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Calls for “fast-track” for new TLDs

Kevin Murphy, December 9, 2010, Domain Registries

Some would-be top-level domain registries have started to call for ICANN to gradually phase in the launch of its new TLD program, so they can get their feet in the door early.

ECLID, a group of six “cultural and linguistic” TLD applicants, is among a number of organizations saying that ICANN could introduce a small number of non-controversial TLDs before opening the floodgates to hundreds of new extensions.

Judging that IP concerns may continue to hold up the first round of applications and that cybersquatting risks may not be as significant in domains such as .scot or .eus, ECLID’s Davie Hutchison wrote:

We ask that ICANN move forward at speed and with determination and prevent further delay causing damage to the clTLDs and other community TLDs that will enhance the richness and diversity of the Internet. Failing the courage or resolve to do that, we ask ICANN to create a fast-track process for the “safe” community TLDs which would be an excellent testing ground for the process before opening it up to the non-community based TLDs.

Calls for a “fast track” for non-controversial TLDs have also been made by members of ICANN’s Governmental Advisory Committee this week.

It’s been the GAC’s position for a few months now that “uncontroversial” community TLDs, including those with cultural and linguistic ties, should be dealt with first.

The idea doesn’t make a heck of a lot of sense to me. A phased launch would require the development of a new objective process to categorize applicants into “controversial” and “non-controversial” buckets.

For the amount of time and effort that would take, ICANN may as well just sort out the problems with the Applicant Guidebook as a whole.

Kurt Pritz, ICANN’s veep in charge of the new TLD program, addressed the feasibility of a phased launch during a press conference here in Cartagena today, noting that “it’s very difficult to have a round in which just a certain type of TLD allowed to apply”.

ICANN tried to restrict TLDs to limited communities with the 2003 round of “sponsored” TLDs, causing problems and controversies that continue to be felt seven years on.

I think it’s fairly safe to say that any rulebook that limited what TLDs could be applied for or who could apply for them would be soundly gamed by the domain name industry (cf .jobs, .xxx, .travel, etc).

Trademarks may delay new TLD approval

Kevin Murphy, December 8, 2010, Domain Registries

The intellectual property lobby won a notable victory this week, after governments told ICANN they want it to delay approval of the new top-level domains program until it has more cybersquatting protections.

Some members of the Governmental Advisory Committee appear to have been lobbied hard by the IP community, and have taken its concerns on board more or less wholesale.

The UK representative, Mark Carvell of the Department for Business, Innovation and Skills, was most vocal during a meeting of the GAC and ICANN board here in Cartagena, Colombia yesterday.

He said of the proposed final Applicant Guidebook for new TLDs (which the GAC still pointedly refers to as the “DAG”, for Draft Applicant Guidebook):

Most representations we received came from brand owners, rights holders, they’re the ones being most agitated by this. I think they also recognized the potential opportunities, but the big issue for them was the costs…

The rights protection mechanisms are still not effective enough, that’s what’s coming to us in the Ministry… If you’re really hoping to sign off the guidebook this week, I think that’s something you really ought to reconsider.

Carvell pointed in particular to the proposed Trademark Clearinghouse and Uniform Rapid Suspension policies as needing work – this is essentially the IP lobby’s position also.

His views were supported by Germany, Norway and the Canadian GAC chair, among others.

A repeated refrain was “we’re not there yet”, which prompted ICANN vice-chair Dennis Jennings to push for a definition of “there”. What, in other words, would make the GAC happy enough to go ahead?

The GAC isn’t great when it comes to providing straight answers to those kinds of questions, but Carvell gave it a shot.

He said that currently the GAC does not believe that the benefits of new TLDs outweigh the costs. When it does, that would be the “key turning point”:

When we get to that position, that the benefits for businesses, for the global economy, for opportunities for business, are going to be greater, scaled-up, greater than the costs to brand owners and those who are going to have shell out big-time in order to effectively subsidize, in their view, perhaps subsidize the process.

The US representative, Suzanne Sene, added that “the whole issue is of feeling confident that benefits will outweigh the costs”.

That’s still worryingly free of a measurable benchmark, if you’re an impatient new TLD applicant.

In a further open meeting today, it became clear that the GAC is still putting forth the idea that there could be a “fast-track” or “trial” style TLD application round for “non-controversial” TLDs – presumably meaning TLDs of little interest to defensive trademark holders.

GAC chair Heather Dryden said today that “introducing a conservative first round is the best way to manage risk in the unknown”, an idea that was promptly challenged by TLD applicants including Minds + Machines CEO Antony Van Couvering.

I don’t get the feeling that the GAC has thought the idea through a great deal. In order to be half-way objective, it would presumably require the created of a second, parallel AGB for pre-approving applications. I don’t think the idea has legs.

But do the GAC’s objections mean that new TLD program, currently pencilled in to open the first application round May 30, 2011, will be delayed?

The GAC has not yet submitted its formal Cartagena advice (it should be published tomorrow), but it will presumably reflect the concerns raised over the last few days.

Under ICANN’s bylaws, the organization has to justify any decision to reject GAC advice and then “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”

European Commission representative Bill Dee invoked that part of the bylaws during yesterday’s meeting, and ICANN chair Peter Dengate Thrush agreed that talks were needed.

Dengate Thrush said he was in favor of a GAC-board meeting over one or two days at some point between now and the San Francisco ICANN meeting next March, to thrash out their differences and Dryden seemed to agree.

If that meeting was held fairly soon, it would not necessarily mean ICANN misses the May 30 deadline.

The current proposed timeline contains a 30-day window between Friday and January 11 in which ICANN staff update the “approved” AGB according to the board’s directions.

There follows an obligatory four-month ICANN outreach and marketing campaign.

Conceivably, although scheduling may be a challenge, if the GAC and board meet and resolve their differences over the next 30 days or so, the May 30 deadline could be workable.

I think it might be quite unlikely that’s going to happen, however.

The ICANN board convenes to discuss and vote on the AGB this Friday. It will be very interesting to see how its resolution is worded, and whether it can both save face and serve the GAC.

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

Governments still want new TLD morality veto

Kevin Murphy, November 23, 2010, Domain Registries

ICANN’s Governmental Advisory Committee still wants to block “controversial” new top-level domains on morality grounds.

In a letter to ICANN chairman Peter Dengate Thrush, a copy of which I have obtained, the GAC makes it clearer than ever that it wants national laws to play a part in approving new TLDs.

It also suggests that national governments should be able to pre-screen strings before applications are filed, to give applicants “early warning” that they are stepping into controversial waters.

The letter draws the battle lines for what could be some heated debate at ICANN’s meeting in Cartagena next month.

Given that the letter does not appear to have been published by ICANN yet, I will quote liberally.

Under the heading “Universal Resolvability of the DNS”, GAC interim chair Heather Dryden, the Canadian representative on the committee, wrote:

Due to uncertainties regarding the effectiveness of ICANN’s review and objections procedures, a country may feel compelled to block a new gTLD at the national level that it considers either objectionable or that raises national sensitivities.

To date, there do not appear to be controversial top level domains that have resulted in significant or sustained blocking by countries.

The GAC believes it is imperative that the impact on the continued security, stability and universal resolvability of the domain name systems of the potential blocking at the national level of the new gTLD strings that are considered to be objectionable or that raise national sensitivities be assessed prior to introducing new gTLDs.

The letter carries on to say that the GAC will “seek advice from the technical community” on the issue.

Dryden wrote that there should be a “prior review” process that would be able to identify strings that are “contrary to national law, policy or regulation” or “refer to religions, ethnicity, languages or other cultural identifiers that might raise national sensitivities”.

It sounds like the GAC envisions a pre-screening process, before new TLD applications are officially filed, similar to the “expressions of interest” concept that ICANN abandoned in March.

What TLDs this process would capture is unclear. The GAC letter notes by way of example that “several governments restrict the registration of certain terms in their ccTLDs”.

In practical terms, this would raise question marks over TLDs such as “.gay”, which would quite clearly run contrary to the policies of many national governments.

(As I reported earlier this month, the recently relaunched .so registry currently bans “gay”, “lesbian” and related terms at the second level.)

There’s more to be reported on the the implications of this letter, particularly with regards the work of ICANN’s “morality and public order” policy working group and the GAC’s relationship with ICANN in general.

Watch this space.

Will the new TLD guidebook provide answers?

Kevin Murphy, November 8, 2010, Domain Registries

ICANN is due to publish an Applicant Guidebook for new top-level domain registries tomorrow, and there are still big question marks over its contents.

Judging from a preliminary report from the ICANN board’s most-recent official meeting, some key decisions may not have yet been taken.

Perhaps the biggest unresolved issue is whether to permit the “vertical integration” of registry and registrar functions.

Which way ICANN swings on this problem will determine which companies are eligible to apply for new TLDs, how their business models will be structured, and how realistic “.brand” TLDs will be.

The ICANN community failed to reach consensus on this issue, largely due to differing business interests and a few consumer protection concerns.

But it looks like the ICANN board did not even discuss the matter at its October 28 meeting. The preliminary report has this to say:

2. Vertical Integration

In the interests of time, the Chair adjourned this item of discussion to a later date.

That “later date” may have been last Thursday and Friday, when the board held its rescheduled “retreat”, which is not designated as an official meeting.

On “Rec6”, previously known as the “morality and public order” objections process, the board passed no resolution October 28, but seems to have endorsed further discussions with the community.

The preliminary report states:

The Board discussed staff presentation and, in conformance with staff recommendation, directed staff to provide a briefing paper to the working group and to coordinate a call with the working group to further discuss the issues.

If the Rec6 working group mailing list and the GNSO calendar are any guides, that meeting has not yet been called (at least not publically).

The report also addresses geographic domains and issues that need to be taken into account given what ICANN’s Affirmation of Commitments with the US government says about new TLDs.

The Board agreed that staff provide a paper on geographic names to the GAC, the Chair of the GAC would check on the scope of issues still requiring discussion, and then the Chairs of the GAC and the Board would discuss the process for resolution to move this issue forward prior to Cartagena.

The Board discussed a paper regarding the adherence to the conditions set out in the Affirmation of Commitments in launching New gTLDs, and the need for identifying objective metrics to measure ICANN’s performance. The Board asked staff to consider what known performance indicators for the New gTLD program may be, what the adequacy scale is for measuring, and try to set that out for future conversation.

With all this in mind, it seems to me that while we may have a timeline for the launch of the new TLD program, there’s still much more to do than merely cross t’s and dot i’s.

Can we expect more placeholder text in tomorrow’s Applicant Guidebook?

.XXX debate could test GAC powers

Kevin Murphy, November 1, 2010, Domain Policy

The long-running .xxx top-level domain saga has tested ICANN processes to their limits over the last decade, and it looks like it may do so at least one more time.

Digging a little deeper into the board’s decision to consult with its Governmental Advisory Committee before approving the TLD, it looks like the discussion will be quite broad-based.

The .xxx consultation could in fact have consequences for the board/GAC power balance, helping define the parameters of their future interactions.

This PDF, published at the same time as last week’s board resolution on .xxx, outlines three GAC positions that could have a bearing on the matter.

The first is its communiqué from the Wellington meeting in 2007, which noted that several GAC members were “emphatically opposed” to the introduction of .xxx.

The GAC operates on a consensus basis. When it can’t find consensus, its communiqués also reflect minority positions. So ICANN now wants to know whether the Wellington letter constitutes GAC “advice”.

The question remains whether a position taken by “several members of the GAC” can be equated with GAC advice on public policy matters. If it is not GAC advice, then the concern of inconsistency [of the .xxx contract with GAC advice] diminishes.

Some may be surprised to discover that, after over a decade, there’s no broad agreement about when something the GAC says constitutes official “advice” that ICANN, under its bylaws, must consider.

Attendees to the Brussels meeting this June will recall that the joint board-GAC meeting, transcribed here, spent most of its time labouring on this apparent oversight.

In consulting with the GAC on .xxx, there’s an outside chance that some answers with regards the definition of “advice” may be found.

It wouldn’t be the first time ICM Registry’s controversial application has forced ICANN to address shortcomings in its own accountability procedures.

Notably, the Independent Review Process, promised in the bylaws for years, was eventually implemented to allow ICM’s appeal after it had pushed the Reconsideration Request process to its limit.

ICANN’s latest resolution on .xxx also refers to a letter (pdf) GAC chair Heather Dryden sent to the board in August, which expressed a desire that no “controversial” TLDs should be added to the root.

While ostensibly addressing future TLD applications, rather than TLDs applied for under previous rounds, the letter did say that “objection procedures should apply to all pending and future TLDs”, which was widely interpreted as referring directly to .xxx.

Last week’s ICANN board documents say:

If the “pending” TLD refers to .XXX, the approval of the .XXX sTLD Registry Agreement without allowing for these types of objections would be inconsistent with GAC advice.

I’ve reason to believe that the “pending” language may have been inserted quite late into the drafting of the Dryden letter, and may not enjoy the unanimous support of GAC members.

Regardless, the letter implies that whatever “morality and public order” or “Rec6” objections process winds up in the new TLD Applicant Guidebook should also apply, retroactively, to ICM.

If ICANN were to agree on this point, a precedent would presumably be set that would allow the GAC to issue thirteenth-hour “advice” that moves the goal-posts for future new TLD applicants, removing a significant amount of predictability from the process.

For that reason, I think it’s unlikely that ICM will be told it is subject to the Rec6 process (whatever that may ultimately look like).

The consultation, however, may result in some clarity around where the GAC’s powers of “advice” begin and end, which is probably a good thing.

Will .xxx be approved today?

Kevin Murphy, October 28, 2010, Domain Registries

Will the adults-only .xxx top-level domain be approved today, or will the hot potato be tossed to governments for a decision?

That’s the question facing ICANN’s board of directors, which is set to discuss the controversial TLD for the umpteenth time today.

The last resolution it passed on .xxx called for a public comment period, followed by a decision on whether the registry contract is compatible with old Governmental Advisory Committee advice.

With the comment period closed, it appears that all that remains is to decide whether a new GAC consultation is required before the contract can be approved or rejected.

Some opponents of .xxx are demanding a GAC consultation.

Diane Duke, director of porn trade group the Free Speech Coalition, wrote to ICANN this week, urging it to refer the application back to the GAC.

As Duke knows, many international governments are opposed to .xxx.

A week ago, Australia’s socially conservative, pro-censorship broadband minister, Stephen Conroy, also asked ICANN for another GAC consultation, expressing his “strong opposition” to the TLD due to its “lack of identified public benefit”.

And Conroy is surely not alone. There can be few governments that would be happy to be seen to endorse pornography, regardless of its legal status in their jurisdictions.

The GAC is firmly of the view that “controversial” TLDs present a risk to the global interoperability of the internet. The fear is that strings such as .xxx could lead to blocking at national borders and ultimately fragmentation of the DNS root.

Whichever decision ICANN makes today, it is sure to cause controversy one way or another.

Former ICANN chief speaks out against new TLD morality veto

Kevin Murphy, October 26, 2010, Domain Policy

Former ICANN president and CEO Paul Twomey has expressed his support for rules curbing the ability of international governments to object to new top-level domains.

Twomey’s suggestions could be seen as going even further to limit government powers in the new TLD process than previous recommendations from the community.

The advice came during the ICANN comment period on the so-called “Rec6” recommendations, which previously sought to create an objection process based on “morality and public order” or “MOPO” concerns.

There had been a worry from some elements of the ICANN community that backwards governments could use Rec6 to arbitrarily block controversial new TLDs on national interest grounds.

But a cross-constituency working group, which included a few members of ICANN’s Governmental Advisory Committee, instead developed recommendations that would create a much narrower objections process with a greater emphasis on free speech.

Twomey, who quit ICANN in June 2009, has now expressed broad support for the working group’s recommendations, and suggests a few tweaks to make the process less open to abuse.

He said ICANN “should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group”.

Notably, Twomey has urged ICANN to steer clear of the phrase “national interest”, which appears in the current Rec6 recommendations, and instead use “national law”.

He reasons that giving weight to “national interests” could enable fairly junior civil servants to object to new TLDs without the full backing of their governments or legislation.

phrases such as “perceived national interest” reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase “public policy”. I remember a GAC member many years ago stating that “public policy is anything I decide it is”.

Twomey then recommends that even when a government has an objection based on an actual national law, that law “should only derive from a national law which is in accordance with the principle of international law.”

A law which violated human rights treaties, for example, or which was hurriedly passed specifically in order to scupper a TLD bid, would therefore not be valid grounds for objection.

Twomey’s reasoning here is fascinating and a little bit shocking:

without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.

I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

I’ll leave it for you to speculate about which companies Twomey is referring to here. I don’t think there are many firms in the domain name space that well-funded.

Prior to becoming ICANN’s president, Twomey chaired the GAC as the Australian representative. He’s currently president of Leagle and managing director of Argo Pacific, his own consulting firm.

His full commentary, which delves into more areas than I can get into here, can be found here. The Rec6 working group’s recommendations can be found here (pdf). My previous coverage of the Rec6/MOPO issue can be found here.

US and Russia face off over ICANN veto power

Kevin Murphy, October 6, 2010, Domain Policy

The ruling body of the International Telecommunications Union this week kicked off a major policy-making meeting in Guadalajara, Mexico, and has already seen the US and Russia taking opposing stances over the future control of ICANN.

A group of former Soviet nations, chaired by the Russian Federation’s Minister of Communications, seems to have proposed that the ITU should give itself veto power over ICANN decisions.

A proposal filed by the Regional Commonwealth in the field of Communications (RCC) calls for the ICANN Governmental Advisory Committee to be scrapped and replaced by an ITU group.

Consideration should be given to the expediency of having the functions of GAC carried out by a specially-constituted group within ITU with the authority to veto decisions adopted by the ICANN Board of Directors. If it is so decided, the ITU Secretary-General should be instructed to consult ICANN on the matter.

The proposal was first noted by Gregory Francis at CircleID.

It says that the GAC is currently the only avenue open to governments to “defend their interests” but that it has “no decision-making authority and can do no more than express its wishes”.

It also notes that fewer than 50% of nations are members of the GAC, and that only 20% or fewer actually participate in GAC meetings.

The proposal was apparently submitted to the ongoing ITU Plenipotentiary Conference but, in contrast to ICANN’s policy of transparency, many ITU documents are only accessible to its members.

A reader was kind enough to send me text extracted from the document. I’ve been unable to verify its authenticity, but I’ve no particular reason to believe it’s bogus.

The RCC was set up in 1991 to increase cooperation between telecommunications and postal operators in the post-Soviet era. Its board is comprised of communications ministers from a dozen nations.

Its position on ICANN appears to be also held by the Russian government. Igor Shchegolev, its communications minister, is chair of the RCC board.

At the Plenipotentiary on Tuesday, Shechegolev said (via Google Translate):

We believe that the ITU is capable of such tasks to international public policy, Internet governance, its development and finally, protection of interests of countries in ICANN.

Philip Verveer told the conference:

the ITU should be a place where the development of the Internet is fostered. The Internet has progressed and evolved in a remarkably successful way under the existing multi-stakeholder arrangements. Changes, especially changes involving inter-governmental controls, are likely to impair the dynamism of the Internet—something we all have an interest in avoiding.

ICANN itself has no formal presence at the Plenipotentiary, after ITU secretary-general Hamadoun Toure turned down a request by ICANN president Rod Beckstrom for observer status.

The conference carries on until October 22. It’s likely that we haven’t heard the last of the anti-ICANN rhetoric.

Do uncontroversial new TLDs exist?

Kevin Murphy, September 27, 2010, Domain Policy

ICANN’s Governmental Advisory Committee wants ICANN to drastically scale back the first round of new top-level domain applications, limiting it to “uncontroversial” strings.

In a letter last Thursday, interim GAC chair Heather Dryden wrote that ICANN should consider a “road test” or “fast track first round” made up of “relatively straightforward, non-sensitive and uncontroversial gTLD proposals”.

This doesn’t make much sense to me, for a few reasons.

First, Dryden’s letter does not attempt to define what such a TLD would look like, other than noting that they should include “community, cultural and geographical applications”.

Neither does it give ICANN any ideas about how it might separate out uncontroversial applications for special treatment before any applications have actually been received.

The idea might have worked had the Expressions Of Interest plan not been canned in Nairobi, but right now I can’t see an obvious way to do it without actually asking all applicants to file their apps before they have any idea of the rules their applications will be subject to or on what timeline.

It’s a recipe for, if not disaster, then for at least months and months of more delays as ICANN tries to design a parallel pre-approval process for uncontroversial strings.

Second, there’s no category of new TLD that is exclusively “uncontroversial” in nature.

The GAC wants “an initial fast track round for a limited number of non-controversial applications which should include a representative but diverse sample of community, cultural and geographical applications”.

This would seem to suggest that community, cultural and geographical TLDs are somehow less prone to controversy than other categories of application, which is not the case.

On the geoTLD front, you only need look at the large number of contested regional/city domains that we already know about – Berlin, Barcelona and Bayern, without leaving the B’s – to see that controversy is likely.

Even uncontested cityTLDs have potential for conflicts. Take .london, for example. Last time I checked, the one .london applicant we know of made it clear that .london would exclusively represent London in the UK.

If you’re a business in London, Ontario, or any other London, and nobody contests the .london bid, you’re forever excluded from the namespace. That, I would argue, could be controversial.

As for the cultural/ethnic TLDs, are the proposed .kurd, .eus (Basque) and .sic (Székely) TLDs really totally uncontroversial?

I genuinely don’t know the answer to that question, but I do know they are designed to represent peoples largely originating from (relatively recently at least, if not currently) contested territories.

And what of “community” TLDs? It’s almost impossible to argue that this category is by definition less controversial, given that essentially any applicant is eligible to designate itself a “community” TLD.

There’s a pretty decent chance that one or more .gay bids will be a community-backed application. And I strongly suspect that the GAC doesn’t like the prospect of that TLD one little bit.

Third, ICANN has already executed two limited new TLD rounds.

The whole point of the 2000 round of new TLDs was to create a “test-bed”. Similarly, a key reason the 2003 round was limited to “sponsored” TLDs was to increase the TLD pool in an orderly fashion.

The reason the GAC says wants a limited launch this time is to help ICANN in “collecting relevant information” relating to the “economic impacts of a large number of new gTLD strings”.

There’s an assumption here that the behavior of registrants, such as trademark holders, will be the same when a small number of TLDs are released as when a large number are released, or that one can extrapolate the latter from the former, which may not be the case.

If ICANN wants a limited launch in order to measure the economic impact, it has two previous such rounds to study already. But if it wants empirical data on a large number of TLDs being launched, there’s unfortunately only one way to get it.

Personally, I think the GAC’s talk of “economic analysis” and “uncontroversial strings” is more likely a smokescreen for its real concerns about nations unilaterally blocking strings they don’t like at their borders, potentially leading to root fragmentation.