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ICANN puts porn gTLDs on hold for no good reason?

Kevin Murphy, July 4, 2014, Domain Policy

In a decision that seems to have come out of nowhere, ICANN has effectively put bids for three porn-themed new gTLDs on hold.

In a June 21 meeting, the board’s New gTLD Program Committee discussed .adult, .sex and .porn, calling them “sensitive strings”.

While it passed no resolution, I understand that ICANN legal staff is delaying the signing of contracts for at least one of these gTLDs while the NGPC carries out its talks.

It’s a surprising development, given that the three strings are not subject to any Governmental Advisory Committee advice, are not “Community” applications, and have not been formally objected to by anyone.

The report from the NGPC meeting acknowledges the lack of a GAC basis for giving the strings special treatment (emphasis added):

The Committee engaged in a discussion concerning applications for several adult-oriented strings in the current round of the New gTLD Program, including .ADULT, .PORN, and .SEX. The applications propose to serve the same sector as the .XXX sponsored TLD. Staff noted that the applications were not the subject of GAC advice, or any special safeguards, other the safeguards that are applicable to all new gTLDs. The Committee considered how the safeguards in the new gTLD Program compare to the safeguards that were included in the .XXX Registry Agreement. The Committee requested staff prepare additional briefing materials, and agreed to discuss the matter further at a subsequent meeting.

This begs the question: why is ICANN giving .porn et al special treatment?

What’s the basis for suggesting that these three strings should be subject to the same safeguards that were applied to .xxx, which was approved under the 2003 sponsored gTLD round?

.porn, .sex and .adult were were applied for under the 2012 new gTLD program, which has an expectation of predictability and uniformity of treatment as one of its founding principles.

Who decided that .sex is “sensitive” while .sexy is not? On what basis?

Is it because, as the NGPC report suggests, that the three proposed gTLDs “serve the same sector” as .xxx?

That wouldn’t make any sense either.

Doesn’t .vacations, a contracted 2012-round gTLD, serve the same sector as .travel, a 2003-round sponsored gTLD? Why wasn’t .vacations subject to additional oversight?

Is it rather the case that the NGPC is concerned that ICM Registry, operator of .xxx, has applied for these three porn strings and proposes to grandfather existing .xxx registrants?

That also wouldn’t make any sense.

.sex has also been applied for by Internet Marketing Solutions, a company with no connection to .xxx or to the 2003 sponsored gTLD round. Why should this company’s application be subject to additional oversight?

And why didn’t .career, which “serves the same sector” as the sponsored-round gTLD .jobs and was applied for by the same guys who run .jobs, get this additional scrutiny before it signed its contract?

It all looks worryingly arbitrary to me.

US winemakers rebel against their government

Kevin Murphy, July 3, 2014, Domain Policy

Groups representing thousands of US winemakers have come out against .wine and .vin, bringing their government’s position on the two proposed new gTLDs into question.

Seven regional associations, representing close to 2,000 wineries, issued a statement last night raising “strong objections” to the gTLDs with “non-existent to grossly insufficient safeguards”.

The joint statement says:

If granted to unscrupulous bidders, second-level domain names such as napavalley.wine or wallawalla.wine could be held in perpetuity by a company or individual that has never seen a vineyard, cultivated fine wine grapes or made a single bottle of wine.

It’s the first mass objection from US winemakers, but they join colleagues from France, Spain and other European Union nations in their opposition to a .wine that does not respect geographic indicators (GIs).

It also makes the US delegation to ICANN’s Governmental Advisory Committee look rather out of touch with the very companies it professes to be looking out for.

At the ICANN 50 meeting in London last week, US rep Suzanne Radell told the GAC:

The three U.S. wineries that our colleagues in Europe have cited as being privy to the exchanges between the European wine industries and the applicants are, in fact, just three U.S. wineries. If I may emphasize, the United States has thousands and thousands of wineries who are quite interested in this matter and do not support the European model of GI protection. So let’s just please put that to bed.

The US winery groups now objecting comprise almost 2,000 wineries. According to Wikipedia, the US has fewer than 3,000 wineries.

We’re looking at a two-thirds majority objection from the US wine-making industry here.

“The coalition of American quality wine regions representing nearly 2,000 U.S. wineries clearly contradicts Radell’s testimony in London on June 22,” the groups said.

The groups also have Californian congresspeople Anna Eshoo and Mike Thompson on their side. As we reported yesterday, Eshoo has already written to ICANN to urge it to kill off .wine.

The big questions are: will this be enough to change the position the US takes to the GAC in future, and will that help the GAC find consensus on anti-.wine advice?

Australia and Canada have also been vocal opponents of the European demands in the past. They’d need to change their minds too, in order for the GAC to find a new consensus.

Without a GAC consensus, the .wine and .vin applicants have little to worry about.

Democrat congressman sides with France on .wine

Kevin Murphy, July 2, 2014, Domain Policy

US Representative Anna Eshoo has written to ICANN’s top brass to express “deep concerns” about the .wine and .vin new gTLDs and urge that they be permanently killed off.

In a letter (pdf) to CEO Fadi Chehade, Eshoo wrote:

it’s my understanding that the .wine and .vin gTLDs have been met with fierce opposition from the wine industry, both here in the US and around the world. Given these concerns, coupled with the complexities of reaching agreement on Geographic Indications (GIs), I urge you to advocate for the .wine and .vin gTLDs to be permanently withdrawn from consideration.

Eshoo, a Democrat, is breaking rank with the official position of the Obama administration on this, which is that no special treatment is warranted for the two wine-related gTLDs.

Europe, on the other hand, is vehemently opposed to the introduction of either without strong protection for GIs.

At ICANN 50 in London last week the European Commission and France led the charge against approval of the gTLDs, with the Commission even floating the idea of legal action at one point.

France, meanwhile, seems ready to throw ICANN’s ambitions for independence under a bus in order to get what it wants.

Eshoo is ranking member of the House Communications and Technology Subcommittee, which recently passed the DOT-COM Act over her protestations that it was “embarrassing”.

She also represents the Silicon Valley area of northern California, which is known for its wineries.

While a handful of US winemakers do have a decidedly European attitude to GI protections, the US Governmental Advisory Committee delegation last week said that only a few out of “thousands” agree with France.

Unanimous support for new ICANN appeals process

Kevin Murphy, June 30, 2014, Domain Policy

The Generic Names Supporting Organization has issued an “unprecedented” statement of “unanimous” support for a new way for ICANN community members to appeal ICANN decisions.

All seven constituency groups signed onto a statement that was read by representatives of registries, non-commercial users and intellectual property interests at the ICANN 50 public forum last week.

“It only took us 50 meetings, but I think the rarity of what you’re witnessing this afternoon sends a very strong message about our views,” the Registries Stakeholder Group’s Keith Drazek said.

This is the meat of the demand:

The entire GNSO joins together today calling for the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community.

Rafik Dammak of the Non-Commercial Users Constituency added that the creation of such a mechanism is “a necessary and integral element of the IANA stewardship transition.”

“The Board’s decisions must be open to challenge and the Board cannot be in a position of reviewing and certifying its own decisions,” he said.

“We need an independent accountability structure that holds the ICANN Board, Staff, and various stakeholder groups accountable under ICANN’s governing documents, serves as an ultimate review of Board/Staff decisions,” said Kristina Rosette of the Intellectual Property Constituency.

What they’re basically looking for is a third way to appeal ICANN decisions beyond the existing Independent Review Process and Request for Reconsideration mechanisms.

IRP is considered too time-consuming and expensive for anyone other than well-funded commercial stakeholders. It cost ICM Registry millions in legal fees to win its IRP in 2010.

RfR, meanwhile, sees the ICANN board review its own decisions, and is only successful (in 15 years it’s only happened once, a week ago) when a requester can bring new evidence to the table.

What the GNSO seems to be looking for is a third way — independent review of ICANN decisions that doesn’t cost a bomb and can be used to reexamine decisions on the merits.

In many ways the demand represents the low-hanging fruit of the amorphous “accountability” discussion that took place at length at the London meeting last week.

ICANN accountability is being examined simultaneously with the proposed transition of the IANA stewardship functions from the US Department of Commerce to a yet-undefined mechanism.

There seems to be broad community consensus that the transition should be linked to improvements in accountability.

During the “constituency day” sessions on Tuesday, during which the ICANN board visits in turn with each GNSO constituency, accountability was the theme common to each and every session.

Time and again, CEO Fadi Chehade pushed the constituency he was addressing to provide some specifics.

“What is accountability and how accountable are we today?” he asked the RySG. “Who are we accountable to for what? We need to get precise before you ask us to answer a question that says when you finish accountability, then you can move to the transition.”

The GNSO statement two days later, which still needs fleshing out with details, appears to be the first step toward providing the precision Chehade wants.

Chehade said multiple times that the accountability review and the IANA transition discussions are “interrelated” but not “interdependent.”

If one were dependent on the other, it would be easier for opponents to stonewall the IANA transition by delaying the accountability review, he said.

“There are people in this community would like the transition from the US government to never happen,” he told the RySG. “They won’t admit it, but there are several, in this room even, who want this to never happen.”

He later told the NCUC that these bogeymen were “not in this room”, highlighting perhaps his belief that one or more gTLD registries is preparing to throw a spanner in the works.

Suspicion immediately fell on Verisign, forcing Drazek to issue a separate statement at the public forum on Thursday denying that the company (his employer) opposes the transition:

VeriSign supports NTIA’s March 14th, 2014 announcement. VeriSign supports NTIA’s four key principles. VeriSign Supports the bottom-up multistakeholder process that is now under way and that we have already been very much engaged. VeriSign supports the target date of September 2015 for transition. We support these things provided the multistakeholder community recommendations for ICANN’s accountability reforms are accepted by NTIA before the final transition, and sufficiently implemented by ICANN subject to measurable deliverables.

It’s not much of a denial, really, more of a clarification of where Verisign stands and confirmation that it wants, as Chehade alluded to, accountability reform prior to the IANA transition.

In my view, accountability is the more important of these two threads.

The Department of Commerce doesn’t actually do much in terms of its hands-on role as steward of the IANA functions as they related to domain names. It merely checks that ICANN’s proper procedures have been followed before signing off on DNS root zone changes.

If sanity prevails in the ICANN community’s transition discussions (and I have no reason to believe it will) whatever replaces the US should be similarly mute and invisible.

However, Commerce’s arguably more important role has been to act as a constant Sword of Damocles, a threat that ICANN could lose its IANA powers if it goes rogue and starts acting (in the US government’s view) against the best interests of the internet community.

That’s a very crude accountability mechanism.

What ICANN needs in future is not a direct replacement of that existential threat, but a mechanism of accessible, independent third-party review that will give the ICANN community and internet users everywhere confidence that ICANN isn’t a loose cannon with its hand on the internet’s tiller.

France slams ICANN after GAC rejects special treatment for .wine

Kevin Murphy, June 26, 2014, Domain Policy

France says that “ICANN is no longer the appropriate forum to discuss Internet governance” after it failed to win support from other governments for special protections in .wine and .vin gTLDs.

The government came to ICANN 50 in London this week apparently determined to secure a Governmental Advisory Committee consensus that .wine should have protection for geographic indicators.

GIs are protected geographic terms such as “Champagne”, “Parma” and “Cheddar” that link a product to the region in which it is traditionally produced. France has a lot of wine-related GIs.

But the GAC — as I think everyone, including France, expected — failed to come to an agreement.

The GAC’s London communique (pdf) reads:

There was further discussion on the issue of .wine/.vin, but no agreement was reached because of the sensitive nature of the matter.

The matter of .wine and .vin was raised at the High Level Governmental Meeting, where some members expressed concerns in terms of ICANN’s accountability and public policy. These concerns are not shared by all members.

In the absence of a consensus GAC objection, the most likely outcome is ICANN pushing the competing .vin/.wine applicants along the contention resolution process to auction.

France has won a lot of media coverage this week, throwing out allegations such as the idea that ICANN is “opaque”, and questioning ICANN’s ability to do its job properly.

Quizzed about France’s statements at a press conference on Monday, ICANN CEO Fadi Chehade pointed out that studies have show ICANN is extremely transparent and wondered aloud whether France’s position is the one where you “scream that everything’s broken when you don’t get what you want”.

Today’s French statement is a little, but not much, more relaxed. Translated, it partially reads:

Current procedures at ICANN highlight its inability to take into account the legitimate concerns of States and to ensure common resource management in the direction of respect for cultural diversity and balance of interests in economic sectors that its decisions affect.

Accordingly, it will propose to its European partners and all other stakeholders to reflect on the future of Internet governance based on transparency, accountability, and equal stakeholders. Commission also believes that ICANN is no longer the appropriate forum to discuss Internet governance.

The government did, however, reiterate its support for the notion of multi-stakeholder internet governance.

French wine producers were less diplomatic. We received a statement from ANEV, the Association Nationale des Elus de la Vigne et du vin, this afternoon that called upon the French government and European Union to block all domain names that use GIs in violation of local law.

Personally, I don’t think that’s going to happen.

During an ICANN session on Monday, the French GAC rep used the .wine controversy to call for the creation of a “General Assembly” at ICANN.

I’m working from the transcript, which has been translated by ICANN into English, and some media reports, but it seems that France is thinking along the lines of an ITU-style, voting-based rather than consensus-based, approach to generating GAC advice. I may be wrong.

During Monday’s press conference, Chehade did not oppose France’s suggestions, though he was careful to point out that it would have to be approved by the whole ICANN community first (implicitly a tall order).

A vote-based GAC could well favor European Union countries, given the make-up of the GAC right now.

On the .wine issue, it’s mainly a few Anglophone nations such as the US, Canada and Australia that oppose extra GI protections.

These nations point out that the GI issue is not settled international law and is best dealt with in venues such as the World Trade Organization and the World Intellectual Property Organization.

France actually says the same thing.

But while France says that ICANN’s refusal to act on .wine jeopardizes GI talks in other fora, its opponents claim that if ICANN were to act it would jeopardize the same talks.

Chehade said during the Monday press conference that France had not yet run out of ways to challenge ICANN’s position on this, so the story probably isn’t over yet.