It will soon be much harder for cybersquatters to take flight to another registrar when they’re hit with a UDRP complaint.
From July 31 next year, all ICANN-accredited registrars will be contractually obliged to lock domain names that are subject to a UDRP and trademark owners will no longer have to tip off the registrant they’re targeting.
Many major registrars lock domain names under UDRP review already, but there’s no uniformity across the industry, either in terms of what a lock entails or when it is implemented. Under the amended UDRP policy, a “lock” is now defined as:
a set of measures that a registrar applies to a domain name, which prevents at a minimum any modification to the registrant and registrar information by the Respondent, but does not affect the resolution of the domain name or the renewal of the domain name.
Registrars will have two business days from the time they’re notified about the UDRP to put the lock in place.
Before the lock is active, the registrants themselves will not be aware they’ve been targeted by a complaint — registrars are banned from telling them and complainants no longer have to send them a copy of the complaint.
If the complaint is dismissed or withdrawn, registrars have one business day to remove the lock.
Because these change reduce the 20-day response window, registrants will be able to request an additional four calendar days (to account for weekends, I assume) to file their responses and the request will be automatically granted by the UDRP provider.
The new policy was brought in to stop “cyberflight”, a relatively rare tactic whereby cybersquatters transfer their domains to a new registrar to avoid losing their domains.
The policy was approved by the Generic Names Supporting Organization in August last year and approved by the ICANN board a month later. Since then, ICANN staff has been working on implementation.
The time from the first GNSO preliminary issue report (May 27, 2011) to full implementation of the policy (July 31, 2015) will be 1,526 days.
You can read a redlined version of the UDRP rules here (pdf).
Nominet has processed its 10,000th cybersquatting dispute, according to the company.
Conveniently for the .uk registry’s public relations department, the complainant in the case was Aston Merrygold, a well-known former member of the pop group JLS.
He won astonmerrygold.co.uk, which was registered to London-based Martyn O’Brien, using Nominet’s 12-year-old Dispute Resolution Service.
Merrygold does not have a trademark covering his name, but the DRS panelist found that he had rights anyway, due to his relative fame and numerous TV appearances.
O’Brien registered the name in 2008, along with the names of Merrygold’s band-mates, after JLS appeared in the final of TV talent show The X Factor.
JLS had a brief but successful pop career before breaking up last year. Merrygold currently intends to go solo, which presumably inspired the DRS complaint.
Nominet also announced today that Tony Willoughby, who has been chair of the DRS panel since 2002, has stepped aside and will be replaced by DRS appeals panelist Nick Gardner.
An ICANN working group has come up with a proposal to completely replace the current Whois system for all gTLDs.
Outlined in 180 recommendations spread over 166 pages (pdf), it’s designed to settle controversies over Whois that have raged for 15 years or more, in one fell swoop.
But it’s a sprawling, I’d say confusing, mess that could turn domain name registration and the process of figuring out who owns a domain name into an unnecessarily bureaucratic pain in the rear.
That’s if the proposal is ever accepted by the ICANN community, which, while it’s early days, seems like a challenge.
It’s a complex document, which basically proposes rebuilding Whois from the ground up based on ideas first explored by George Orwell, Franz Kafka and Douglas Adams.
Having read it, I’ll do my best in this post to explain what the proposed Registration Data Service seems to entail and why I think it seems like a lot of hard work for very little benefit.
I note in advance as a matter of disclosure that the RDS as proposed would very possibly disenfranchise me professionally, making it harder for me to do my job. I explain why later in this post.
I also apologize in advance for, and will correct if notified of, any errors. It’s taken me a week from its publication to read and digest the proposal and I’m still not sure it’s all sunk in.
RDS would be a centralized Whois database covering all domains in all gTLDs, new and old, operated by a single entity.
What’s in an RDS record?
Under the hood, RDS records wouldn’t look a heck of a lot different than Whois records look today, in terms of what data they store.
There would be some new optional elements, such as social media user names, but otherwise it’s pretty much the same data as we’re used to seeing in Whois records today.
The big difference is which of these elements would be visible by default to an anonymous internet user doing a regular Whois look-up somewhere.
Some fields would be “public” and some would be “gated” or hidden. Some fields would always be public and some could be toggled between public and gated by the registrant.
Gated fields would not be visible to people doing normal Whois look-ups. To see gated data, you’d need to be accredited to a certain role (cop, trademark owner, etc) and have an RDS account.
By default, much of the data about the “registrant” — including their name, physical address, country, and phone number — would be gated.
No, you’re not reading that wrong — the name of the registrant would be hidden from regular Whois users by default. Their email address, however, would be always be public.
There would also be up to six “Purpose Based Contacts” — an Admin Contact, a Legal Contact, a Technical Contact, an Abuse Contact, a Privacy/Proxy Contact and a Business Contact.
So, for example, a registrant could specify his registrar as his technical PBC and his lawyer as his legal PBC.
The admin, legal, technical and abuse contacts would be mandatory, and would default to the registrant’s own personal contact info.
A newly registered domain would not be activated in the DNS until the mandatory PBCs had been provided.
Each of these four mandatory PBCs would have different levels of disclosure for each data element.
For example, the Admin PBC would be able to hide their mailing address and phone number (both public by default) but not their name, email address or country.
The Legal PBC would not be able to opt out of having their mailing address disclosed, but the Technical and Abuse PBCs would be able to opt out of disclosing pretty much everything including their own name.
Those are just examples. Several tables starting on page 49 of the report (pdf) give all the details about which data fields would be disclosed and which could be hidden.
I think it’s expected by the EWG that most registrants would just accept the defaults and publish the same data in each PBC, in much the same way as they do today.
“This PBC approach preserves simplicity for Registrants with basic contact needs and offers additional granularity for Registrants with more extensive contact needs,” the EWG says.
Who gets the see the hidden stuff?
In order to see the hidden or “gated” elements, you’d have to be an accredited user of the centralized RDS system.
The level of access you got to the hidden data would depend on the role assigned to your RDS account.
The name of the registrant, for example, would be available to anyone with an RDS account.
If you wanted access to the registrant’s mailing address or phone number, you’d need an RDS account that accredited you for one or more of seven defined purposes:
- Domain Name Control (ie, the registrant herself)
- Domain Name Certification (ie SSL Certificate Authorities)
- Business Domain Name Purchase/Sale (anyone who says they might be interested in buying the domain in question)
- Academic/Public Interest DNS Research
- Legal Actions (eg lawyers investigating fraud or trademark infringement)
- Regulatory/Contractual Enforcement (could be ICANN-related, such as UDRP, or unrelated stuff like tax investigations)
- Criminal Investigation/DNS Abuse Mitigation
Hopefully this all makes sense so far, but it gets more complicated.
Beware of the leopard!
In today’s gTLD environment, Whois records are either stored with the registry or the registrar. You can do Whois lookups on the registrar/y’s site, or via a third-party commercial service.
As a registrant, you need only interact with your registrar. As a Whois user, you don’t need to sign up for an account anywhere, unless you want value-added services from a company such as DomainTools.
Under RDS, a whole lot of other entities start to come into play.
First, there’s RDS itself — a centralized Whois replacement.
It’s basically two databases. One contains contact details, each record containing a unique Contact ID identifier. The other database maps Contact IDs to the PBCs for each gTLD domain name.
It’s unclear who’d manage this service, but it looks like IBM is probably gunning for the contract.
Second, there would be Validators.
A Validator’s job would be to collect and validate contact information from registrants and PBCs.
While registrars and registries could also act as Validators — and the EWG envisages most registrars becoming Validators — this is essentially a new entity/role in the domain name ecosystem.
Third and Fourth, we’ve got newly created Accrediting Bodies and Accreditation Operators.
These entities would be responsible for accrediting users of the RDS system (that is, people who want to do a simple goddamn Whois lookup).
The EWG explains that an Accrediting Body “establishes membership rules, terms of service, and application and enforcement processes, etc., for a given RDS User community.”
An Accreditation Operator would “create and manage RDS User accounts, issue RDS access credentials, authenticate RDS access requests, and provide first-level abuse handling”.
Because it’s not complicated enough already, each industry (lawyers, academics, police, etc) would have their own different combination of Accrediting Bodies and Accreditation Operators.
Who benefits from all this?
The reason the EWG was set up in the first place was to try to resolve the conflict between those who think Whois accuracy should be more strictly enforced (generally law enforcement and IP owners) and those who think there should be greater registrant privacy (generally civil society types).
In the middle you’ve got the registries and registrars, who are generally resistant to anything that adds friction to their shopping carts or causes even moderate implementation costs.
The debate has been raging for years, and the EWG was told to:
1) define the purpose of collecting and maintaining gTLD registration data, and consider how to safeguard the data, and 2) provide a proposed model for managing gTLD directory services that addresses related data accuracy and access issues, while taking into account safeguards for protecting data.
So the EWG proposal could be seen as successful if a) privacy advocates are happy and b) trademark lawyers and the FBI are happy, c) registrars/ries are happy and d) Whois users are happy.
Are the privacy dudes happy?
No, they’re not.
The EWG only had one full-on privacy advocate: Stephanie Perrin, who’s a bit of a big deal when it comes to data privacy in Canada, having held senior privacy roles in public and private sectors there.
Perrin isn’t happy. Perrin thinks the RDS proposal as it stands won’t protect regular registrants’ privacy.
She wrote a Dissenting Report that seems to have been intended as an addendum to the EWG’s official report, but it was not published by the EWG or ICANN. The EWG report makes only a vague, fleeting reference, in a footnote, to the fact that the was any dissent at all.
Milton Mueller at the Internet Governance Project got his hands on it regardless and put it out there earlier this week.
Perrin disagrees with the recommendation (outlined above) that each domain name must have a Legal Contact (or Legal PBC) who is not permitted to hide their name and mailing address from public view.
She argues, quite reasonably I think, that regular registrants don’t have lawyers they can outsource this function to, which means their own name and mailing address will comprise their publicly visible Legal PBC.
This basically voids any privacy protection they’d get from having these details “gated” in the “registrant” record of the RDS. Perrin wrote:
the purpose of the gate is to screen out bad actors from harassing innocent registrants, deter identity theft, and ensure that only legitimate complaints arrive directly at the door of the registrants. It is also to protect the ability of registrants to express themselves anonymously. Placing all contact data outside the gate defeats certain aspects of having a gate in the first place.
The EWG report envisages the use of privacy/proxy services for people who don’t want their sensitive data published publicly.
But we already have privacy/proxy services today, so I’m unclear what benefit RDS brings to the table in terms of privacy protection.
It’s also worth noting that there are no circumstances under which a registrant’s email address is protected, not even from anonymous RDS queries. So there’s no question of RDS stopping Whois-based spam.
Are the trademark dudes going to be happy?
I don’t know. They do seem to be getting a better deal out of the recommendations than the other side (there were at least three intellectual property advocates on the EWG) but if you’re in the IP community the report still leaves much to be desired.
The RDS proposal would create a great big centralized repository of domain registrant information, which would probably be located in a friendly jurisdiction such as the US.
That would make tracking down miscreants a bit easier than in today’s distributed Whois environment.
RDS would also include a WhoWas service, so users can see who has historically owned domain names, and a Reverse Query service, so that users can pull up a list of all the other domains that share the same contact field(s).
Both services (commercially available via the likes of DomainTools already) would prove valuable when collating data for a UDRP complaint or cybersquatting lawsuit.
But it’s important to note that while the EWG report says all contact information should be validated, it stops short of saying that it should be authenticated.
That’s a big difference. Validation would reveal whether a mailing address actually exists, but not whether the registrant actually lives there.
You’d need authentication — something law enforcement and IP interests have been pushing for but do not seem to have received with the EWG proposal — for that.
The EWG suggests that giving registrants more control over which bits of their data are public will discourage them from providing phony contact information for Whois/RDS.
The RDS proposes a lot more carrot than stick on this count.
But if Perrin is correct that it’s a false comfort (given that your name and address will be published as Legal PBC anyway) then wouldn’t a registrant be just as motivated to call themselves Daffy Duck, or use a proxy/privacy service, as they are today?
Are the registrar dudes going to be happy?
If the EWG’s recommendations become a reality registrars could get increased friction in their sales path, depending on how disruptive it is to create a “Contact ID” and populate all the different PBCs.
I think it’s certainly going to increase demand on support channels, as customers try to figure out the new regime.
Remember, the simple requirement to click on a link in an email is causing registrants and registrars all kinds of bother, including suspended domains, under recently introduced rules.
And there’s obviously going to be a bunch of (potentially costly) up-front implementation work registrars will need to do to hook themselves into RDS and the other new entities the system relies on.
I doubt the registrars are going to wholeheartedly embrace the proposal en masse, in other words.
Is Kevin Murphy happy?
No, I’m not happy.
It bugs me, personally, that the EWG completely ignored the needs of the media in its report. It strikes me as a bit of a slap in the face.
The “media” and “bloggers” (I’m definitely in one of those categories) would be given the same rights to gated RDS data as the “general public”, under the EWG proposal.
In other words, no special privileges and no ability to access the registrant name and address fields of an RDS record.
That can’t be cool, can it?
Murphy, brah, why you gotta cuss in your headline?
Good question. I do use swearwords on DI occasionally, but only to annoy people who don’t like them, and usually only in posts dated April 1 or in stories that seem to deserve it.
This post is dated June 13.
I think I’ve established that the EWG’s proposal as it stands today is a pretty big overhaul of the current system and that it’s not immediately obvious how the benefits to all sides warrant the massive effort that will have to be undertaken to get RDS to replace Whois.
But the clusterfuckery is going to begin not with the implementation of the proposal, but with the attempt to pass it through the ICANN process.
The proposal has to pass through the ICANN community before becoming a reality.
The Expert Working Group has no power under the ICANN bylaws.
It was created by Chehade while he was still relatively new to the CEO’s job and did not yet appreciate how seriously community members take their established procedures for creating policy.
I think it was a pretty decent idea — getting a bunch of people in a room and persuading them to think outside the box, in an effort to find radical solutions to a a long-stagnant debate.
But that doesn’t change the fact that the EWG’s proposals don’t become law until they’ve been subject to the Generic Names Supporting Organization’s lengthy Policy Development Process.
Some GNSO members were not happy when the EWG was first announced — they thought their sovereignty was being usurped by the uppity new CEO — and they’re probably not going to be happy about some of the language the EWG has chosen to use in its final report.
The EWG said:
The proposed RDS, while not perfect, reflects carefully crafted and balanced compromises with interdependent elements that should not be separated.
The RDS should be adopted as a whole. Adopting some but not all of the design principles recommended herein undermines benefits for the entire ecosystem.
It’s actually quite an audacious turn of phrase for a working group with no actual authority under ICANN bylaws.
It sounds a bit like “take it or leave it”.
But there’s no chance whatsoever of the report being adopted wholesale.
It’s going into the GNSO process, where the same vested interests (IP, LEA, registry, registrar, civil society) that have kept the debate stagnant for the duration of ICANN’s existence will continue to try (and probably fail) to come to an agreement about how Whois should evolve.
Clear-cut cases of cybersquatting seem to be among those .xyz domain names that Network Solutions has registered to its customers without their explicit request.
Some of the domains I’ve found registered in .xyz, via NetSol to the registrants of the matching .com or .net names, include my-twitter.xyz, facebook-liker.xyz and googledia.xyz.
They’re all registered via NetSol’s Whois privacy service, which lists the registrant’s “real” name in the Whois record, but substitutes mailing address, email and phone number with NetSol-operated proxies.
I think the chance of these names being paid for by the registrant is slim. It seems probable that many (if not all) of the squatty-looking names were registered via NetSol’s promotional program for .xyz.
As previously reported, NetSol has been giving away domain names in .xyz to owners of the matching .com names. Tens of thousands of .xyz names seem to have been registered this way in the last week.
The “registrants” did not have to explicitly accept the offer. Instead, NetSol gave them the option to “opt-out” of having the name registered on their behalf and placed into their accounts.
But it’s not clear how much, if any, support NetSol has received from the registry, XYZ.com. CEO Daniel Negari told Rick Schwartz, in a coy interview last week:
The Registry Operator is unable to “give away” free domain names. I never even saw the email that the registrar sent to its customers until I discovered it on the blogs.
The opt-out giveaway has also prompted speculation about NetSol’s right to register domains without the explicit consent of the registrant, both under the law and under ICANN contract.
Under the Registrar Accreditation Agreement, in order to register a domain name, registrars “shall require” the registrant “to enter into an electronic or paper registration agreement”.
That agreement requires the registrant to agree to, among many other things, the transfer or suspension of their domains if (for example) they lose a UDRP or URS case.
But that doesn’t seem to be happening with the opt-out names,
Barry Shein, president of The World, had shein.xyz registered on his behalf by NetSol on Saturday. He already owns shein.com, also registered with NetSol.
NetSol’s email informing him of the registration, which Shein forwarded to DI, reads as follows:
Dear Valued Network Solutions Customer,
Congratulations, your complimentary SHEIN.XYZ domain has arrived!
Your new .XYZ domain is now available in your Network Solutions account and ready to use. To go along with your new .XYZ domain, you have also received complimentary access to Professional Email and Private Registration for your .XYZ domain.
If you choose not to use this domain no action is needed and you will not be charged any fees in the future. Should you decide to keep the domain after your complementary first year, simply renew it like any other domain in your account.
We appreciate your business and look forward to serving you again.
Network Solutions Customer Support
Importantly, a footnote goes on to describe how NetSol will take a refusal to opt out as “continued acceptance” of its registration agreement:
Please note that your use of this .XYZ domain name and/or your refusal to decline the domain shall indicate acceptance of the domain into your account, your continued acceptance of our Service Agreement located online at http://www.networksolutions.com/legal/static-service-agreement.jsp, and its application to the domain.
So, if you’re a NetSol customer who was picked to receive a free .xyz name but for whatever reason you don’t read every marketing email your registrar sends you (who does?) you’ve agreed to the registration agreement without your knowledge or explicit consent, at least according to NetSol.
I am not a lawyer, but I’ve studied enough law to know that this is a dubious way to make a contract. Lawyers I’ve shown this disclaimer to have laughed out loud.
Of course, because each registrant already owns a matching .com, they’ve already accepted NetSol’s registration agreement and terms of service at least once before.
This may allow NetSol to argue that the initial acceptance of the contract also applies to the new .xyz domains.
But there are differences between .com and .xyz.
Chiefly, as a new gTLD, .xyz registrants are subject to policies that do not apply to .com, such as the Uniform Rapid Suspension policy.
URS differs from UDRP in that there’s a “loser pays” model that applies to complaints involving over 15 domains.
So these .xyz registrants have been opted into a policy that could leave them out of pocket, without their explicit consent.
Of course, we’re talking about people who seem to be infringing famous trademarks in their existing .com names, so who gives a damn, right?
But it does raise some interesting questions.
Who’s the registrant here? Is it the person who owns the .com, or is it NetSol? NetSol is the proxy service, but the .com registrant’s name is listed in the Whois.
Who’s liable for cybersquatting here? Who would Twitter file a UDRP or URS against over my-twitter.xyz? Who would it sue, if it decided to opt for the courts instead?
If there’s one thing we’ve learned from the last six months of new gTLDs, it’s that predictions about massive levels of defensive registrations were way off the mark.
New gTLDs are not seeing anywhere near the same numbers of sales during sunrise periods as their predecessors.
I have managed to collate some data that I think gives a pretty accurate picture of how many sunrise registrations are being made and therefore how much new gTLDs are costing trademark owners.
About 128 gTLDs have finished their sunrise periods to date, and I have the sunrise sales figures for 101 of them. All of these numbers were provided by the respective registry operator.
The biggest sunrise, per these numbers, was for .clothing, which had 675 registrations. That’s 5.97% of the 11,301 overall names in the .clothing zone file today, over three months after launch.
At the other end of the scale is شبكة. (“.shabaka” or “.web” in Arabic), which sold just five names during its sunrise, the first of the program, which was restricted to Arabic trademarks.
The total number of sunrise sales across across all 101 gTLDs is 14,567, making for an average of 144.2 domains per new gTLD sunrise.
Sunrise currently accounts for 1.87% of all names in these 101 gTLDs, but that’s an artificially high number because some of the gTLDs I have sunrise numbers for are not yet in general availability.
But compare the real numbers to .co, which sold over 11,000 names at sunrise when it launched in summer 2010, or .xxx, which took 80,000 sunrise applications in late 2011.
Trademark owners are not defensively registering with anywhere near the same fervor as they once did.
If that 144.2 average names holds true for all 128 gTLDs that have completed sunrise, we can approximate that 18,461 names have been sold during sunrise periods to date.
I should point out that I’m assuming in these calculations that all sunrise registrations are “defensive” and that brand owners are not defensively registering during general availability.
Neither of those assumptions will be fully true.
Not all sunrise sales are made to genuine brand owners, of course. Some number of generic dictionary domains have been registered by people who obtained trademarks just in order to get the matching domain.
And only a psychic could know whether a GA registration is “defensive” or not at this stage.
But let’s assume that every sunrise reg went to a genuine brand owner. How much have they had to pay for these names?
It’s difficult to calculate a precise dollar value because each registry has a different pricing scheme and sometimes the price of a name can vary even within a specific given TLD.
I looked to the prices listed at 101domain, which has pretty exhaustive coverage of new gTLDs, for a guide.
The average first-year cost for a sunrise registration in the 75 or so new gTLDs currently being sold to trademark owners at 101domain is a little shy of $165.
Assuming that’s a good guide for pricing in sunrise periods that have already closed, we can calculate that 18,461 names at $165 a pop equals $3,046,089 out of the pockets of trademark owners in the first year.
But the sunrise fees are not the only costs, of course. In order to participate in a sunrise you must first register your mark in the Trademark Clearinghouse.
There are 30,251 marks registered in the TMCH, according to the TMCH itself. At $150 a pop — the minimum you can pay for a TMCH registration — that’s $4,537,650 spent on defensive measures.
Add in the cost of the sunrise registrations and a generous $100,000 to cover the cost of the 50 Uniform Rapid Suspension cases that have been filed to date and the total cost to brand owners so far over the first 128 new gTLDs comes to $7,683,739.
Whether this is “a lot” or not probably depends on your perspective.
It’s certainly not the billions of dollars that were being predicted by some as recently as last year.
In September the Better Business Bureau and the Coalition Against Domain Name Abuse speculated that 600 “open” new gTLDs could lead to $10 billion being spent on defensive registrations.
That statement was made in a press release calling for stronger cybersquatting legislation in the US.
But if 101 open gTLDs leads to $3,046,089 being spent, 600 such gTLDs should lead to a total cost of about $18 million, not including the fixed TMCH costs (which probably won’t grow very fast in future).
That’s not the same ballpark, not the same league, not even the same sport.