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Spurned applicant crowd-funding to fight ICANN for .gay gTLD

Kevin Murphy, August 26, 2016, Domain Registries

The community-driven applicant for .gay is attempting to raise hundreds of thousands of dollars via crowd-funding to challenge a series of adverse decisions that look set to lock it out of running the gTLD.

Alongside the fundraising, dotgay LLC has launched an extraordinary broadside at its frustrators, accusing ICANN of “discrimination” and rival applicants of trying to “exploit” the gay community.

The company wants to raise $360,000 via this Generosity.com page, “to challenge decisions that have stalled community efforts for .GAY.”

Although the campaign has been running for 23 days, so far only three people (including a former employee) have donated a total of $110.

Given the vast number of LGBTQIA organizations that have lent their support to dotgay, I can only assume a lack of publicity is to blame for the $359,890 shortfall.

A five-minute video announcing the campaign has been on YouTube since August 3, but at time of writing has only been viewed 100 times.

In the video, embedded below, dotgay says that only it can properly represent the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Ally) community.

ICANN is dividing the community by accepting the Economist Intelligence Unit’s decision that the company should fail its Community Priority Evaluation (largely because the TQIA are not necessarily “gay”), the video voiceover suggests.

This is an old game that highlights how LGBTQIA continue to be disadvantaged and discriminated against. If .gay is not recognized as a community domain, ICANN will simply auction the namespace to the highest bidder and pocket the proceeds. If ICANN assigns to the right to operate the registry for .gay to a company seeking to exploit it for profit — very possibly without community participation in policy development for the domain, or taking into consideration LGBTQIA interests and concerns — the community will have no assurances .gay will be s safe space on the internet… In the end, ICANN and the three other applicants for the .gay domain have shown no respect for the global gay community’s wishes.

Neither the video not the crowdfunding page specify exactly what the $360,000 would be used for.

However, in order to challenge the CPE decision(s) against it, a lawsuit or an Independent Review Process — either of which could wind up costing over a million dollars — would be the most usual avenues of attack.

Perhaps eager to avoid the possibility of a legal challenge, the three other applicants — Minds + Machines, Rightside and Top Level Design — this week wrote to ICANN to demand a hasty resolution of the long-running saga.

Writing on behalf of all three, Rightside VP Statton Hammock wrote (pdf):

It has been more than FOUR years since the Applicants filed their applications for .GAY. Since this time long ago, dotGay has filed THREE community objections, one against each of the Applicants; TWO community priority applications, ONE Independent Review Panel request (later withdrawn) and ONE motion for reconsideration with the BGC which has been carefully considered by the members of that Committee and found insufficient to be granted. In total dotGay has had SIX “bites of the apple” and has been unsuccessful each time… It is simply time for the Board to affirm these decisions and allow the .GAY applications to proceed to contention set resolution.

The ICANN board had been due to consider dotgay’s latest Request for Reconsideration at at a meeting August 9, but the agenda item was removed, the letter notes. The applicants called on the board to meet again soon to make a decision.

After the board processes the RfR, .gay would presumably go to auction. Whether the auction resulted in ICANN pocketing the cash (as dotgay claims) or being distributed between the three losing applicants remains to be seen.

Whether the auction is public or private, the crowdfunding campaign strongly suggests that dotgay does not currently have the resources to win.

ICANN lawyers slam “fire him” story “blogger”

Kevin Murphy, August 15, 2016, Domain Policy

ICANN lawyers have launched an extraordinary attack on a “blogger” who recently wrote an article headlined “ICANN’s general counsel should lose his job over this”.

Early Friday, ICANN’s board of directors issued its response to the recent Independent Review Process case in which new gTLD applicant Dot Registry managed to show that the board had breached its transparency and accountability bylaws.

The board resolution did not say what is going to happen to Dot Registry’s four new gTLD applications, due to lack of guidance from the IRP panel.

But it did contain a surprising retaliation against Chris Williams, a reporter for online news site The Register, referring to “factual inaccuracies that have been reported in online blogged reports”.

(Before going any further, some disclosure: I freelanced for The Register for several months about five years ago, when Williams was the copy editor I sometimes had to work with. I also worked directly under its current group editor for about five years at a different publication in the early-mid 2000s.)

In the rationale accompanying its resolution last week, the board said:

the Board also notes that there have been online blogged reports about what the [IRP] Final Declaration actually says, yet many of the items reported on have been factual inaccuracies

I immediately grew worried that the resolution was having a pop at this site. But it actually refers to The Register, a news site with millions of readers that, despite its tabloid style, is not usually described as a “blog”.

The board ordered the simultaneous release of their staff-prepared briefing notes (pdf) for the meeting at which the resolution was passed, which contain an 800-word rebuttal of Williams’ August 3 article “Simply not credible: The extraordinary verdict against the body that hopes to run the internet”.

The article covers the Dot Registry IRP decision in a tone that is harshly critical of ICANN.

It is particularly critical of ICANN’s legal team and specifically general counsel John Jeffrey and notes that he makes a tonne of cash due to his regular, generous pay rises.

I compared each point in the rebuttal to the original article and I think ICANN is generally on fairly safe ground in some of what it says are inaccuracies.

In other cases, the rebuttal instead takes issue with the opinion of a third party quoted in the piece, or with a different, but in my view fair, characterization of the IRP declaration.

It seems the Reg article did incorrectly conflate “ICANN staff” and the “ICANN legal team” in at least one instance, as the ICANN rebuttal claims.

It also does in fact quote sections of “the [IRP] Panel’s recitation of Dot Registry’s claims as if they are the Panel’s own finding” as the rebuttal says it does.

But the actual findings of the panel were arguably much harsher than the text the Reg quoted.

So why is the ICANN board of directors passing a resolution addressing the veracity of a news report rather than the real concerns raised by the IRP declaration?

Column yards of horseshit are written about ICANN on a daily basis — I’m probably responsible for an inch or two myself — so why has ICANN zeroed in on this particular piece?

Could it be because Williams’ follow-up piece, August 4, leads with Dot Registry CEO Shaul Jolles calling for the head of Jeffrey? Jolles is quoted as saying:

ICANN’s general counsel should lose his job for this. The advice that he gives, everything was processed through him. It’s shocking.

There’s a rich irony at work here.

The main takeaway from the IRP’s declaration was that the ICANN board sometimes rubber-stamps resolutions drafted by ICANN staff without doing its due diligence.

The Reg then reported that fact.

In response, ICANN staff drafted a resolution designed to shoot the messenger, deflecting attention from the IRP’s findings, which the board then approved without amendment.

If somebody over at ICANN is chagrined about inaccurate reporting, I can’t help but feel that the best way to deal with that would be to request a correction or publish a rebuttal in the form of a blog post or some other kind of statement.

Using the very method under scrutiny — staff drafts, board approves — to issue a rebuttal simply serves to highlight the failings outlined by the IRP panel.

Compounding this, the only reason we’re able to see the full rebuttal today is that the board approved a (staff-drafted) resolution authorizing the concurrent publishing of staff briefing materials.

Usually, briefing materials are published alongside formal minutes when they are approved many weeks later.

If the ICANN board is able to publish briefing materials just a couple of days after passing its resolutions, why on Earth does it not do so as a matter of course?

Did any member of the ICANN board raise her or his hand to ask why these materials had to be published with such haste?

Can ICANN only be transparent in a timely fashion when its lawyers have been criticized in the press?

$41m auction loser tries to slam brakes on .shop

Kevin Murphy, February 1, 2016, Domain Registries

Lawyer-happy gTLD applicant Commercial Connect has put GMO Registry’s $41 million purchase of the new gTLD .shop in jeopardy by filing an appeal with ICANN.

On January 26 — the day before the .shop auction — the Connecticut-based company filed an Independent Review Process complaint with ICANN, asking a panel of judges to enjoin ICANN from delegating .shop or even signing a registry contract with GMO.

It’s applied for “emergency” relief. Its full IRP complaint has yet to be filed.

GMO won a seven-way ICANN auction for .shop last week, agreeing to pay $41.5 million into ICANN coffers.

The IRP news will not be particularly surprising for anyone who has followed the .shop contention set closely.

Commercial Connect has deployed pretty much every legal avenue available to it in order to win .shop, which had eight competing applications.

It applied as a “community” applicant, but unsurprisingly failed to meet the stringent criteria that a Community Priority Evaluation requires.

It scored a measly 5 out of the 16 available CPE points, missing the 14-point target.

The company also spunked goodness knows how much cash filing 21 formal objections against other gTLD applicants — ridiculous complaints that “.supply” or “.セール” or “.services” were “confusingly similar” to .shop.

It actually managed to win two of its string similarity challenges, when panelists apparently decided to write their judgments before their morning coffee had kicked in.

It was probable that .shopping and .通販 would be confused with .shop in the mind of the average internet user, these panelists decided.

The .通販 decision was thrown out when sanity prevailed, but the .shopping decision stood. Only a recent back-room deal between Uniregistry and Donuts prevented the .shop auction being a head-explodingly confusing mess.

Now, with its IRP, Commercial Connect is claiming that the whole CPE system goes against ICANN rules.

According to its initial complaint, the fact that the CPE adjudicator, the Economist Intelligence Unit, came up with its own supplemental “CPE Guidelines” means that the the CPE system is not “ICANN policy” and should therefore be disregarded.

At first glance, it seems weak. But I said the same about the DotConnectAfrica IRP case, which DCA won.

IRP panels have been known to be somewhat “activist” (not necessarily a bad thing) recently, so it’s hard to call which way they will swing in any specific case.

But it does seem quite possible that the emergency relief that Commercial Connect requests — that is, no .shop contract until the IRP is over — will be granted.

For GMO, that means it’s just spent $41.5 million on a gTLD it probably won’t be able to launch for well over a year.

It’s perhaps interesting that Commercial Connect doesn’t seem to make any reference in its IRP to its original 2000-round application for .shop.

If that comes up in future filings, it could open up an entirely new can of worms.

ICANN win leaves door open for plural gTLD rethink

Kevin Murphy, October 12, 2015, Domain Policy

ICANN has fought off an appeal by .webs gTLD applicant Vistaprint, in a case that considered the coexistence of singular and plural gTLDs.

While ICANN definitively won the Independent Review Process case, the IRP panel nevertheless invited its board of directors to consider whether Vistaprint should be given a chance to appeal a decision that ruled .webs too similar to .web.

Vistaprint runs a web site building service called Webs.com. It filed two applications for .webs — one “community” flavored, one vanilla — but then found itself on the losing end of a String Confusion Objection filed by rival Web.com, one of the many .web applicants.

It was one of the few instances where a SCO panel decided that a plural string was too confusingly similar to its singular for the two to coexist.

In many other cases, such as .auto(s), .fan(s) and .gift(s), the two strings have been allowed to be delegated.

Not wanting to have to fight for .webs at auction against eight .web applicants — which would likely cost eight figures to win — Vistaprint filed a Request for Reconsideration (which failed), followed by an last-ditch IRP complaint.

But its three-person IRP panel ruled on Friday (pdf) that ICANN did not violate its bylaws by accepting the SCO decision and subsequently rejecting the RfR.

However, the panel handed Vistaprint a silver lining that may eventually give the company what it wants. Even though ICANN won, Vistaprint may not necessarily have lost.

The panel wrote:

the Panel recommends that ICANN’s Board exercise its judgment on the question of whether an additional review mechanism is appropriate to re-evaluate the Third Expert’s determination in the Vistaprint SCO, in view of ICANN’s Bylaws concerning core values and non-discriminatory treatment, and based on the particular circumstances and developments noted in this Declaration, including (i) the Vistaprint SCO determination involving Vistaprint’s .WEBS applications, (ii) the Board’s (and NGPC’s) resolutions on singular and plural gTLDs, and (iii) the Board’s decisions to delegate numerous other singular/plural versions of the same gTLD strings.

In other words, ICANN has been invited to consider whether Vistaprint should be able to appeal, using a similar mechanism perhaps to that which was offered to other applicants that suffered from inconsistent, adverse SCO decisions.

At time when ICANN’s accountability is under international scrutiny, it’s highly likely that the board will give this recommendation some thought.

The IRP declaration does not reflect well on ICANN’s current level of accountability.

As usual, ICANN tried to wriggle out of accountability by attempting to castrate the panel from the outset, arguing again that IRP panels must be “deferential” to the board — that is, assume that its actions were correct by default — and that its declarations are “advisory” rather than “binding”.

And, as usual, the panel disagreed, saying previous IRP cases show this is now “settled” law. It said that it would evaluate the case “objectively and independently”, not deferentially.

But while it said its declaration was binding “in the sense that ICANN’s Board cannot overrule the Panel’s declaration” it agreed with ICANN that it only had the power to “recommend”, rather than order, remedies.

Acknowledging Vistaprint raised important public interest questions, the panel ordered ICANN to pay 40% of IRP costs.

The Vistaprint IRP was one of the things holding up the .web contention set, so Friday’s declaration moves the fabled gTLD one step closer to reality.

If the company gets the ability to appeal its SCO loss, it would add months to the .web runway. If it does not, it will have to remain in the .web contention set, which would head to auction.

Anger as ICANN’s member flops before board

Kevin Murphy, September 4, 2015, Domain Policy

ICANN’s board of directors came to blows with its key accountability working group this week, over proposals that would give ICANN the community the right to sue ICANN the organization.

An extraordinary three-hour teleconference between the board and the Cross Community Working Group on Enhancing Accountability (CCWG) Wednesday night came across like some kind of weird, Orwellian, passive-aggressive piece of emotional domestic abuse.

The CCWG, a group of volunteers coming from all parts of the ICANN community, has created a set of proposals for improving ICANN’s accountability to the community as part of its transition process away from US government oversight.

The idea is to create sufficient accountability mechanisms so that if in future the entire ICANN board grows goatee beards and turns Eeevil, the community will still be able to hold them to their bylaws commitments.

The CCWG, following the advice of an independent law firm, decided that the best way to do this was to turn ICANN into a membership organization with a “Sole Member”.

This member would be a legal entity run by community members that would have the right under California law to sue ICANN if it ever failed to live up to its bylaws.

For example, if ICANN refused to implement the decisions of an Independent Review Panel, the member could seek to have the ruling enforced by a court.

This is just one of many proposals made by the CCWG currently open for public comment.

Highly unusually for a public comment period, the ICANN board is going to be a commenter in this case. While its comments have not been published yet, it has taken advice from its lawyers at Jones Day that may give an indication of how it is leaning.

Wednesday night’s call was designed to give the board the chance to bring its initial thinking to the CCWG.

Instead, it wound up being almost entirely about the proposed membership model and the board’s statements that while it supported the CCWG’s proposals 100% it also wanted them fundamentally rewritten.

The board wants the idea of a Sole Member model thrown out and replaced with a new arbitration process that would be legally enforceable in California courts.

So, instead of a legal-entity “member” suing ICANN, some as-yet unidentified community entity would take ICANN to arbitration. The decision of the arbitration panel could then be enforced by the courts if ICANN failed to abide by it.

When CCWG members asked who, in the absence of a legal entity, would take ICANN to arbitration and then sue it, the board had no answer. Instead, directors said the CCWG’s legal advisers should talk to Jones Day to hammer out the “technical” details.

Some members claimed that it would be “impossible” to give the community legal standing to sue ICANN without a membership model. Others said that the board’s 11th hour suggested rewrites would make it “impossible” to hit the deadline for a final proposal by the Dublin meeting next month.

At least a third of the 2-hour 47-minute call was wasted as the CCWG struggled to understand the doublespeak the board had brought into the discussion.

Directors continually insisted that they “completely supported” CCWG’s proposals on enforcement “without reservation”, while simultaneously saying the Sole Member model should be thrown out.

Half way through the call, CCWG co-chair Thomas Rickert reflected exasperation among members: “There is obviously difficulty to understand by many on this call how you fully support what we are doing while proposing something which appears like a complete rewrite.”

Shortly thereafter, Chehade responded:

Why don’t we just agree that we are agreeing with you that the community must be able to get enforcement in California courts, that we will ensure that they have the standing to do it without question. And if we are all in agreement that we are in agreement with each other let’s then let the technical people go solve this. If they call come back and tell us that frankly that advice was flawed, then let’s deal with it then in good faith. But that’s what we’re sharing with you.

Directors said that the proposed member model might have unintended consequences, and that the US government may not approve a proposal that overly complicates ICANN’s legal structure.

An hour later, the CCWG was still scratching its head, nerves were beginning to wear, and the tone was getting increasingly testy as the CCWG repeatedly asked the board to explain how it could express support and simultaneously propose an alternative solution.

“There is absolutely no new proposal,” Chehade said, eventually. “We are embracing your proposal and the objectives of the community. Please hear me on this. There is no new proposal.”

He said:

Take your work and break it down: board removal, standing reconsideration, enhancing – getting the IRP back on the track we set, you know, fundamental bylaw, binding arbitration or mechanisms of enforceability. All of the things you have come up with, we are accepting. So when your reaction to our two last hours is that we’re refusing to add any accountability, I don’t know how you come to that frankly…

you yourself in the proposal say that this proposal is not finished, it needs a lot of work. So what we’re saying to you is let’s take this proposal which is not finished and let’s figure out ways to make it real, and real in the next few weeks so we can move forward…

The only area where we are telling you we would like to propose a different mechanism to achieve the same goal is the enforceability.

The whole three hours reminded me of a nightmare-scenario interview where the interviewee has been media-trained up the wazoo and refuses to sway from a set of vaguely scripted talking points.

But which proposal is the right one for ICANN?

Beats me. What does seem quite clear to me is that the board and CCWG are at odds now, despite what ICANN says, and that the expected delivery of a final accountability proposal by Dublin is in serious doubt.

Following the call, ICANN chair Steve Crocker posted a blog post that sought to clarify the board’s position, characterizing it as agreement in principle but disagreement on implementation. He wrote:

We have suggestions on how these [CCWG proposals] could be operationalized. With regards to the mechanisms for community enforceability, where the current proposal still warrants much detail that may not be achievable we have a suggestion on how to deliver on it in a stable way, as increased enforceability must not open up questions of, for example, capture or diminishing of checks and balances.

The Wednesday meeting’s audio, transcript and other notes can all be found here.