Beckstrom strikes back at ANA threat

ICANN president Rod Beckstrom has come out swinging against the latest attack on its new top-levels domains program, promising to “vigorously defend” it.
In his response to a harshly critical missive from the Association of National Advertisers, Beckstrom calls ANA’s claims “either incorrect or problematic in several respects”.
I think “firmly worded” would be an appropriate way to characterize his letter (pdf).
In it, he notes that the new gTLD program has been on the cards since 1998, and has been developed over several years using input from the entire ICANN community, including ANA itself.
He further states that some of the complaints outlined by ANA president Bob Liodice show a lack of research.
As I noted in my interview with Liodice yesterday, ANA seems to think cybersquatting at the top-level will be enabled unless companies defensively apply for their “.brand” gTLDs.
Beckstrom said that these statements “demonstrate a lack of understanding of Program details”.

The letter suggests that companies have no choice but to apply for their own gTLDs. Operating a gTLD means assuming a number of significant responsibilities; this is clearly not for everyone. Indeed, it is hoped that those without an interest in making a contribution to expanded choice or innovation in the DNS will not apply. One clear directive of the consensus policy advice on which the program is built is that TLDs should not infringe the existing legal rights of others. The objection process and other safeguards eliminate the need for “defensive” gTLD applications, because where an infringement of legal rights can be established using these processes, an application will not be approved.

The response goes on to outline some of the mandatory second-level trademark protection mechanisms that have been included in the program’s Applicant Guidebook.
ICANN is arguably on shakier ground here – making use of these mechanisms is still going to cost brand owners time and money, which is the basis of ANA’s objections.
The question now is whether Beckstrom’s responses will be enough to get ANA to call off the dogs.
He has offered to talk to ANA to “to discuss how the ANA might participate more actively in the policy development activities and other ICANN processes going forward”.
That’s specifically not an offer to get into negotiations with ANA about the contents of the Guidebook or to delay the launch of the program.
That was never going to happen, particularly not in response to a thirteenth-hour complaint from an organization that hasn’t commented on the program for the last two years.
Liodice said yesterday that unless ICANN agrees to suspend the program, ANA plans to lobby the US Congress, its Department of Commerce, and may sue.
Reaction from the domain name industry to Beckstrom’s letter has so far been predictably positive.

Snoring interrupts ICANN meeting (MP3)

An ICANN meeting was interrupted yesterday by loud snoring.
I suppose it was only a matter of time.
The incident happened during a teleconference of the Supporting Organization-Advisory Committee New gTLD Applicant Support Working Group chaired by Rafik Dammak and Carlton Samuels.
Dammak is the one who sounds baffled by the sudden interruption, Samuels is the one with the incredible laugh.
Apologies to the participants, but this two-minute MP3 snippet is too gigglesome not to post.

ANA chief calls for new gTLDs to be suspended

The president of the Association of National Advertisers said the organization may sue ICANN unless it suspends its new top-level domains program.
Speaking to DomainIncite, ANA’s Bob Liodice said that American industry is “horrified” by the program, which he believes will cost his members a “quite humongous sum of money”.
Liodice wrote to ICANN president Rod Beckstrom a week ago, demanding the program be abandoned and dropping major hints that a lawsuit would be the alternative.
ANA’s board of directors, comprised of representatives of 36 of the largest companies in the US, is “unanimous” in its opposition to the program, he told me.
“We’ve had many conversations with our members, brand owners in the US, and nobody supports this to our knowledge,” Liodice said. “If American industry is not supporting the recommendation to do this, then who is? What is the benefit if brands owners are saying they’re horrified?”
ANA’s members simply do not understand why the program has been introduced, Liodice indicated.
“What’s the problem, what is ICANN trying to solve?” he said.
I put it to him that increasing competition in the registry space is in many ways ICANN’s raison d’etre, built into its founding principles.
“Just because this is something that was supposed to be done back in the Clinton days doesn’t mean it has to be done today,” he said. “The world has changed.”
“I think this is more for the benefit of ICANN than for the benefit of the [advertising] industry,” he said. “ICANN will secure substantial revenue for these changes and put incredible burdens on the industry to no benefit for the industry.”
ICANN, which is obviously a non-profit, says it has priced the program on a cost-recovery basis.
Not convinced by .brands
I asked Liodice if any of ANA’s members had expressed interest in “.brand” gTLDs, and put it to him that enjoy.coke or iwantmy.mtv might be innovative ways to advertise.
“That is not an issue right now,” he said. “The brand for the most part is in the URL anyway, what benefit does it get from moving to right of the dot?”
“The industry is in a period of stability and is very satisfied with status quo,” he added.
Liodice was not aware of the .brand announcements from Canon and Hitachi, but expressed skepticism about their reasons for applying.
“Are those companies saying this is important to me and will further my business interests?” he asked.
Canon USA does appear to be a member of ANA, although it does not have a seat on its board. Hitachi is not a member.
ANA’s plan
Last week’s letter gave Beckstrom an August 22 deadline to respond. The first thing ANA intends to do is wait for his reply, Liodice said.
Anything other than an undertaking to suspend the program for talks is likely to see an escalation.
“We first have to ensure this program is suspended,” Liodice said. “We’re trying to halt the introduction at this point in time and suspend it until we can have these conversations.”
ANA also hopes to speak to the US Department of Commerce, which has an oversight relationship with ICANN, as well as to members of Congress.
“We are lobbying members of Congress to make sure they’re aware of the detrimental characteristics of this, particularly at a time when the world is in great disorder with the financial crisis,” Liodice said.
There’s also the possibility of court action.
While stopping short of saying ANA will definitely sue, Liodice did say that the organization’s lawyers are looking into possible causes of action.
“If the reply is not consistent [with ANA’s requests] we will explore that possibility,” he said.
ANA would be represented by the law firm Reed Smith, which has already published its own statement of support for Liodice’s letter on its web site.
It’s good to talk
My feeling is that some of ANA’s concerns are already dealt with by the program’s Applicant Guidebook, and that a conversation explaining this could help reduce tensions.
Liodice, for example, appears convinced that top-level cybersquatting will be possible – that .coke could be registered by somebody other than Coca-Cola.
My view is that such an obvious transgression would be easily (and relatively cheaply) dealt with using the Legal Rights Objection mechanism already in the Guidebook.
That’s assuming, of course, that the $185,000 application fee failed to be a deterrent, and that a registry back-end provider dumb enough to put its name to the bid could be found.
But even if ANA can be convinced that the risk of TLD-squatting is negligible, its concerns about the potential for problems at the second level will be harder to address.
Let’s face it, while estimates of the increased cost of trademark enforcement vary wildly, nobody has disputed that there will be a cost.
One ANA member has estimated that the per-brand cost to companies would be $2 million over 10 years, Liodice said.
ANA does not appear to have spent much time getting involved in the development of the new gTLD program lately — the most recent submission I could find dates from 2009 — but Liodice said its counsel Reed Smith has been representing it in the ICANN process.

New ICANN director appointed

Filipino businesswomen Judith Duavit Vazquez has been selected to join ICANN’s board of directors.
She will take the seat being vacated by Gambian development consultant Katim Touray at the end of the ICANN meeting in Dakar October 28.
Vazquez has a pretty impressive resume covering senior roles at major telecommunications, internet and media organizations in the Philippines.
Her corporate board experience includes 20 years at GMA Network, a major player in Filipino TV and radio, and time at a few non-profits.
Board work has included seats on compensation, audit and risk management committees – useful skills given ICANN’s ongoing accountability and transparency reform work.
In terms of involvement with internet addresses, Vasquez has worked with APNIC, the Asia-Pacific regional internet registry, according to her bio.
She’s also a woman, which will have counted in her favor.
ICANN’s Nominating Committee, which selects eight of ICANN’s directors, had made no secret of the fact that it wants the board to resemble less of a sausage-fest.
German politician Erika Mann is currently the only female voting director, following the departure of lawyer Rita Rodin Johnston in Singapore.
I speculated in June that NomCom’s selection “will almost certainly be a woman from a region currently under-represented on the board. My guess is Russia.”
I was obviously wrong about Russia, and while the Asia-Pac region has hardly been under-represented in the past, Vasquez is the first ICANN director to hail from South-East Asia.
NomCom also extended recently installed chairman Steve Crocker’s term on the board, which was due to expire in October, for another three years, as was expected.
For the full list of NomCom committee appointees, see the ICANN announcement.

Your second chance to win a $1,000 conference pass

Congratulations to “Michael”, you’ve just won a free conference pass for newdomains.org worth $1,000 just for leaving a comment on DomainIncite.
Random.org’s random number sequence generator selected the winning order of comments earlier today, and Michael came top of the list.
His winning answer to the question of “What new gTLD(s) do you think will be successful, and why?” was:

If success is defined by the value it offers the Internet community and not by the number of registrations then I think that a cause based TLD like .Eco or .HIV will be the most successful as they will revolutionize the way we interest with charities online and show our support, ushering in a new era.

I’ve hooked the winner up with conference organizer United-Domains.
And now on to…
Competition Day Two
To be in with a chance at winning the second Full Conference pass to newdomains.org, simply:

1) Follow me on Twitter (if you’re not already doing so).
2) Send a tweet mentioning @domainincite and including the hashtag #conferencecompo

Tweets must be sent by 2359 UTC, Tuesday August 9. I’ll announce the randomly-selected winner here on Wednesday.
Again, the prize does not include transportation or accommodation, but it does include a certain amount of food and drink, along with access to all the panels and exhibits.
The show runs September 26-27 in Munich, Germany.
These Full Conference passes are currently selling for €699 ($1,000) each, so if you’re currently wondering whether or not to attend, a free ticket may help make your mind up.

.xxx reveals new gTLD support problems

It’s late 2012. You’ve spent your $185,000, fought your way through objections, won your contention set, and proved to ICANN that you’re technically and financially capable of running a new generic top-level domain.
The registry contracts have been signed. But will your gTLD actually work?
The experiences of .xxx manager ICM Registry lately suggest that a certain amount of outreach will be needed before new gTLDs receive universal support in applications.
I’ve encountered three examples over the last few days of .xxx domain names not functioning as expected in certain apps. I expect there will be many more.
Skype. Type http://casting.com into a chat window and Skype will automatically make the link clickable. Do the same for the .xxx equivalent, and it does not.
Android, the Google mobile platform. I haven’t tested this, but according to Francesco Cetaro on Twitter, unless you manually type the http:// the domain doesn’t resolve.
TweetDeck, now owned by Twitter. It doesn’t auto-link or auto-shorten .xxx domains either, not even if you include the http:// prefix.
This problem is well known from previous new gTLD rounds. ICANN even warns applicants about it in the Applicant Guidebook, stating:

All applicants should be aware that approval of an application and entry into a registry agreement with ICANN do not guarantee that a new gTLD will immediately function throughout the Internet. Past experience indicates that network operators may not immediately fully support new top-level domains, even when these domains have been delegated in the DNS root zone, since third-party software modification may be required and may not happen immediately.
Similarly, software applications sometimes attempt to validate domain names and may not recognize new or unknown top-level domains.

As a 10-year .info registrant, I can confirm that some web sites will still sometimes reject email addresses at .info domains.
Sometimes this is due to outdated validation scripts assuming no TLD is longer than three characters. Sometimes, it’s because the webmaster sees so much spam from .info he bans the whole TLD.
This is far less of an issue that it was five or six years ago, due in part to Afilias’s outreach, but just this week I found myself unable to sign up at a certain phpBB forum using my .info address.
I understand ICM has also been reaching out to affected app developers recently to make them aware that .xxx now exists in the root and has resolvable domains.
ICANN also has released code in C#, Java, Perl, and Python (though not, annoyingly, PHP) that it says can be easily dropped into source in order to validate TLDs against the live root.
The last beta was released in 2007. I’m not sure whether it’s still under development.
(UPDATE: CentralNic CTO Gavin Brown has knocked up a PHP implementation here.)

Advertisers threaten to sue over new gTLDs

The Association of National Advertisers is threatening legal action unless ICANN “abandons” its recently approved new generic top-level domains program.
Its CEO, Robert Liodice, has written to his ICANN counterpart Rod Beckstrom outlining its litany of concerns about new gTLDs.
ANA’s strongly worded arguments will be familiar territory for anyone who has been following development of the program for the last few years.
It’s worried about cybersquatting, typosquatting, phishing, as well as the cost of defensive registrations and post-launch trademark enforcement.
The organization represents 400 companies that collectively spend $250 billion every year on their brands, according to the letter.
It also claims that ICANN shirked its duties by failing to adequately consider the economic impact of the program, and that it failed to develop it in a transparent, bottom-up manner.
Liodice wrote (pdf), with my emphasis:

ICANN must not ignore the legitimate concerns of brand owners and the debilitating effect on consumer protection and healthy markets its unsupervised actions will cause. Should ICANN refuse to reconsider and adopt a program that takes into account the ANA’s concerns expressed in this letter, ICANN and the Program present the ANA and its members no choice but to do whatever is necessary to prevent implementation of the Program and raise the issues in appropriate forums that can consider the wisdom, propriety and legality of the program.

The letter ends with a bunch of legal blah about ANA’s rights and remedies, a pretty obvious indication that it’s considering its legal position.
ICANN should “abandon” the program until ANA’s concerns have been addressed, Liodice wrote.
That’s not going to happen, of course.
There’s no way ICANN can put a halt to the program without basically admitting ANA’s analysis of it has merit.
If ANA wants to stop new gTLDs from going ahead, it’s going to need to do more than send a letter.
The letter is CC’d to the US Department of Commerce and several Congressmen, which suggests that we may see another Congressional hearing into the program before too long.
But will we see a lawsuit as well?
ICANN, at least, has anticipated the likelihood of having to defend itself in court for some time.
About 30% of the the $185,000 application fee – $30 million in a 500-application round – is allocated to various “risks”, of which a legal defense fund is one component.
I’d be surprised if ICANN’s legal team hasn’t war-gamed potential claims and defenses every time the Applicant Guidebook has been updated.
The next five months are going to be very interesting times.

ICANN appoints new Ombudsman

ICANN has named Kiwi lawyer Chris LaHatte as its new Ombudsman.
The appointment, which runs for an initial period of two years from July 28, was made during a board meeting last Thursday, and revealed today.
LaHatte said this of his qualifications, on the ICANN blog:

I am an experienced mediator and lawyer and have practiced in New Zealand, Taiwan and Central Asia. I qualified as a lawyer from the University of Auckland and earned a Masters Degree in Dispute Resolution from Massey University, with judicial settlement conferences as my thesis. I am a Fellow of the Arbitrators and Mediators Institute of New Zealand, a mediator for the New Zealand Law Society on cost issues and a construction law adjudicator.

While his experience appears to be primarily in the construction industry, he seems to have at least a bit of domain savvy already, given that he owns his last name under .co.nz.
LaHatte replaces interim Ombudsman Herb Waye, who stood in following the departure of his old Mountie colleague Frank Fowlie, ICANN’s first Ombudsman, who quit in January.
The Ombudsman role was set up to handle complaints about the organization. It is often criticized for being relatively toothless.

Big Content calls for government new gTLD oversight

The music, movie and advertising industries have backed a US move that could see governments getting more control over the approval of new top-level domains.
They’ve urged the National Telecommunications and Information Administration to keep a proposed rule that would force ICANN to show a new gTLD is in the “global public interest” before giving it the nod.
But they are opposed by many other stakeholders who responded to the NTIA’s Further Notice Of Inquiry on the renewal of ICANN’s IANA contract.
The FNOI resulted in about 35 responses, from companies and organizations on five continents.
The most controversial question posed by the NTIA was whether the IANA contract should include this provision:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

This was broadly interpreted as a way for governments to have a de facto veto over new gTLD applications, via ICANN’s Governmental Advisory Committee.
The proposed measure has now been supported by the Recording Industry Association of America, the Association of National Advertisers, and the Coalition for Online Accountability, which represents the music and movie industries.
Brand owners want another bite
In his strongly worded response, ANA president Robert Liodice wrote that the new gTLD program “is likely to cause irreparable injury to brand owners”, adding that it supported the NTIA’s proposal.

[It] provides a layer, however thin, of contractual protection that gTLDs will not be deposited to the authoritative root zone without appropriate justification. While the ANA believes that these protections are marginal at best, and that a more secure, safe and permanent solution must be found to prevent the harms to brand owners and consumers described above; nonetheless, “something is better than nothing”

Special interests
The RIAA said in its filing that it “strongly supports” the proposal, on the basis that it thinks .music, if approved as a gTLD, could lead to more online music piracy.

there are no concrete obligations in the latest application guidebook to implement heightened security measures for these types of gTLDs that are focused on particular industries such as record music. Given the the risk that such a gTLD application could pass through the ICANN process without committing to such measures, it should be incumbent on the IANA contractor to document how its entry into the root would meet the “global public interest” standard.

It’s a drum the RIAA, never afraid of making special-interest arguments on matters of internet governance, has been beating for some time.
It stopped short of asking for all existing TLDs (and IP addresses, in the case of peer-to-peer applications) to be banned outright, which would presumably do much more to prevent piracy.
Oh no you ditn’t!
The COA, which includes the RIAA among its members, has the honor of being the first of ICANN’s critics to raise the Peter Dengate Thrush Situation to officially bash the organization.
PDT, as you’ll recall, joined Minds + Machines, likely to be a volume gTLD applicant next year, just a few weeks after he helped push through ICANN’s approval of the gTLD program.
COA counsel Steve Metalitz wrote:

This development tends to confirm COA’s view that “the new gTLD process, like so much of ICANN’s agenda, has been ‘led’ by only a small slice of the private sector, chiefly the registrars and registries who stand to profit from the introduction of new gTLDs.”
…
If a “check and balance” on addition of these new gTLDs to the root was advisable prior to this announcement, it now appears to be indispensable.

Plenty of ICANN stakeholders on both sides of the new gTLD debate have been calling for a review of ICANN’s ethics policies recently, so the COA is far from alone in highlighting the perception problem PDT’s move, and others, may have created.
It looked dodgy, and people noticed.
But on the other hand…
Many responses to the FNOI take the opposing view – saying that the “global public interest” requirements appear to run contrary to IANA’s technical coordination mandate.
IANA’s statement of work, which mandates IANA staff independence from ICANN policy-making, seems like a very odd place to introduce a vague and highly policy-driven oversight check.
Opposition came from the gTLD registry community and likely applicants, as you might expect, as well as from a number of ccTLD operators, which was perhaps less predictable.
A typical response, from the ccNSO, was:

While recognising and supporting the need for ensuring that new gTLDs have consensus support and are consistent with the global public interest, the ccNSO suggests that the IANA contractor’s role should simply be to verify that ICANN has followed the Guidebook process and that all the evaluation criteria (not just the two referred to) have been met.

A number of responses also call for the strict separation of IANA staff from ICANN’s policy-making functions to be relaxed. The way the NTIA’s proposal is currently worded, it’s not clear if IANA’s experts would be able to provide their input to important work.

VeriSign boss leaves domain industry

Former VeriSign chief executive Mark McLaughlin, who resigned last week, is leaving the domain name industry entirely, signing up as the new CEO of Palo Alto Networks, a firewall vendor.
The privately held company is being tipped for an imminent IPO, which could mean a big stock payday for McLaughlin if executed successfully.
The Wall Street Journal quotes McLaughlin today as saying “the upside is on the equity side”.
Coming ahead of the launch ICANN’s top-level domains program, you could have been forgiven for thinking that McLaughlin may have been headhunted by a new gTLD player.
That would have been a heck of an endorsement of the commercial opportunity of new gTLDs, for the head of .com and .net to throw in with the newcomers.
But clearly McLaughlin has realized there’s more money in firewalls.
Smart man.
At VeriSign, founder Jim Bedzos has taken over as CEO while a permanent replacement for the 10-year VeriSign veteran is sought.