain name companies have slammed a US Congressional subcommittee for its plan to hold a one-sided hearing on new top-level domains.

A letter, drafted by AusRegistry International’s chief strategy officer, Krista Papac, says the hearing is “not fairly balanced” and “will present a distorted picture of the new gTLD process.”

As I reported earlier this week, the House Subcommittee on Intellectual Property, Competition and the Internet called at least four representatives of the trademark lobby to discuss new TLDs.

Kurt Pritz, ICANN’s senior vice president, is the only person testifying today who could be considered wholly supportive of the new gTLD program. The other witnesses are either advocates of trademark interests or more governmental involvement in ICANN.

Papac wrote:

It is unfortunate that of the six witnesses on the panel, none comes from the perspective of an entity that plans to run a new gTLD and could discuss the innovation, consumer choice, and job growth they will provide. Nor will the committee hear from representatives who might counter some potentially over-reaching views of the intellectual property interests, such as representatives of non-commercial entities, privacy experts, and existing domain name service providers.

The letter goes on to say that IP interests have already been heard, are afforded many protections in the program, and that new TLDs will bring benefits to the US economy.

It was signed by executives from Worldwide Media, eNom, EuroDNS, Right Of The Dot, auDA, Momentous, Othello Technology Systems, Network Solutions, AboutUs.org, Cronon, Domain Dimensions, Tucows, DomainTools, Donuts, Minds + Machines and others.

The hearing begins at 10am in Washington DC today. Coverage later.

Congress to hear from new TLD opponents

Kevin Murphy, May 2, 2011, Domain Policy

ICANN senior vice president Kurt Pritz is set to face a grilling at a Congressional hearing into new top-level domains on Wednesday, judging from the just-published witness list.

Of the other five panelists before the House Subcommittee on Intellectual Property, Competition and the Internet, all are quite critical of ICANN and/or its new gTLDs program:

Steve Metalitz, an IP lawyer and vice-chair of ICANN’s intellectual property constituency, which continues to push for even tougher rights protection mechanisms in the Applicant Guidebook.

Mei-lan Stark, senior VP of IP at Fox Group Legal, also closely involved with the International Trademark Association.

Steve DelBianco, executive director of NetChoice (of which VeriSign is a member), part of the ICANN business constituency. Last time he appeared before a Congressional committee, he called for more rights protections mechanisms and a slower new TLD rollout.

Michael Palage, lawyer/consultant and former ICANN board member. He has recently written articles calling for ICANN to pay more attention to its Governmental Advisory Committee (which, as we know, has a strong focus on IP protection nowadays).

Josh Bourne of the Coalition Against Domain Name Abuse, CADNA, one of the fiercest critics of the program. CADNA thinks new TLDs will cost businesses hundreds of millions of dollars in defensive registrations.

It’s a one-sided panel, with no strong proponents of new TLDs — such as likely applicants — among the witnesses.

Pritz is going to be in the firing line, and no mistake.

Pritz to defend ICANN in Congress

Kevin Murphy, April 27, 2011, Domain Policy

ICANN has confirmed that Kurt Pritz, its point man for the new top-level domains program, will represent the organization at a Congressional hearing next week.

As I reported yesterday, The House Subcommittee on Intellectual Property, Competition and the Internet will hold an “ICANN Generic Top-Level Domains (gTLD) Oversight Hearing” on May 4.

Pritz is senior vice president of stakeholder relations. He has led the development of the new gTLD Applicant Guidebook for the last few years.

Some, such as GNSO Council chair Stephane Van Gelder, have already expressed surprise that ICANN CEO Rod Beckstrom will not be attending.

The last time Congress dragged ICANN to Capitol Hill, in 2009, it was former CEO Paul Twomey who took the brunt of the questioning.

As Domain Name Wire recounts, ICANN took a good kicking on that particular occasion.

The focus of next week’s hearing is expected to be the intellectual property implications of new TLDs.