ICANN senior vice president Kurt Pritz has replied in writing to great big list of questions posed by US Congressmen following the two hearings into new gTLDs last month.
The answers do what the format of the Congressional hearings made impossible – provide a detailed explanation, with links, of why ICANN is doing what it’s doing.
The 27-page letter (pdf), which addresses questions posed by Reps. Waxman, Eshoo and Dingell, goes over some ground you may find very familiar, if you’ve been paying attention.
These are some of the questions and answers I found particularly interesting.
Why are you doing this?
Pritz gives an overview of the convoluted ICANN process responsible for conceiving, creating and honing the new gTLD program over the last few years.
It explains, for example, that the original GNSO Council vote, which set the wheels in motion back in late 2007, was 19-1 in favor of introducing new gTLDs.
The “lone dissenting vote”, Pritz notes, was cast by a Non-Commercial Users Constituency member – it was Robin Gross of IP Justice – who felt the program had too many restrictions.
The letter does not mention that three Council members – one from the Intellectual Property Constituency and two more from the NCUC – abstained from the vote.
Why aren’t the trademark protection mechanisms finished yet?
The main concern here is the Trademark Clearinghouse.
New gTLD applicants will not find out how the Clearinghouse will operate until March at the earliest, which is cutting it fine considering the deadline for registering as an applicant is March 29.
Pritz, however, tells the Congressmen that applicants have known all they need to know about the Clearinghouse since ICANN approved the program’s launch last June.
The Clearinghouse is a detail that ideally should have been sorted out before the program launched, but I don’t believe it’s the foremost concern for most applicants or trademark owners.
The unresolved detail nobody seems to be asking about is the cost of a Uniform Rapid Suspension complaint, the mechanism to quickly take down infringing second-level domain names.
ICANN has said that it expects the price of URS – which involves paying an intellectual property lawyer to preside over the case – to be $300 to $500, but I don’t know anyone who believes that this will be possible.
Indeed, one of the questions asked by Rep. Waxman starts with the premise “Leading providers under Uniform Dispute Resolution Policy (UDRP) have complained that current fees collected are inadequate to cover the costs of retaining qualified trademark attorneys.”
UDRP fees usually start at around $1,000, double what ICANN expects the URS – which I don’t think is going to be a heck of a lot simpler for arbitration panels to process – to cost trademark owners.
Why isn’t the Trademark Claims service permanent?
The Trademark Claims service is a mandatory trademark protection mechanism. One of its functions is to alert trademark holders when somebody tries to register their mark in a new gTLD.
It’s only mandatory for the first 60 days following the launch of a new gTLD, but I’m in agreement with the IP community here – in an ideal world, it would be permanent.
However, commercial services already exist that do pretty much the same thing, and ICANN doesn’t want to anoint a monopoly provider to start competing with its stakeholders. As Pritz put it:
“IP Watch” services are already provided by private firms, and it was not necessary for the rights protection mechanisms specific to the New gTLD Program to compete with those ongoing watch services already available.
In other words, brands are going to have to carry on paying if they want the ongoing benefits of an infringement notification service in new gTLDs.
When’s the second round?
Nothing new here. Pritz explains why the date for the second round has not been named yet.
Essentially, it’s a combination of not knowing how big the first round is going to be and not knowing how long it will take to conduct the two (or three) post-first-round reviews that ICANN has promised to the Governmental Advisory Committee.
I tackle the issue of second-round timing in considerable detail on DomainIncite PRO. My feeling is 2015.
On Whois verification
Pritz reiterates what ICANN CEO Rod Beckstrom told the Department of Commerce last week: ICANN expects that many registrars will start to verify their customers’ Whois data this year.
ICANN is currently talking to registrars about a new Registrar Accreditation Agreement that would mandate some unspecified degree of Whois verification.
This issue is at the top of the law enforcement wish list, and it was taken up with gusto by the Governmental Advisory Committee at the Dakar meeting in October.
ICANN is currently in negotiations with its accredited registrars over amendments to the Registrar Accreditation Agreement. ICANN is negotiating amendments regarding to the verification of Whois data, and expects its accredited registrars to take action to meet the rising call for verification of data. ICANN expects that the RAA will incorporate – for the first time – Registrar commitments to verify Whois data.
He said ICANN expects to post the amendments for comment before the Costa Rica meeting in mid-March, and the measures would be in place before the first new gTLDs launch in 2013.
I’ve heard from a few registrars with knowledge of these talks that Whois verification mandates may be far from a dead-cert in the new RAA.
But by publicly stating to government, twice now, that Whois verification is expected, the registrars are under increased pressure to make it happen.
IF Whois verification is not among the RAA amendments, expect the registrars to get another dressing down from the GAC at the Costa Rica meeting this March.
On the other hand, ICANN has arguably handed them some negotiating leverage when it comes to extracting concessions, such as reduced fees.
The registrars were prodded into these talks with the GAC stick, the big question now is what kind of carrots they will be offered to adopt an RAA that will certainly raise their costs.
ICANN expects to post the proposed RAA changes for public comment by February 20.
Registry services start-up Sedari has won a deal to support for an application for the .moscow and .МОСКВА generic top-level domains.
The deal is with the non-profit Foundation for Assistance for Internet Technologies and Infrastructure Development, which is handling Moscow’s official bid.
It’s Sedari’s first contract with a city gTLD bid, according to the company.
FAITID describes the company as its “strategic international partner”, chosen to help out with the application due to its expertise with all things ICANN.
RU-Center, the largest Russian registrar, is still its key partner in Russia.
ICANN Ombudsman Chris LaHatte is investigating a complaint related to the new generic top-level domains program.
Speaking to DI today, LaHatte declined to disclose the nature of the complaint or the identity of the complainant, but said he hoped to have the case resolved in a few weeks.
He may publish an official report about the investigation, he said. This would be the first such report to emerge from the Ombudsman’s office since October 2009.
The often-overlooked Ombudsman is not mentioned at all in the Applicant Guidebook, but it is an avenue open to applicants who believe they’ve been treated unfairly.
LaHatte said it’s “unlikely but conceivable” that he will receive complaints about unfair behavior when applications start being processed – and rejected – later this year.
The Ombudsman’s job is to look into allegations of unfairness in ICANN staff actions or the decisions of its board of directors.
But LaHatte said he believes he would be able to also handle complaints about the program’s outside evaluators, if applicants believe they have been treated unfairly.
“There will be some people who prefer to litigate and some who would prefer to come to me,” he said. “The message I would like to send to the community is that my door is always open.”
But he warned that the Ombudsman is not a “court of appeal” for applicants who simply disagree with adverse decisions.
The Ombudsman job has in the past been criticized for being relatively toothless – the role answers to the ICANN board and has no direct power other than the ability to make recommendations.
LaHatte characterized his ability to effect change as a “moral persuasion”.
He said he’s received 23 complaints so far in January, already double what his predecessor received per month, but many of these will be out his jurisdiction — cases of ICANN being blamed for domain theft or a registrar problem, for example.
ICANN says it “does not engage in trade or commerce” and therefore US antitrust laws do not apply to its approval of the .xxx top-level domain, according to court documents.
The organization and .xxx operator ICM Registry yesterday submitted their coordinated responses to the antitrust lawsuit filed by YouPorn owner Manwin Licensing.
ICANN claims it cannot be held liable under antitrust law and ICM has accused Manwin of filing a nuisance lawsuit because it missed its opportunity to secure some premium .xxx domain names.
Manwin sued in November, alleging ICANN and ICM illegally colluded to deliver “monopolistic conduct, price gouging, and anti-competitive and unfair practices”.
The company, which runs the largest porn sites on the internet, claims ICANN should have opened the .xxx contract to competitive bidding and that ICM’s sunrise policies amounted to “extortion”.
It wants a California District Court to shut down .xxx entirely.
But ICANN has now argued that Manwin’s antitrust claims cannot possibly apply to it because it is a charitable, public-interest organization:
ICANN cannot, as a matter of law, be liable under the antitrust laws with respect to the conduct alleged in the Complaint because ICANN does not engage in “trade or commerce.”
[ICANN] does not sell Internet domain names, it does not register Internet domain names, and it certainly is not an Internet pornographer. ICANN does not make or sell anything, it does not participate in any market, and its Bylaws expressly forbid it from participating in any of the markets referenced in the Complaint.
Its motion to dismiss (pdf) goes on to say that the introduction of .xxx is actually pro-competition, and that Manwin only sued because it is scared of losing market share.
Plaintiffs claim to be upset with the manner in which ICM is operating the new .XXX registry, but since Plaintiffs already operate (by their own admission) some of the most successful pornographic websites on the Internet, websites that will continue to operate irrespective of anything ICM might do, what the Plaintiffs are really complaining of is the potential competition that their websites may face from the operation of .XXX.
ICM Registry makes similar arguments in its motion to dismiss (pdf):
what Plaintiffs are really complaining about is the fact that they lost the opportunity to purchase the least expensive defensive registry options offered by ICM because they missed the deadline
But ICM also says that the lawsuit falls foul California’s laws against so-called SLAPPs (“strategic lawsuits against public participation”), basically nuisance suits designed to suppress speech.
Manwin managing partner Fabian Thylmann offered to invest in ICM in July 2010, but Lawley declined, according to an ICM exhibit (pdf).
By October 2010 these offers had turned to legal threats, according to Dumas’ declaration:
Manwin saw the introduction of the .XXX sTLD as a threat to Manwin’s dominance over the adult Internet industry. At that time, Thylmann said that he would do whatever he could to stop .XXX. Specifically, Thylmann said that if ICANN approved the .XXX sTLD, Manwin would file a lawsuit against ICM to disrupt its ability to conduct business
Shortly after ICANN’s December 2010 meeting in Cartagena concluded with an ambiguous resolution on .xxx’s future, Thylmann rebuffed Dumas’ overtures about the .xxx Founders Program.
He predicted in an email to Dumas that ICANN’s Governmental Advisory Committee would force ICANN to reject .xxx, adding “the .xxx domain is useless even if it comes to market”, according to an ICM exhibit.
In September 2011, when the .xxx launch was already well underway, Manwin demanded thousands of free premium .xxx domains and a veto over some registry policies, according to Dumas:
Manwin demanded that ICM: allocate a minimum of several thousand .XXX domain names to Manwin free of charge; commit to prevent IFFOR from making any policies that ban or restrict the operation of user-generated content “tube” sites on .XXX domains; grant across-the-board discounts on all .XXX domain registrations; and allow Manwin to operate certain ‘premium’ or high value domain names, such as “tube.xxx,” through a revenue sharing arrangement between Manwin and ICM.
ICM says that these demands were accompanied by legal threats.
The lawsuit and Manwin’s boycott of companies using .xxx domains has harmed ICM’s business, according to the company’s court filings.
The case continues.
Go Daddy’s unpopular 60-day domain name lockdown period, which prevents customers moving to other registrars, could be reduced to as little as five days under new ICANN policy.
ICANN’s GNSO Council this week voted to amend the Inter-Registrar Transfer Policy, which is binding on all registrars, to clarify when and how a registrar is allowed to block a transfer.
Today, Go Daddy has a policy of preventing transfers for 60 days whenever the registrant’s name is changed in the Whois record.
Other registrars may have similar policies, but Go Daddy is the only one you ever really hear complaints about.
Some have even posited that the practice violates the IRTP, which explicitly prevents registrars spuriously locking domains when customers update their Whois.
But ICANN’s compliance department has disagreed with that interpretation, drawing a distinction between “Whois changes” (cannot block a transfer) and “registrant changes” (can block a transfer).
Essentially, if you change your name in a Whois record the domain can be locked by your registrar, but if you change other fields such as mailing address or phone number it cannot.
Go Daddy and other registrars would still be able prevent transfers under the revised policy, but they would have to remove the block within five days of a customer request.
This is how ICANN explains the changes:
Registrar may only impose a lock that would prohibit transfer of the domain name if it includes in its registration agreement the terms and conditions for imposing such lock and obtains express consent from the Registered Name Holder: and
Registrar must remove the “Registrar Lock” status within five (5) calendar days of the Registered Name Holder’s initial request, if the Registrar does not provide facilities for the Registered Name Holder to remove the “Registrar Lock” status
Registrars may have some freedom in how they implement the new policy. Unblocking could be as simple as checking a box in the user interface, or it could mean a phone call.
Go Daddy, which was an active participant in the IRTP review and says it supports the changes, supplied a statement from director of policy planning James Bladel:
In the coming months, Go Daddy is making a few changes to our policy for domains in which the registrant information has changed.
We believe this new procedure will continue to prevent hijacked domain names from being transferred away, while making the transfer experience more user-friendly for our customers.
The changes were approved unanimously by the GNSO Council at its meeting on Thursday.
Before they become binding on registrars, they will have to be approved by the ICANN board of directors too, and the soonest that could happen is at its February 16 meeting.
The changes are part of a package of IRTP revisions – more to come in the near future – that have been under discussion in the ICANN community since 2007. Seriously.