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Economist would sue ICANN if it publishes private emails

Kevin Murphy, February 14, 2018, Domain Policy

The Economist Intelligence Unit has threatened to sue ICANN if it publishes emails related to its evaluations of “community” gTLDs.

That’s according to a document published by ICANN this week, in which the organization refused to reveal any more information about a controversial probe into the Community Priority Evaluations the EIU conducted on its behalf.

EIU “threatened litigation” should ICANN publish emails sent between the two parties, the document states.

New gTLD applicant DotMusic, which failed its CPE for .music but years later continues to fight for the decision to be overturned, filed a Documentary Information Disclosure Policy request with ICANN a month ago.

DIDP is ICANN’s equivalent of a Freedom of Information Act.

DotMusic’s request among many other items sought the release of over 100,000 emails, many sent between ICANN and the EIU, that ICANN had provided to FTI Consulting during FTI’s investigation into whether the CPEs were fair, consistent and absent ICANN meddling.

But in its response this week, ICANN pointed out that its contract with EIU, its “CPE Provider”, has confidentiality clauses:

ICANN organization endeavored to obtain consent from the CPE Provider to disclose certain information relating to the CPE Process Review, but the CPE Provider has not agreed to ICANN organization’s request, and has threatened litigation should ICANN organization breach its contractual confidentiality obligations. ICANN organization’s contractual commitments must be weighed against its other commitments, including transparency. The commitment to transparency does not outweigh all other commitments to require ICANN organization to breach its contract with the CPE Provider.

DotMusic’s DIDP sought the release of 19 batches of information, which it hopes would bolster its case that both the EIU’s original reviews and FTI’s subsequent investigation were flawed, but all requests were denied by ICANN on various grounds.

In more than one instance, ICANN claims attorney-client privilege under California law, as it was actually ICANN’s longstanding law firm Jones Day, rather than ICANN itself, that contracted with FTI.

The FTI report cleared ICANN of all impropriety and said the EIU’s CPE process had been consistent across each of the gTLD applications it looked at.

The full DIDP request and response can be found here.

ICANN has yet to make a decision on .music, along with .gay, .hotel, .cpa, and .merck, all of which were affected by the CPE reviews.

CPE probe: “whitewash” or “fig leaf”?

Kevin Murphy, January 31, 2018, Domain Policy

A few weeks ago, when I was reporting the conclusions of a probe into ICANN’s new gTLD program, I wrote a prediction on a piece of paper and placed it into a sealed envelope.*

I wrote: “They’re gonna call this a whitewash.”

And I was correct! Ta-dah! I’m here all week.

The lawyer for applicants for .music and .gay gTLDs has written to ICANN to complain that a purportedly independent review of the Community Evaluation Process was riddled with errors and oversights and should not be trusted.

In a letter on behalf of dotgay LLC, Arif Ali calls the report a “whitewash”. In a letter on behalf of DotMusic, he calls it a “fig leaf”.

Both companies think that the CPE probe was designed to give ICANN cover to proceed with auctions for five outstanding gTLD contention sets, rather than to get to the bottom of perceived inconsistencies in the process.

Both of Ali’s clients applied for their respective gTLDs as “community” applicants, trying to avoid auctions by using the Community Priority Evaluation process.

During their CPEs, both carried out by the Economist Intelligence Unit, neither applicant scored highly enough to win the exclusive right to .gay or .music, meaning the next stage was to auction the strings off to the highest bidder.

After repeated complaints from applicants and an Independent Review Process finding that ICANN lacked transparency and that staff may have had inappropriate influence over the EIU, ICANN hired FTI Consulting to look into the whole CPE process.

FTI’s report was finally delivered late last year, clearing ICANN on all counts of impropriety and finding that the EIU’s evaluations had been consistent across each of the applications it looked at.

The remaining gTLDs affected by this are .music, .gay, .hotel, .cpa, and .merck.

ICANN’s board of directors is due to meet to discuss next steps this weekend, but Ali says that it should “critically evaluate the [FTI] Report and not accept its wholesale conclusions”. He wrote, on behalf of DotMusic:

The report reveals that FTI’s investigation was cursory at best; its narrow mandate and evaluation methodology were designed to do little more than vindicate ICANN’s administration of the CPE process.

It is evident that FTI engaged in a seemingly advocacy-driven investigation to reach conclusions that would absolve ICANN of the demonstrated and demonstrable problems that afflicted the CPE process.

Among the applicants’ list of complaints: their claim that FTI did not interview affected applicants or take their submissions seriously, and the fact that ICANN was less than transparent about who was conducting the probe and what its remit was.

The same letter quotes ICANN chair Cherine Chalaby, then vice-chair, saying in a January 2017 webinar that he had observed inconsistencies in how the CPEs were carried out; inconsistencies FTI has since found did not occur.

That should be enough to provoke discussion when the board meets to discuss this and other issues in Los Angeles on Saturday.

* I didn’t actually do this of course, I just thought about it, but you get my point.

DotMusic fails the “not gay enough” community test

Kevin Murphy, February 11, 2016, Domain Policy

DotMusic’s Community Priority Evaluation for the .music gTLD has failed, after the CPE panel decided the company was just trying to exploit ICANN rules to get its hands on a valuable string.

In a decision (pdf) published last night, the company score 10 of the available 16 points, four points shy of a passing score. The panel wrote:

The Panel determined that this application refers to a proposed community construed to obtain a sought-after generic word as a gTLD. As previously stated, the community as defined in the application does not have awareness and recognition among its members. Failing this kind of “cohesion,” the community defined by the application does not meet the [Applicant Guidebook’s] standards for a community.

The CPE fell apart at the first hurdle, with the panel awarding 0 out of 4 points on the “community establishment”.

It essentially ruled that the “music community” does not exist, despite frequent statements to the contrary from DotMusic and its legion of supporters.

DotMusic appears to have been condemned for the same reason as dotgay, the failed .gay community applicant.

While DotMusic and dotgay lost points on different criteria, their undoing in both cases was attempting to define a community that their respective panels judged overly broad.

DotMusic’s application included a list of 40 or more North American Industry Classification System categories of industry that it said were within its music community.

However, where it said “music lawyers” or “music accountants”, it referred to the NAICS codes for just “lawyers” and “accountants”, the panel noted.

This seems to have been responsible to a large extent for it losing its points on the “community establishment” criteria.

The CPE panel could said that while its proposed community members exhibited a “commonality of interest” there was no evidence of “cohesion” among them.

Further, no one preexisting organization could be said to cover the interests of the over-broad community as defined. The panel wrote:

There should, therefore, be at least one entity that encompasses and organizes individuals and organizations in all of the more than 40 member categories included by the application. Based on information provided in the application materials and the Panel’s research, there is no entity that organizes the community defined in the application in all the breadth of categories explicitly defined.

A knock-on effect of this was that DotMusic also dropped a point on the “community endorsement” criteria, despite having hundreds of letters of support from members of the music industry.

It dropped a further point because the string “music” only “identifies” but does not “match” its proposed community.

DotMusic will perhaps not take comfort from the fact that its losing score of 10 comprehensively beat rival community applicant Far Further by seven points.

With both community applications ruled invalid, .music should now head to auction, where there are eight applicants in total.

But .music is a bit of a passion project for DotMusic CEO Constantine Roussos — one of the few applicants who publicly announced his intention to apply long before it was possible to do so — so I think an appeal through the ICANN process is inevitable.

While DotMusic has support from powerful music industry figures, I don’t think that support extends to the kind of financial backing that will let it win a seven-to-eight-figure auction.

Don’t expect to see .music in your registrar storefront any time soon.

Radiohead backs .music community bid

Kevin Murphy, December 15, 2015, Domain Registries

Ed O’Brien, guitarist with the band Radiohead, has become the latest musician to throw his support behind DotMusic’s community-based application for the new gTLD .music.

In a letter to ICANN today (pdf), O’Brien said that if DotMusic loses its ongoing Community Priority Evaluation, it will “be setting back the world’s chances of a Fair Trade Music Industry by many years”.

“I challenge The Internet Corporation for Assigned Names and Numbers views that the global music community to which I belong does not exist,” he wrote.

He’s arguably the highest-profile musician to support DotMusic to date. Radiohead have sold over 30 million records and a few years ago O’Brien was ranked by Rolling Stone as the 59th greatest guitarist of all time.

The phrase “Fair Trade Music Industry” appears to have been coined last week at TechCrunch Disrupt by Grammy-nominated musician Imogen Heap, another one of DotMusic’s celebrity supporters.

It refers to the notion that artists should be fairly compensated for their work, opposing services such as Spotify, which reportedly pays artists less than a tenth of a cent every time one of their songs is played.

Both Heap and Radiohead are noted for their innovative uses of technology in their music (for example, listen to Radiohead’s incredible 1997 album OK Computer, bootlegs of which are available to stream for free on YouTube).

Radiohead is also known for its love-hate relationship with internet-based music business models.

In 2007, Radiohead released a new album for free on its web site, allowing fans to set their own price. But in 2013, it pulled its back catalog from Spotify, with lead singer Thom Yorke calling the service “the last desperate fart of a dying corpse”.

Its music is back on Spotify now.

But you can see why the band would support DotMusic’s application for .music, which proposes a number of novel rights protection mechanisms covering not just trademarks, but also copyright.

One interesting proposal is to ban any domain name from .music if a matching domain in another TLD has received over 10,000 copyright infringement notices from a big music industry body. This is to prevent TLD “hopping” affecting .music.

So, for example, if thepiratebay.com had received 10,000 notices, thepiratebay.music would be permanently blocked from registration.

The company is proposing a somewhat restricted namespace too, where only “community members” are allowed to register domains.

But prospective registrants merely need to self-identify as a member of one of the community’s dozens of subsets — which includes “fans” and “bloggers” — in order to register.

Parking will be prohibited, however, which would cut down on domain investor speculation.

Quite how .music will enhance the move for “fair trade” for artists is not entirely clear from O’Brien’s letter. After .music launches, there will still be hundreds of other TLDs that do not have DotMusic’s rules in place.

It’s also unlikely that the Economist Intelligence Unit, which is currently handling the CPE, will even see O’Brien’s letter.

ICANN told DotMusic (pdf) recently that the EIU “may not consider” any support letters received after October 13, which was two months after the official deadline for letters to be submitted.

DotMusic has letters of support — mostly the same letter with a different signature — from literally hundreds of musicians, trade groups, producers and publishers.

CEO Constantine Roussos told DI last week that it has more support letters than all the other “Community” gTLD applicants combined.

He said he’s confident that DotMusic’s CPE will be successful, citing positive precedent set by EIU panels in .osaka, .hotel and .radio CPE cases.

But the closest precedent we have so far is the Far Further application for .music, which comprehensively lost its CPE a year ago, scoring just three points out of the available 16, well short of the 14-point passing score.

There are differences between the applications, but Far Further’s CPE panel told it that there was no such thing as “the music community”, which sets a pretty high bar for DotMusic to leap.

If DotMusic wins its CPE, the remaining seven competing applications for the string get kicked out of the program. If it loses, it goes to an auction it has little chance of winning.

.music applicant caught using bogus Wikipedia page

Kevin Murphy, August 10, 2015, Domain Registries

DotMusic Limited, the .music applicant founded by Constantine Roussos, is using a highly suspicious Wikipedia page in its attempt to win the .music contention set.

The applicant and many supporters have been citing the Wikipedia “music community” page in support of DotMusic’s ongoing Community Priority Evaluation, despite the fact that the page draws text, without citation, from DotMusic’s own application.

The Wikipedia page was created October 21, 2014, just two weeks after rival .music applicant Far Further spectacularly failed in its own Community Priority Evaluation bid.

In March this year, DotMusic cited (pdf) a November 26 version of the Wikipedia page in whole in a controversial application change request.

Three of its supporters (Jeunesses Musicales International, International Society of Music Education, and International Federation of Musicians) have cited the Wikipedia article in DotMusic-drafted letters sent to ICANN.

An early version of the sign-and-submit form letter DotMusic is encouraging supporters to send to ICANN included the Wikipedia reference (this one, for example) but it appears to have been removed from form comments sent after the end of July.

Its web site currently says that its definition of “music community” is “confirmed by Wikipedia”.

In fact, the Wikipedia page pulls lots of its language from DotMusic’s 2012 new gTLD application, as represented in the table below.

WikipediaDotMusic
Music community is defined as a logical alliance of interdependent communities that are related to music,  The Community is a strictly delineated and organized community of individuals, organizations and business, a “logical alliance of communities of a similar nature (“COMMUNITY”)”
The music community shares a cohesive and interconnected structure of artistic expression, with diverse subcultures and socio-economic interactions between music creators, their value chain, distribution channel and fans subscribing to common ideals.  The Community and the .MUSIC string share a core value system of artistic expression with diverse, niche subcultures and socio-economic interactions between music creators, their value chain, distribution channel, and ultimately engaging fans as well as other music constituents subscribing to common ideals.
Under such structured context music consumption becomes possible regardless whether the transaction is commercial and non-commercialUnder such structured context music consumption becomes possible regardless whether the transaction is commercial and non-commercial

The phrase “logical alliance” originates in the ICANN Applicant Guidebook, as part of the CPE rules.

But that still leaves two sentences that appear to have been only lightly edited after being taken wholesale from the DotMusic application.

The Wikipedia page does not refer to domain names or ICANN, nor does it cite DotMusic as a source, despite the fact (per a Google search) that phrases such as “socio-economic interactions between music creators” have only ever appeared in .music’s application.

That’s unusual, because the citations in the article, many of which are to weighty, barely comprehensible scholarly works, give the impression of a well-researched and well-sourced piece.

Only one Wikipedia editor, known by the handle Dr. Blofeld, has contributed anything of substance to the page. Three others have provided cosmetic edits.

While a prolific editor since 2006, the closest he had previously come to writing an article about music were his contributions to a page about a green Versace dress once worn by singer Jennifer Lopez, according to Blofeld’s user page.

He seems to be much more interested in nature, architecture and film (including James Bond films, naturally).

On wonders why he had the sudden urge to scratch-build a 375-word article about the “music community”, having evidently read a dozen academic works on the topic, that fails to cite DotMusic’s application as the source of some of the text.

In summary, the evidence points towards the article being created solely for the purpose of assisting DotMusic towards a CPE victory that would save it the seven-figure sum .music is likely to fetch if it goes to auction.

There are eight applicants for .music in total.