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Registrars responsible for proxy cybersquatters

Domain name registrars can be liable when their customers break the law, if those customers use a privacy service, according to new ICANN guidance.

The ICANN advisory clarifies the most recent Registrar Accreditation Agreement, and seems primarily pertinent to UDRP cases where the registrar refuses to cooperate with the arbitrator’s request for proper Whois records.

The advisory says:

a Registered Name Holder licensing the use of a domain is liable for harm caused by the wrongful use of the domain unless the Registered Name Holder promptly identifies the licensee to a party providing the Registered Name Holder with reasonable evidence of actionable harm

In other words, if a domain gets hit with a UDRP claim or trademark infringement lawsuit, as far as the RAA is concerned the proxy service is the legal registrant unless the registrar quickly hands over its customer’s details.

Law enforcement and intellectual property interests have been complaining about registrars refusing to do so for years, most recently in comments on ICANN’s Whois accuracy study.

ICANN offers a definition of the word “promptly” as “within five business days” and “reasonable evidence” as trademark ownership and evidence of infringement.

I don’t think this ICANN guidance will have much of an impact on privacy services offered by the big registrars, which generally seem quite happy to hand over customer identities on demand.

Instead, this looks like it could be the start of a broader ICANN crackdown on certain non-US registrars offering “bulletproof” registrations to cybersquatters and other ne’er-do-wells.

I wouldn’t be surprised to find the number of ICANN de-accreditations citing refusal to cooperate with UDRP claims increasing in future.

The new ICANN document is a draft, and you can comment on it here.

ICANN closes .xxx forum after 14,000 comments

Kevin Murphy, May 13, 2010, Domain Policy

ICANN has finally shut down the latest public comment period on the proposed .xxx TLD, and now faces the task of finding the few dozen grains of wheat in about 14,000 pieces of chaff.

It’s general counsel John Jeffrey’s task to provide the round-up on this, possibly record-breaking, public comment period, although I understand ICM Registry may also provide its own, alternative, summary document.

I had a quick chat with Jeffrey yesterday. He told me comments were kept open beyond the advertized Monday shutdown because ICANN staffers are allowed to use their discretion when forums are seeing a lot of activity.

He also noted that the comment period was not a referendum on the merits of .xxx; ICANN had solicited feedback on a specific set of process options on how to handle .xxx.

It’s my impression that the 10,000+ identical form emails from the American Family Association may, rightly, wind up being considered as a single comment.

.jobs seeks comment on dictionary domains

The sponsor organization behind the restricted .jobs domain is soliciting comment on a plan to substantially liberalize the TLD, allowing generic and two-letter registrations.

The Society For Human Resource Management has published a very brief survey, asking HR folk what they think the pros and cons to the plan might be.

The .jobs domain is run by Employ Media. It’s currently restricted to companyname.jobs registrations, and as such has been predictably unsuccessful.

Now Employ Media wants to branch out into geographical and generic domains. As I reported last month, it looks like it’s trying to remove essentially all of its significant registration restrictions.

The attempt at a policy shift follows a deal made with DirectEmployers Association to monetize geographic domains that raised eyebrows at ICANN late last year.

ERE.net has more here.

Porn trade group director says .xxx could be a gTLD

One of the directors of porn industry organization the Free Speech Coalition has suggested the .xxx top-level domain could be approved as an unrestricted gTLD.

Tom Hymes, who sits on the Free Speech Coalition’s board of directors, wrote to ICANN urging it first and foremost to kill ICM Registry’s .xxx application once and for all.

But Hymes went on to say: “If that scenario is unacceptable to the Board for one reason or another, I would then encourage it to explore a gTLD option for ICM.”

He noted that he was writing in a personal capacity, not as a representative of the FSC.

ICM’s application was filed under the 2005 round of “sponsored” TLDs, which meant it had to show backing from a sponsorship organization and some measure of ownership restriction.

For example, the Society for Human Resource Management is the sponsor for .jobs and the Universal Postal Union backed .post.

ICM, which has never been part of the adult entertainment industry, created a policy-making body called the International Foundation For Online Responsibility, IFFOR, to act as its sponsor.

In my view, IFFOR was basically a crude hack to get around the fact that in 2005 ICANN was not looking for any new gTLDs.

The FSC doesn’t like IFFOR, because a) it will make policy on what can be hosted under .xxx domains and b) the adult industry will not control its board or see any of its money.

Hymes, in his personal capacity, seems to be saying that an unrestricted .xxx gTLD would be okay. It’s the first ground I’ve seen anyone in the porn industry give in this debate. He says:

To its credit, the Board is striving to solve the dot xxx imbroglio by dangling a gTLD in front of ICM, a solution ICM thus far has refused to consider. But that sort of suspicious recalcitrance can no longer be tolerated. Instead of threatening to bring a costly lawsuit against ICANN in order to secure control of a policy making regime for which it does not have the required support, ICM should cut its losses, save everyone a lot of money and take the gTLD while it has the opportunity.

I happen to agree, mostly: .xxx would make a heck of a lot more sense, and would be a whole lot less controversial (Christians notwithstanding), as a gTLD.

Unfortunately, I can’t see it happening. Not easily, anyway.

There’s no ICANN process in place for approving gTLDs today, and if ICANN were to choose to kick ICM into the next new gTLD round, there’s a pretty good chance that ICM would find itself fighting a contested string battle with other applications.

From a process point of view, sponsored TLDs are a failed experiment.

AOL loses ICANN accreditation

AOL, one of the first five companies to become an ICANN-accredited registrar, appears to have let its accreditation expire.

The former internet giant is no longer listed on ICANN’s Internic registrar page, and DotAndCo.net’s data shows it lost its .com, .net and .org accreditations on April 27.

It’s hardly surprising. AOL’s profits are falling and it has been reorganizing itself ever since Time Warner returned it to life as an independent company last year.

It’s noteworthy because AOL was one of the first five registrars to challenge Network Solutions’ monopoly, when ICANN introduced competition to the domain name market in 1999.

In April 1999, the company participated in ICANN’s limited registrar “test-bed” experiment, alongside CORE, France Telecom, Melbourne IT and Register.com.

But domain names were never a big deal at the company.

AOL peaked at about 150,000 domains a few years ago and tailed off to a little more than a dozen at the end of 2009. Apparently, the company has decided to let its accreditation simply expire.