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GAC kills .indians and two more dot-brands die

Kevin Murphy, August 27, 2014, Domain Registries

Reliance Industries, owner of the Mumbai Indians cricket team, has withdrawn its application for the new gTLD .indians after an objection from the Indian government.

ICANN’s Governmental Advisory Committee has said in formal advice several times, most recently in March, that India was not cool with the idea of a .indians TLD, but noted that the country stood alone.

Following the Singapore meeting this year, the GAC said: “the Government of India has requested that the application for .indians not proceed.”

As a piece of non-consensus advice, ICANN would have been able to more easily reject India’s objection, but the withdrawal means it will not have to make that decision.

India has a similarly dim view of .ram, which Chrysler has applied for to protect a car brand but which also matches an important deity in the Hindu pantheon. That bid is still active.

But recently we’ve seen two other dot-brand applicants get out of the new gTLD program.

Dun & Bradstreet has just withdrawn its bid for .dnb. Last week, Myriad International Holdings yanked its application for .mih.

After slamming the ccNSO, India joins it

Kevin Murphy, August 20, 2014, Domain Registries

India has become the newest member of ICANN’s country-code Supporting Organization, the ccNSO, just one month after the local registry slammed the group for not representing its interests.

The National Internet Exchange (NIXI), which runs .in, became the 152nd ccNSO member yesterday, according to a note on its website.

I haven’t reported on the first 151 ccTLDs to join, but this one’s interesting because NIXI’s mononymed CEO, Dr Govind, led a charge of criticism against the ccNSO for excluding non-members from the IANA transition review.

In July, Govind complained that a “significant section of the ccTLD Registry operator community do not share the objectives of the ccNSO membership are now excluded from the process.”

By joining the ccNSO, registries agree to follow the policies it creates for ccTLDs (though I understand they may opt out), which has led 103 ccTLDs to stay out of it completely.

Some ccTLDs are primarily concerned that the ccNSO does nothing to dilute or overturn RFC 1591, the 20-year-old standards document that states ccTLDs can only be redelegated with the consent of the incumbent.

Panel slaps ICANN in .africa case

Kevin Murphy, August 18, 2014, Domain Policy

A panel of arbitrators had some stern words for ICANN as it handed controversial .africa gTLD applicant DotConnectAfrica another win in its Independent Review Process case.

In a 33-page procedural ruling (pdf) published by ICANN late Friday, the IRP panel disagreed with ICANN’s lawyers on almost every argument they made, siding with DCA instead.

The panel strongly indicated that it believes ICANN has attempted to render the IRP toothless, after losing the first such case against ICM Registry a few years ago.

The ruling means that ICANN’s top executives and board may have to face hostile cross-examination by DCA lawyers, rather than simply filing written statements with the panel.

It also means that whatever the IRP panel ultimately decides will in all likelihood be binding on ICANN.

DCA filed the IRP with the International Center for Dispute resolution after ICANN, accepting Governmental Advisory Committee advice, rejected the company’s application for .africa.

The ICDR panel has not yet ruled on the merits of the case — personally, I don’t think DCA has a leg to stand on — but last week’s ruling is certainly embarrassing for ICANN.

On a number of counts, ICANN tried to wriggle out of its accountability responsibilities, the ruling suggests.

Primarily, ICANN lawyers had argued that the eventual outcome of the IRP case should be advisory, rather than binding, but the panel disagreed.

The panel noted that new gTLD applicants sign away their rights to sue when they apply for a gTLD, meaning IRP is their last form of appeal against rejection.

It also called into question ICANN’s ability to police itself without a binding decision from an independent third party, pointing to previously reported accountability problems (my emphasis):

The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.

Moreover, assuming for the sake of argument that it is acceptable for ICANN to adopt a remedial scheme with no teeth, the Panel is of the opinion that, at a minimum, the IRP should forthrightly explain and acknowledge that the process is merely advisory. This would at least let parties know before embarking on a potentially expensive process that a victory before the IRP panel may be ignored by ICANN.

The decision is the opposite of what the IRP panel found in the ICM Registry case, which was ruled to be “non-binding” in nature.

While deciding that its own eventual ruling will be precedential, the panel said it did not have to follow the precedent from the ICM case, due to changes made to the IRP procedure in the meantime.

ICANN had also argued against the idea of witnesses being cross-examined, but the panel again disagreed, saying that both parties will have the opportunity “to challenge and test the veracity of statements made by witnesses”.

The hearing will be conducted by video ink, which could reduce costs somewhat, but it’s not quite as streamlined as ICANN was looking for.

Not only will ICANN’s top people face a grilling by DCA’s lawyers, but ICANN’s lawyers will, it seems, get a chance to put DCA boss Sophia Bekele on the stand.

I’d pay good money for a ticket to that hearing.

Governments to get more power at ICANN

Kevin Murphy, August 18, 2014, Domain Policy

Governments are to get more power to influence ICANN’s board of directors.

Under a proposal launched late Friday, ICANN plans to make it harder for the board to reject the often-controversial advice of the Governmental Advisory Committee.

Today, the board is able to reject GAC advice with a simple majority vote, which triggers a consultation and reconciliation process.

Following the proposed changes to the ICANN bylaws, the threshold would be increased to a two-thirds majority.

The change is to be made following the recommendations of the Board-GAC Recommendations Implementation Working Group, made up of members of the board and the GAC.

The new rule would bring the GAC into line with the multistakeholder Generic Names Supporting Organization. The ICANN board also needs a two-thirds vote to reject a formal GNSO recommendation.

The differences between the GAC and the GNSO include the lack of detailed industry awareness GAC members regularly demonstrate during their public meetings, and the fact that GAC advice regularly comprises deliberately vague negotiated language that ICANN’s board has a hard time interpreting.

That disconnect may improve in future due to the recent creation of a GAC-GNSO liaison position, designed to keep the GAC up to date with policy goings-on between the thrice-yearly ICANN meetings.

The proposed bylaws change is open for public comment, but appears to be a fait accompli; the board has already said it will use the higher voting threshold if called to make a decision on GAC advice prior to its formal adoption.

EasyDNS changes take-down policy after man dies

Kevin Murphy, August 15, 2014, Domain Registrars

Canadian registrar EasyDNS has amended its take-down policy after a customer of one of its registrants died of an overdose.

In a frank blog post today, CEO Mark Jeftovic said that the man had died using a “controlled substance” ordered online. The web site in question used a domain registered via EasyDNS.

As a result of the death, and conversations with ICANN and the US Food and Drug Administration, EasyDNS has changed its policy.

It will now turn off any domain used for a pharmacy web site unless the registrant can produce a license permitting it to sell pharmaceuticals in the territories it sells to.

Previously, the company would only turn off a pharmacy-related domain with a court order.

It’s a notable U-turn for the company because Jeftovic is an outspoken critic of unilateral take-down notices.

In January, he referred to the National Association of Boards of Pharmacy as a “batch of clowns” for demanding that EasyDNS and other registrars take down unlicensed pharmacies without court orders.

He also has an ongoing beef with the UK police over its repeated requests for file-sharing and counterfeiting-related domains to be taken down without judicial review.

Jeftovic blogged today:

[I]n one case we have people allegedly pirating Honey Boo Boo reruns and on the other we have people dying. We don’t know where exactly, but the line goes somewhere in between there.

We have always done summary takedowns on net abuse issues, spam, botnets, malware etc. It seems reasonable that a threat to public health or safety that has been credibly vetted fits in the same bucket.

As a private company we feel within our rights to set limits and boundaries on what kinds of business risk we are willing to take on and under what circumstances. Would we tell the US State Department to go to hell if they wanted us to take down ZeroHedge? Absolutely. Do we want to risk criminally indicted by the FDA because of unregulated vicodin imports? Not so much.

You can read his full blog post here.