Latest news of the domain name industry

Recent Posts

ICANN is about as fast as a pregnant elephant

Kevin Murphy, May 24, 2012, Domain Policy

Making a binding policy at ICANN takes about the same amount of time as gestating a human fetus, but only when the organization and community are working at their absolute fastest.

It’s much more often comparable to an elephant pregnancy.

That’s according to a timetable researched by ICANN senior policy director Marika Konings and circulated to the GNSO Council this week.

Konings found that the latest iteration of the GNSO’s Policy Development Process has to last for a bare minimum of 263 days, three days shorter than the average human pregnancy.

However, that deadline would only be met if ICANN staff were fully resourced, all community participants were firing on all cylinders, and there was full agreement about the policy from the outset.

That’s obviously a completely fanciful, largely theoretical scenario.

The more realistic estimated average time for a PDP to run to completion – from the GNSO Council kick-starting the process with a request for an Issue Report to the ICANN board voting to approve or reject the policy – is 620 days, Konings found.

That’s slightly slower than the gestation period of an Asian elephant.

In other words, if some hypothetical policy work were to start in the GNSO today, we could not reasonably expect to see an outcome one way or the other until February 3, 2014.

Konings’ findings were accompanied by an assessment of eight relatively recent PDPs, which took between 415 days and 1,073 days to reach a board vote. The median time was 639 days.

Some GNSO Councilors think ICANN needs a fast-track PDP for no-brainer policies. I tend to agree.

The Olympics and the death of the GNSO, part deux

Kevin Murphy, March 26, 2012, Domain Policy

ICANN’s GNSO Council today narrowly voted to approve controversial special brand protections for the Olympic and Red Cross movements in the new gTLD program.

The vote this afternoon was scheduled as an “emergency” measure after the Council’s dramatic showdown at the ICANN public meeting in Costa Rica earlier this month.

Then, the Non-Commercial Stakeholders Group forced a deferral of the vote on the grounds that ICANN’s proper bottom-up policy-making processes had not been followed.

Today, a virtually identical motion barely squeaked through, turning on just a single vote after all six NCSG councilors abstained in protest.

It was a fairly tense discussion, as these things go.

“This is a sham of a proposal cooked up by a couple of lobbyists and shoved down the GNSO’s throat and that’s why I’m abstaining,” said Robin Gross, sitting in for absent councilor Wendy Seltzer.

“I’m abstaining to avoid the downfall of the GNSO Council,” said fellow NCSG councilor Rafik Dammak.

Essentially, the non-coms are upset that the decision to give special protection to the Olympics, Red Cross and Red Crescent appeared to be a top-down mandate from the ICANN board of directors last June.

(The board was itself responding to the demands of its Governmental Advisory Committee, which had been lobbied for special privileges by the organizations in question.)

ICANN policies are supposed to originate in the community, in a bottom-up fashion, but in this case the normal process was “circumvented”, NCSG councilors said.

Rather than bring the issue of special protection to the GNSO constituencies of which they are members, the IOC and Red Cross went directly to national governments in the GAC, they said.

The motion itself is to create a new class of “Modified Reserved Names” for the new gTLD program’s Applicant Guidebook, comprising solely of strings representing the Olympic and Red Cross.

Unlike the current version of the Guidebook, the International Olympic Committee and Red Cresent and Red Cross would actually be able to apply for their own brands as gTLDs.

The Guidebook would also give these Modified Reserved Names the same protection as ICANN itself in terms of string similarity – so Olympus might have a problem if it applies for a dot-brand.

Of course, the GNSO Council resolution does not become law unless it’s approved by the ICANN board of directors and implemented by staff in the Applicant Guidebook.

With the March 29 and April 12 application deadlines approaching, there’s a limited – some might say negligible – amount of time for that to happen if the GNSO’s work is to have any meaning.

That said, ICANN chair Steve Crocker said on more than one occasion during the Costa Rica meeting that he wants the board to be more flexible in its scheduling, so it’s not impossible that we’ll see an impromptu board meeting before Thursday.

Olympic showdown spells doom for ICANN, film at 11

Kevin Murphy, March 19, 2012, Domain Policy

ICANN’s 43rd public meeting, held in Costa Rica last week, was a relatively low-drama affair, with one small exception: the predicted death of ICANN’s Generic Names Supporting Organization.

The drama went down at the GNSO Council’s meeting last Wednesday – or “the day that everyone is going to remember as the downfall of the current GNSO Council” as vice-chair Jeff Neuman put it.

It had all the elements one might expect from an ICANN showdown: obscure rules of engagement, government meddling, special interests, delayed deadlines, whole oceans of acronym soup, commercial and non-commercial interests facing off against each other…

…and it was ultimately utterly, utterly pointless and avoidable.

The GNSO Council – which is responsible for forwarding community policies to ICANN’s board of directors – was asked to vote on a resolution giving special trademark protections to the International Olympic Committee and Red Cross and Red Crescent movements.

The resolution would have made it possible for the IOC/RC/RC organizations to apply for new gTLDs such as .olympic and .redcross while also disallowing confusingly similar strings from delegation.

The motion was created by a Drafting Team on the instruction of the ICANN board of directors, itself responding to a request from a heavily lobbied Governmental Advisory Committee.

The timing of the vote was crucial – the GNSO Council was not set to meet again until April 12, coincidentally the same date that ICANN stops accepting applications for new gTLDs.

If the vote didn’t happen last week, the IOC and Red Cross could have been basically banned from applying for new gTLDs until the second application round, years from now.

Confusingly similar strings would be eligible for delegation in the first round, however, which could mean both organizations would be locked out of the program permanently.

The resolution enjoyed broad support and was set to attract positive votes from every constituency group with the exception of the Non-Commercial Stakeholders Group.

The Non-Coms were unhappy that the Drafting Team recommendations underlying the resolution were, and still are, open for public comment.

While it’s not a unanimous view, they’re also ideologically opposed to the idea that the IOC and Red Cross should get special protection when a cheap way to object to confusing gTLDs already exists.

And the NCSG is far from alone in its concern that the decision to grant special privileges to these groups was a top-down decree from the ICANN board, lobbied for by the GAC.

Rather than simply voting “no”, however, the NCSG decided instead to force a deferral of the vote.

NCSG councilor Rafik Dammak said the resolution was “questionable on the merits and contrary to ICANN’s processes” and said the group had decided it had “no option but to defer this motion at least until the public comment period is closed”.

The GNSO Council has an unwritten but frequently used convention whereby any stakeholder group request to defer a vote until the next meeting is honored by the chair.

Barely a Council meeting goes by without one stakeholder group or another requesting a deferral. Usually, it’s requested to give a constituency group more time to study a proposal.

“The deferral request is intended to give people time to consider motions,” Council chair Stephane Van Gelder told Dammak. “The statement you just read is a statement against the motion itself.”

As Van Gelder noted, the NCSG did not have the usual excuse. Drafting Team chair Jeff Neuman had spent a few weeks prior to Costa Rica making damn sure that every stakeholder group, as well as the ICANN board, knew exactly what was coming down the pike.

As a veteran GNSO wonk, Neuman knew that a Non-Com deferral was likely. Even I predicted the move over a week before the Costa Rica meeting kicked off.

He was a little pissed off anyway. Neuman said:

For us to not be able to vote today is a failure. It’s a failure of the system under the guise of claiming you want more public comment. It’s a convenient excuse but in the end it’s a failure – nothing more, nothing less. This is a slap in the face to the governments that have asked us to decide.

You already know how you’re going to vote, it’s clear the vote is going to be no, so why don’t you stand behind your vote and vote now and vote no. That is what you really should be doing.

I want everyone to remember today – March 14, 2012 – because it this is the day that everyone going to remember as the downfall of the current GNSO Council as we know it and the policy process as we know it. Mark my words, it will happen. The GAC has asked us to act and we have failed to do so.

See? Drama.

Neuman noted that the deferral tradition is an unwritten politeness and called for the Council to vote to reject the NCSG’s request – an unprecedented move.

Van Gelder was clearly uncomfortable with the idea, as were others.

NCSG councilor Bill Drake said Neuman’s call for a vote on the deferral was “absolutely astonishing”.

“I never would have imagined I could say ‘well I don’t like this, this annoys me’ and so I’m going to demand we get a vote together and try to penalize a minority group that’s standing alone for some principle,” he said. “If that’s how we going to go about conducting ourselves perhaps this is the end of the Council.”

The Non-Com position also found support from other constituencies.

While Mason Cole of the Registrars Stakeholder Group said he would have voted in favor of the resolution, he said the way the policy was created looked like “a circumvention of the bottom-up policy development process”.

To cut a long story short (too late), after a spirited debate that lasted over an hour Van Gelder honored the NCSG deferral request, saying “something that we’ve always allowed in the past for everyone else should not be overturned in this instance”.

This would have pushed the vote out to the April 12 meeting — the NCSG would have effectively killed off the resolution purely by virtue of the new gTLD program timetable.

Neuman, however, had already invoked another quirk of the GNSO rules of engagement, demanding an emergency Council teleconference to vote on the resolution.

That’s now scheduled for March 26. Assuming the resolution is approved, the ICANN board will have just three days to rubber-stamp it before ICANN’s TLD Application System stops accepting new users.

If the Olympic or Red Cross organizations have any plans to apply for new gTLDs matching their brands, they’re going to have to be very quick.

Frankly, the IOC/RC issue has been a bit of a clusterfuck from beginning to end. This is one of those cases, it seems to me, in which every party involved is wrong.

The GAC was wrong to demand unnecessary special protections for these bodies back in June.

The ICANN board of directors was wrong to overturn established bottom-up policy when it gave the GAC what it wanted at the Singapore meeting.

The ICANN staff implementation that made it into the Applicant Guidebook last September was wrong and full of loopholes.

The Drafting Team was wrong (albeit through no fault of its own) to assume that it was refining established law rather than legislating.

The GNSO Council was wrong to consider a resolution on a policy that was still open for public comment.

The Non-Coms were wrong to abuse the goodwill of the Council by deferring the vote tactically.

There are probably a few typos in this article, too.

But does it spell the end of the GNSO?

I don’t think so. I suspect Neuman’s doomsaying theatrics may have also been somewhat tactical.

The GAC, which wields the hypothetical kill-stick, has yet to say anything about the drama. This may change if the GAC doesn’t get what it wants by the Prague meeting in June, but for now the GNSO is, I believe, safe.

UDRP reform put on hold for four years

Kevin Murphy, December 20, 2011, Domain Policy

ICANN’s cybersquatting rules, including the Uniform Dispute Resolution Policy, will be reviewed and possibly reformed, but probably not until 2016 at the earliest.

The Generic Names Supporting Organization Council voted last Thursday to put the start of UDRP reform on hold until 18 months after the first new top-level domains go live.

The review will also take into account other cybersquatting policies including Uniform Rapid Suspension, which will be binding on all new gTLD registries but has yet to be be tested.

This is the relevant part of the resolution:

the GNSO Council requests a new Issue Report on the current state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to, the UDRP and URS, should be delivered to the GNSO Council by no later than eighteen (18) months following the delegation of the first new gTLD.

An Issue Report is compiled by ICANN staff and often leads to a Policy Development Process that creates policies binding on registries, registrars and ultimately registrants.

Because the first new gTLDs are not expected to be delegated until the first quarter of 2013 at the earliest, the Issue Report would not be delivered until half way through 2014.

After ICANN public comment and analysis, the GNSO Council would be unlikely to kick off a PDP until the first half of 2015. The PDP itself could take months or years to complete.

In short, if UDRP is going to be reformed, we’re unlikely to see the results until 2016.

The Council resolution, which was in line with Governmental Advisory Committee advice, was proposed by the registries, following many months of ICANN public outreach and discussion.

Non-commercial users in the GNSO were most strongly in favor of an accelerated timetable, but a request to reduce the 18-month breather to a year failed to find support.

The Intellectual Property Constituency had proposed an amendment that would have kicked off the process after 100 UDRP and 100 URS cases had been heard in new gTLDs, rather than after a specified time, but the motion was defeated.

Full UDRP reform unlikely until 2017

Kevin Murphy, October 4, 2011, Domain Policy

The often-criticized Uniform Dispute Resolution Policy is unlikely to see fundamental changes for at least five years, following an ICANN review published yesterday.

ICANN has recommended, after talking to the community, that full UDRP reform should be put on the back-burner until at least a year and a half after the first new gTLDs go live.

Since that isn’t likely to happen until early 2013, ICANN is unlikely to address the subject until mid-2014. The chances of a revamped UDRP going live before 2017 are therefore slim.

The new Final Issue Report (pdf), prepared by ICANN staff and sent to the GNSO Council yesterday, says:

Staff recommends that a [Policy Development Process] on the UDRP not be initiated at this time. Staff recommends that a PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. Doing so would allow the policy process to be informed by data regarding the effectiveness of the URS, which was modelled on the UDRP, to address the problem of cybersquatting.

The report was informed by a number of stakeholder webinars and questionnaires sent to UDRP providers earlier this year, as well as a round of public comments.

It notes that UDRP has remained the same since October 1999, but that it still has proved flexible enough to react to changes in the domain industry and cybersquatting tactics.

The report states:

After carefully evaluating the issues and concerns expressed by the ICANN community regarding the UDRP, Staff has concluded that many relate to process issues associated with the implementation of the UDRP, rather than the language of the policy itself.

In the absence of root-and-branch reform, ICANN has suggested the formation of an “expert panel” to investigate whether smaller changes could be made to the periphery of the UDRP.

It could, for example, look at amendments to the Supplemental Rules that UDRP providers use to handle complaints and responses. ICANN wrote:

To the extent that these expert recommendations result in modifications to certain of the UDRP Rules or suggested changes for provider Supplemental Rules to align with the UDRP Rules, these may be adopted by the ICANN Board without the necessity of undertaking a complete PDP.

Consultations have shown that there’s little appetite for massive reform from either side of the debate; it’s probably not too cynical to say that the status quo will be maintained largely by paranoia.

Trademark holders would ideally prefer a cheaper, faster system that is more accommodating to their own interests, whereas domain investors would like to see an end to forum-shopping and panelists who give too much deference to big business.

But both sides are terrified that the actual process of reforming UDRP would be captured by their opponents, ultimately tilting the balance of power against their own interests.

The trademark lobby is convinced that ICANN policy-development is the plaything of the domain name industry, and vice versa.

What we’re left with is a system where cybersquatting still pays and in which reverse domain hijacking can sometimes be a cheap way to get your hands on a domain you want.

And it looks like it could stay that way for some time to come.

The Final Issue Report now needs to be considered by the GNSO Council, presumably at its public meeting in Dakar, Senegal later this month.

I think the Council will almost certainly accept the report’s recommendations against a PDP with little argument – everybody has far too much other stuff to be worrying about at the moment.

It’s less clear to me whether the idea of an “expert panel” will find favor, however. That may be one of Dakar’s more interesting open questions.