Employ Media’s fight to avoid losing its contract to run .jobs won’t be resolved this year, according to the latest batch of arbitration documents published by ICANN.
February 2013, two years after the the battle was joined, is now the absolute earliest the company could find out whether ICANN has the right to shut down .jobs due to an alleged contract breach.
As you may recall from deep in the mists of time (actually, February last year) ICANN threatened to terminate Employ Media’s contract due to the controversial .Jobs Universe project.
The registry gave thousands of .jobs domains, mostly geographic or vocational strings, to its partner, the DirectEmployers Association, which started competing against jobs listings sites.
A coalition of jobs sites including Monster.com complained about this on the basis that .jobs was originally designed for companies to list their own jobs, not to aggregate third-party listings.
The coalition believed that the .Jobs Universe project was essentially a fait accompli, despite Employ Media’s promise that all the names now allocated to DirectEmployers would be subject to an open RFP process.
ICANN eventually agreed with the coalition, issued a breach notice, and now it finds itself in arbitration under the auspices of the International Chamber of Commerce.
A face-to-face hearing has now been scheduled for January 28 to February 8, 2013. Between now and December, it’s paper filings – claims and counterclaims – all the way.
Arbitration clauses were added as standard to ICANN’s registry agreements in order to create a cheaper, faster option than fighting out disagreements in the courts.
However, with both sides lawyered up and a process now likely to last at least two years, it’s easy to wonder just how much more efficient it will be.
It won’t be an easy decision for the ICC panel.
While I still believe Employ Media was a bit sneaky about how it won ICANN approval for the .Jobs Universe project – and it certainly disenfranchised other jobs sites – there’s no denying that .jobs is now a much healthier gTLD for registrants as a result of DirectEmployers’ involvement.
An ICANN win might actually be a bad thing.
I’d like to introduce a new jobs feature for DomainIncite readers.
As you’ll be able to see in the sidebar to the left, and in the header above, DI Jobs is now live on the site.
If you’re in the domain name industry you probably already know that most of your colleagues and competitors read DI, so I think this might be a great way for you to find new talent.
I’m using SimplyHired, a third-party service, for the listings. The jobs you can see right now — which may vary based on your IP address — are likely to be what it calls “backfill”.
It’s a bit like Google Adsense, and I’ve been made aware that one or two of the listings might therefore appear to be a bit distasteful to begin with (Whois email address scraping? Really?) but these will be bumped from view once a small number of DI reader jobs are posted.
For now, the top five most recently posted jobs will be listed in the sidebar, and the rest will be accessible via jobs.domainincite.com.
The introductory price for a listing is $90 for 90 days, just a buck a day.
ICANN’s GNSO Council has deferred a decision on whether Verisign should have to thicken up the Whois database for .com and its other gTLDs.
A motion to begin an official Policy Development Process on thick Whois was kicked down the road by councilors this afternoon at the request of the Non-Commercial Users Constituency.
It will now be discussed at the Council’s face-to-face meeting in Costa Rica in March. But there were also calls from registries to delay a decision for up to a year, calling the PDP a “distraction”.
Verisign’s .com registry contract and the standard Registrar Accreditation Agreement are currently being renegotiated by ICANN, both of which could address Whois in some way.
Today, all contracted gTLD registries have to operate a thick Whois, except Verisign with its .com, .net, .jobs, etc, where the registrars manage the bulk of the Whois data.
This year is likely to see a new fight over whether Verisign should be forced to create a “thick” Whois database for .com and its other generic top-level domains.
While Verisign has taken a deliberately ambivalent position on whether ICANN policy talks should kick off, the community is otherwise split on whether a mandatory thick Whois is a good idea.
Currently, only .com, .net, .name and .jobs – which are all managed on Verisign’s registry back-end – use a thin Whois model, in which domain name registrars store their customers’ data.
Other gTLDs all store registrant data centrally. Some “sponsored” gTLD registries have an even closer relationship with Whois data — ICM Registry for example verifies .xxx registrants’ identities.
But in a Preliminary Issue Report published in November, ICANN asked whether it should kick off a formal Policy Development Process that could make thick Whois a requirement in all gTLDs.
In comments filed with ICANN last week, Verisign said:
As the only existing registry services provider impacted by any future PDP on Thick Whois, Verisign will neither advocate for nor against the initiation of a PDP.
Verisign believes the current Whois model for .com, .net, .name and .jobs is effective and that the proper repository of registrant data is with registrars — the entities with direct connection to their customers. However, if the community, including our customers, determines through a PDP that “going thick” is now the best approach, we will respect and implement the policy decision.
Thick Whois services make it easier to find out who owns domain names. Currently, a Whois look-up for a .com domain can require multiple queries at different web sites.
While Whois aggregation services such as DomainTools can simplify searches today, they still face the risk of being blocked by dominant registrars.
The thin Whois model can also make domain transfers trickier, as we witnessed just last week when NameCheap ran into problems processing inbound transfers from Go Daddy.
ICANN’s Intellectual Property Constituency supports the transition to a thick Whois. It said in its comments:
Simplifying access to this information through thick Whois will help prevent abuses of intellectual property, and will protect the public in many ways, including by reducing the level of consumer confusion and consumer fraud in the Internet marketplace. Thick Whois enables quicker response and resolution when domain names are used for illegal, fraudulent or malicious purposes.
However, Verisign noted that a thicker Whois does not mean a more accurate Whois database – registrars will still be responsible for collecting and filing customer contact records.
There are also concerns that a thick Whois could have implications for registrant privacy. Wendy Seltzer of the Non-Commercial Users Constituency told ICANN:
Moving all data to the registry could facilitate invasion of privacy and decrease the jurisdictional control registrants have through their choice of registrar. Individual registrants in particular may be concerned that the aggregation of data in a thick WHOIS makes it more attractive to data miners and harder to confirm compliance with their local privacy laws.
This concern was echoed to an extent by Verisign, which noted that transitioning to a thick Whois would mean the transfer of large amounts of data between legal jurisdictions.
European registrars, for example, could face a problem under EU data protection laws if they transfer their customer data in bulk to US-based Verisign.
Verisign also noted that a transition to a thick Whois would dilute the longstanding notion that registrars “own” their customer relationships. It said in its comments:
As recently as the June 2011 ICANN meeting in Singapore, Verisign heard from several registrars that they are still not comfortable with Verisign holding their customers’ data. Other registrars have noted no concern with such a transition
ICANN staff will now incorporate these and other comments into its final Issue Report, which will then be sent to the GNSO Council to decide whether a PDP is required.
If the Council votes in favor of a PDP, it would be many months, if at all, before a policy binding on Verisign was created.
ICANN has asked the International Chamber of Commerce to rule that it has the right to terminate Employ Media’s .jobs contract.
It’s filed its response to Employ Media’s demand for arbitration over the disputed Universe.jobs service, which saw the registry vastly expand the .jobs space.
Employ Media “transcended the very intent behind creation of the TLD” with Universe.jobs, which allocated tens of thousands of .jobs domains to the DirectEmployers Association, ICANN said.
The organization wants the ICC to rule that it “may, but is not required to, terminate the Registry Agreement with Employ Media”, as it has already threatened.
The registry wants a declaration that it is not in breach.
But according to ICANN, Employ Media is still and has always been restricted to selling domains just to human resources professionals to promote jobs “within their own organizations”.
That’s despite ICANN’s approval of a contract amendment last year that allowed the registry to sell non-companyname .jobs domains.
This liberalization, ICANN says, did not allow the company to launch Universe.jobs, which monetizes at least 40,000 geographical and vocational .jobs through a massive third-party jobs board.
ICANN is now trying to frame the arbitration proceeding around a single question – was its breach notice “appropriate” or not?
The whole debacle is based around two interpretations of the .jobs Charter, which spells out who can register .jobs domains. This is what it says:
The following persons may request registration of a second-level domain within the .JOBS TLD:
– members of SHRM [the Society For Human Resources Management]; or
– persons engaged in human resource management practices that meet any of the following criteria: (i) possess salaried-level human resource management experience; (ii) are certified by the Human Resource Certification Institute; (iii) are supportive of the SHRM Code of Ethical and Professional Standards in Human Resource Management, as amended from time to time, a copy of which is attached hereto.
Employ Media’s interpretation is fairly literal and liberal – any signed-up SHRM member can register a .jobs domain and somebody at DirectEmployers is a member and therefore eligible.
Becoming a SHRM member is pretty straightforward and cheap. It’s not much of a barrier to entry.
ICANN argues that this interpretation is bogus:
Employ Media has espoused policies that allow a .JOBS domain name (or thousands of them) to be used for virtually any purpose as long as a human resource manager is propped up to “request” the domain. In doing so, Employ Media has failed to enforce meaningful restrictions on .JOBS registrations, as required by the Registry Agreement.
It further argues that Employ Media should have allocated premium .jobs domains through an “open, fair and transparent” process, rather than the “self-serving… backroom deal” with DirectEmployers.
Evidence now filed by ICANN shows that the two organizations have been arguing about this since at least November 2009, when Employ Media launched a Universe.jobs “beta”.
ICANN also now says that it has no problem with Universe.jobs, provided that Employ Media and SHRM amend their Charter policies to make the service retroactively compliant.
The more this dispute progresses and the more convoluted and expensive it becomes, the more it leaves me scratching my head.
You can download the latest arbitration documents from ICANN.