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Former ICANN chief speaks out against new TLD morality veto

Kevin Murphy, October 26, 2010, Domain Policy

Former ICANN president and CEO Paul Twomey has expressed his support for rules curbing the ability of international governments to object to new top-level domains.

Twomey’s suggestions could be seen as going even further to limit government powers in the new TLD process than previous recommendations from the community.

The advice came during the ICANN comment period on the so-called “Rec6” recommendations, which previously sought to create an objection process based on “morality and public order” or “MOPO” concerns.

There had been a worry from some elements of the ICANN community that backwards governments could use Rec6 to arbitrarily block controversial new TLDs on national interest grounds.

But a cross-constituency working group, which included a few members of ICANN’s Governmental Advisory Committee, instead developed recommendations that would create a much narrower objections process with a greater emphasis on free speech.

Twomey, who quit ICANN in June 2009, has now expressed broad support for the working group’s recommendations, and suggests a few tweaks to make the process less open to abuse.

He said ICANN “should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group”.

Notably, Twomey has urged ICANN to steer clear of the phrase “national interest”, which appears in the current Rec6 recommendations, and instead use “national law”.

He reasons that giving weight to “national interests” could enable fairly junior civil servants to object to new TLDs without the full backing of their governments or legislation.

phrases such as “perceived national interest” reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase “public policy”. I remember a GAC member many years ago stating that “public policy is anything I decide it is”.

Twomey then recommends that even when a government has an objection based on an actual national law, that law “should only derive from a national law which is in accordance with the principle of international law.”

A law which violated human rights treaties, for example, or which was hurriedly passed specifically in order to scupper a TLD bid, would therefore not be valid grounds for objection.

Twomey’s reasoning here is fascinating and a little bit shocking:

without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.

I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

I’ll leave it for you to speculate about which companies Twomey is referring to here. I don’t think there are many firms in the domain name space that well-funded.

Prior to becoming ICANN’s president, Twomey chaired the GAC as the Australian representative. He’s currently president of Leagle and managing director of Argo Pacific, his own consulting firm.

His full commentary, which delves into more areas than I can get into here, can be found here. The Rec6 working group’s recommendations can be found here (pdf). My previous coverage of the Rec6/MOPO issue can be found here.

New TLDs dominate ICANN board agenda

Kevin Murphy, October 22, 2010, Domain Policy

ICANN has published the agenda for next Thursday’s board meeting and unsurprisingly the new top-level domain process dominates.

The agenda breaks the discussion into several bullet points.

Of interest to absolutely everybody watching the new TLD process is the first bullet – “Update on Timeline”. Everyone wants to know when the Applicant Guidebook will be finalized.

Recently, it became apparent that ICANN seems to view the next draft of the guidebook as a possible candidate for “final” status. As I blogged earlier this week, it could be published in the next two weeks.

The issues of vertical integration of registry and registrar functions, the “Rec 6” objections process, and the Governmental Advisory Committee advice on geographic names are also on the agenda.

The meeting will also discuss the approval of Qatar’s internationalized domain name country-code TLD and the redelegation of the .qa ccTLD to a new entity.

Qatar’s chosen Arabic string was approved back in March, at the same time as other strings that have already been added to the root, so I can only assume that the redelegation issue was what caused the hold-up.

The perennially controversial .xxx application is also due to be wheeled out for another hearing.

ICANN to publish final new TLD rulebook before December

Kevin Murphy, September 26, 2010, Domain Registries

The ICANN board of directors said it will publish the final Applicant Guidebook for new top-level domains before the public meeting in Cartagena this December.

(UPDATE: that statement is not 100% accurate. See this post for an update.)

The decision came at the end of its two-day retreat in Trondheim, Norway yesterday, which seems to have left a number of important issues as yet unresolved.

The matters of registry-registrar cross ownership and morality and public order objections are both still unfinished business, while the intellectual property lobby has at least one bone thrown its way.

On the morality or “MOPO” problem, now known as the “Rec6” problem, the board had this to say:

The Board will accept the Rec6 CWG recommendations that are not inconsistent with the existing process, as this can be achieved before the opening of the first gTLD application round, and will work to resolve any inconsistencies.

The Rec6 working group had recommended a re-framing of the issue that would eliminate the possibility of any one government blocking a new TLD application based on its own laws and interests.

So the board resolution sounds like progress, until you realize that every decision on new TLDs made at the retreat is going to be re-evaluated in light of a shamefully eleventh hour wish-list submitted by the Governmental Advisory Committee on Thursday.

Having failed to get what it wanted through cooperation with the Rec6 working group, the GAC essentially went over the heads of the GNSO, taking its demands directly to the board.

So much for bottom-up policy making.

Resolved (2010.09.25.02), staff is directed to determine if the directions indicated by the Board below are consistent with GAC comments, and recommend any appropriate further action in light of the GAC’s comments.

In other words, the board may only accept the parts of the Rec6 recommendations that the GAC agrees with, and the GAC, judging from its latest missive, wants the first round of applications limited to purely “non-controversial” strings, whatever those may be.

The board also made no firm decision of the issue of registry vertical integration and cross-ownership. This is the entirety of what it said on VI:

The Board will send a letter to the GNSO requesting that the GNSO send to the Board, by no later than 8 October 2010, a letter (a) indicating that no consensus on vertical integration issues has been reached to date, or (b) indicating its documented consensus position. If no response is received by 8 October 2010, then the Board will deem lack of consensus and make determinations around these issues as necessary. At the time a policy conclusion is reached by the GNSO, it can be included in the applicant guidebook for future application rounds.

That’s actually borderline amusing, given that the GNSO working group on VI has recently been waiting for hints from the board about what it intends to do, rather than actually getting on with the job of attempting to create a consensus policy.

The bone I mentioned for the trademark crowd amounts to knocking a week off the length of time it takes to resolve a complaint under the Uniform Rapid Suspension policy.

The Trondheim resolutions also make it clear that the ICANN board will only be required to vote on a new TLD application in limited circumstances, such as when an objection is filed.

For all other applications, a staff mechanism for rapidly signing contracts and adding TLDs to the root will be created.

Crunch day for new TLDs

Kevin Murphy, September 24, 2010, Domain Registries

The ICANN board has kicked off a two-day retreat during which it will attempt to finalize the rules for applying for new top-level domains.

The big question for many is this: are more delays or the cards, or will ICANN finally put a firm timeline on the first new TLD application round?

One constituency that seems bent on more delays is the intellectual property community.

Dozens of organizations, including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola, told ICANN in late July that the current IP protections in version 4 of the Draft Applicant Guidebook are not good enough.

The proposed Uniform Rapid Suspension process has become bloated and burdensome and the Trademark Clearinghouse does not go far enough to proactively protect trademarks, they say.

Just this week, it emerged that the International Trademark Association has called for further studies into the potential economic harms of new TLDs, which could easily add a couple of quarters of delay.

But there are good reasons to believe ICANN is done with being pushed around by IP interests.

As I reported earlier this week, chairman Peter Dengate Thrush has recently publicly stated that the current state of intellectual property protection in the DAG is a compromise position reflecting the views of all stakeholders and that IP lawyers “have had their chance”.

It’s not just IP interests that will be affected by the ICANN board’s discussions this weekend. The board’s decisions on “vertical integration” will make or break business models.

The VI issue, which governs whether registrars can apply for new TLDs and whether registrars can act as registrars, is perhaps the most difficult problem in the DAG. The working group tasked with sorting it out failed to reach consensus after six months of debate.

The DAGv4 currently says, as an explicit placeholder, that there can be no more than 2% cross-ownership of a registry by a registrar and vice versa.

This would mean that registrars that want to get into the TLD game, such as Demand Media’s eNom, would not be allowed to apply.

It may also cause problems for publicly listed registries such as VeriSign and Neustar, or registries that already have registrar shareholders, such as Afilias.

The proposals on the table include raising the ownership cap to 15% to eliminating it altogether.

A move by ICANN to restrict ownership will certainly attract allegations of anti-competitive behavior by those companies excluded, while a move too far in the opposite direction could lead to accusations that the rules do not go far enough to protect registrants.

There are no correct answers to this problem. ICANN needs to find a balance that does the least harm.

Also up for debate will be the rules on how governments and others can object to new TLD applications on “morality and public order” grounds.

Following the report of a working group, which I blogged about here, it seems likely that the term “morality and public order” will be replaced entirely, probably by “Objections Based on General Principles of International Law”.

If the board adopts the recommendations of this “Rec6” working group, there will be no special provision in the Guidebook for governments to make objections based on their own national laws.

There’s also the suggestion that ICANN’s board should have to vote with a two-thirds super-majority in order to deny a TLD application based on Rec6 objections.

It’s another almost impossible problem. Some say the Rec6 recommendations as they currently stand are unlikely to appease members of the Governmental Advisory Committee.

In summary, ICANN’s board has just two days to define the competitive parameters of a market that could be worth billions, figure out how to politely tell some of the world’s largest IP rights holders to back off, and write the rule-book on international governmental influence in the new TLD process.

I predict a small boom in sales of coffee and pizza in the Trondheim region.

ICANN urged to kill new TLD morality veto

Kevin Murphy, September 17, 2010, Domain Services

ICANN has been asked to eliminate references to “morality and public order” objections from its new top-level domain application process.

A cross-constituency working group has advised ICANN’s board of directors to scrap the term and to ensure that whatever replaces it does not enable individual governments to veto new TLDs based on their own local laws.

The so-called “MOPO” or “MAPO” part of the Draft Applicant Guidebook attracted criticism because ICANN’s Governmental Advisory Committee seemed to want to use it to grant themselves the right to block any TLD application they deemed too controversial.

The fear from the GAC was that if nations started blocking whole TLDs at their borders, it could ultimately lead to the fragmentation of the DNS root.

The fear elsewhere was that some edgy TLD applications, such as .gay or .sex, could be rejected due to the unilateral objections of backward regimes, harming freedom of speech.

But if ICANN incorporates the working group’s new recommendations into the next version of the DAG, that probably won’t be allowed to happen.

The group this week forwarded an interim report to the ICANN board for its consideration. While incomplete, it already carries a few recommendations that managed to find consensus.

Notably, the report recommends that, “National law not based on international principles should not be a valid ground for an objection”, which would seem to scupper any chances of Uganda or the Holy See blocking .gay, for example.

The working group has so far failed to reach consensus on how governmental objections should be registered and processed, but one option is:

The Applicant Guidebook should allow individual governments to file a notification (not an objection) that a proposed TLD string is contrary to their national law. The intention is that an “objection” indicates an intent to block, but a “notification” is not an attempt to block, but a notification to the applicant and the public that the proposed string is contrary to the government’s perceived national interest. However, a national law objection by itself should not provide sufficient basis for a decision to deny a TLD application.

The working group, which counted a few GAC members among its number, has managed to unanimously agree that the awkward term “morality and public order” should be dumped.

One possible contender to replace it is “Objections Based on General Principles of International Law”.

The group has also discussed the idea that a supermajority vote could be required if the board decides to reject a TLD application based on a MOPO objection.

The report is a work in progress. The working group expects to send an updated document to the ICANN board shortly before its retreat later this month.

Whether any of this will be acceptable to the GAC as a whole is up for debate.

Governments want morality veto on new TLDs

Kevin Murphy, August 6, 2010, Domain Registries

ICANN’s Governmental Advisory Committee wants to be able to kill off new top-level domain applications on cultural and religious grounds.

The GAC has finally broken its radio silence on the “morality and public order” or “MOPO” issue that was such a hot topic at the Brussels meeting in June.

A letter to ICANN (pdf), sent by Canadian GAC chair Heather Dryden, leaves little room for doubt where the GAC stands.

The GAC firmly believes that the absence of any controversial strings in the current universe of top-level domains (TLDs) to date contributes directly to the security and stability of the domain name and addressing system (DNS) and the universal resolvability of the system.

As a matter of principle… the GAC believes that the object of stability, security, and universal resolvability must be preserved in the course of expanding the DNS with the addition of new top-level domains.

This is actually quite powerful stuff.

The GAC is basically saying that no new TLDs should be introduced that would be unacceptable to the lowest common denominator world government.

Think Uganda, asked to make a call on .gay.

Think about any oppressed ethnic group without a territory that wants to apply for its own TLD.

The GAC wants ICANN to create a process for governments and others to object to TLD applications on religious, cultural, linguistic, national and geographical grounds.

It could even result in .xxx being objected to, even though it’s technically part of the 2005 round of new TLDs – the GAC wants the objection process to apply to “all pending and future TLDs”.

Round-up of the ICANN new TLDs comment period

Today is the deadline to file comments on version four of ICANN’s Draft Applicant Guidebook for prospective new top-level domain registries.

Of the few dozen comments filed, the majority involve special pleading in one way or another – everybody has something to lose or gain from the contents of the DAG.

That said, I’ve read all the comments filed so far (so you don’t have to) and lots of good points are raised. It’s clear that whatever the final Applicant Guidebook contains, not everybody will get what they want.

Here’s a non-comprehensive round-up, organized by topic.

Trademark Protection

Trademark holders were among the first to file comments on DAG v4. As I’ve previously reported, Lego was first off the mark with an attempt to convince ICANN that the concerns of the IP lobby have not yet been resolved.

Since then, a few more of the usual suspects from the IP constituency, such as Verizon and InterContinental Hotels, have filed comments.

The concerns are very similar: the Universal Rapid Suspension process for trademark infringements is too slow and expensive, the Trademark Clearinghouse does not remove cost or prevent typosquatting, not enough is done to prevent deadbeat registries.

Verizon, a long-time opponent of the new TLD program and a rigorous enforcer of its trademarks, used its letter to raise the issue of cybercrime and hit on pressure points relating to compliance.

It brings up the KnujOn report (pdf) released in Brussels, which accused ICANN registrars of being willfully blind to customer abuses, and the fact that ICANN compliance head David Giza recently quit.

Two IP-focused registrars also weighed in on trademark protection.

Com Laude’s Nick Wood filed a very good point-by-point breakdown of why the URS process has become too bloated to be considered “rapid” in the eyes of trademark holders.

Fred Felman of MarkMonitor covers the same ground on rights protection mechanisms, but also questions more fundamentally whether ICANN has shown that the new TLD round is even economically desirable.

Felman has doubts that new gTLDs will do anything to create competition in the domain name market, writing:

the vast majority of gTLDs currently being proposed in this round are gTLDs that hide traditional domain registration models behind a veil of purported innovation and creativity

Well, I guess somebody had to say it.

Fees

There are concerns from the developing world that $185,000, along with all the associated costs of applying for a TLD, is too steep a price to pay.

The “African ICANN Community” filed a comment a month ago asking ICANN to consider reducing or waiving certain fees in order to make the program more accessible for African applicants.

Several potential TLD registries also think it’s unfair that applicants have to pay $185,000 for each TLD they want to run, even if it’s basically the same word in multiple scripts.

Constantine Roussos, who intends to apply for .music, reiterated the points he brought up during the ICANN board public forum in Brussels last month.

Roussos believes that applicants should not have to pay the full $185,000 for each non-ASCII internationalized domain name variant of their primary TLD.

He wrote that he intends to apply for about six IDN versions of .music, along with some non-English Latin-script variants such as .musique.

Antony Van Couvering of registry consultant Minds + Machines and .bayern bidder Bayern Connect both echo this point, noting that many geographical names have multiple IDN variants – Cologne//Koeln/Köln, for example.

Roussos also notes, wisely I think, that it appears to be a waste of money paying consultants to evaluate back-end registry providers for applicants who choose to go with an recognized incumbent such as VeriSign, NeuStar or Afilias.

Another request for lower fees comes from the Japan Internet Domain Name Council, which thinks geographical TLD applications from small cities should receive a discount, as well as a waiver of any fees usually required to object to a third-party application.

Contended Strings and Front-Running

Of the known proposed TLDs, there are several strings that will very likely be contended by multiple bidders. This has led to maneuvering by some applicants designed to increase their chances of winning.

Roussos suggested that applicants such as his own .music bid, which have made their plans public for years, should be awarded bonus points during evaluation.

This would help prevent last-minute con artists stepping in with “copy-paste” bids for widely publicized TLDs, in the hope of being paid off by the original applicant, he indicated.

Roussos thinks the amount of work his .music has done in raising community awareness around new TLDs has earned the company extra credit.

It’s a thought echoed by Markus Bahmann, dotBayern’s chairman, and his counterpart at dotHamburg.

The opposing view is put forward by rival .bayern bidder Bayern Connect’s Caspar von Veltheim. He reckons such a system would put “insiders” at an unfair advantage.

M+M’s Van Couvering also said he opposes any applicant getting special treatment and added that M+M wants an explicit ban on trademark front-running included in the DAG.

Front-running is the practice of registering a TLD as a trademark in order to gain some special advantage in the new TLD evaluation process or in court afterward.

(M+M’s owner, Top Level Domain Holdings, has reportedly been front-running itself – attempting to defensively register trademarks in the likes of .kids, .books and .poker, while simultaneously trying to fight off similar attempts from potential rivals.)

Roussos of .music responded directly to M+M this afternoon, presenting the opposite view and promising to use its trademarks to defend itself (I’m assuming he means in court) if another .music applicant prevails.

Rest assured that if we, as .MUSIC are faced with the possibility of being gamed and abused in a manner that we find illegal, we will use our trademarks and other means necessary to do what we have to do to protect ourselves and our respective community.

He said .music is trademarked in 20 countries.

Morality and Public Order

This was a hot topic in Brussels, after the ICANN Governmental Advisory Committee agreed that it did not like the “MOPO” objection provisions of DAG v4, but could not think of a better replacement.

MOPO would give a way for governments to scupper bids if they do not like the morality implications. Anybody applying for .gay, for example, would have to deal with this kind of nonsense.

Jacob Malthouse of BigRoom, one of the would-be .eco bidders, reckons ICANN should treat the GAC the same as it treated the GNSO on the issue of vertical integration – remove MOPO from the DAG entirely in order to force the GAC to come up with something better.

The GAC had previously said it would address the MOPO issue in its comments on DAGv4, but its filing has not yet appeared on the ICANN site.

There’s a GNSO working group over here, but M+M’s Van Couvering notes that no GAC members have got involved post-Brussels.

Terrorism

Two commentators objected to the idea that an applicant could be rejected for involvement in “terrorism”, a term that DAGv4 does not define.

I reported on this a few days ago, but since then Khaled Fattal of the Multilingual Internet Group has filed a surprising rant that seems to indicate he has way more beef than really necessary.

Here’s a few quotes mined from the full comment:

it will alienate many in the international community who will choose not to take part in future ICANN processes including its New gTLDs, distrusting ICANN’s motives, or actively choosing to boycotting it, and causing many to seriously start re-considering alternatives.

as a Syrian born Arab American would I pass the IvCANN terrorism verification check as they are? After all Syria, my country of birth, is on the U.S. Government list of states sponsor of terrorism? And I admit, I do know an “Osama”, does that disqualify me? I Forgot to add, “Osama Fattal” a cousin. So would I pass or fail this check?

The arbitrary inclusion of terrorism as a measuring stick without any internationally recognized laws or standards is wrong and offensive to many around the world. If acted upon, it will be seen by millions of Muslims and Arabs as racist, prejudicial and profiling and would clearly indicate that ICANN has gone far beyond its mandate.

Vertical Integration and .brand TLDs

The issue of whether registries and registrars should be allowed to own each other is a thorny one, but there’s barely any mention at all of it in the DAGv4 comments filed so far.

The DAGv4 language on VI, which effectively bans it, is a place-holder for whatever consensus policy the GNSO comes up with (in the unlikely event that its working group ever gets its act together).

Most efforts on VI are therefore currently focused in the GNSO. Nevertheless, some commentators do mention VI in their filings.

Roussos of .music wants .music to be able to vertically integrate.

Abdulaziz Al-Zoman of SaudiNIC said VI limits should be removed to help applicants who need to turn to third-party infrastructure providers.

From the IP lobby, Celia Ullman of cigarette maker Philip Morris notes that there’s nothing in DAGv4 about single-registrant .brand TLDs. She writes:

would this mean that trademark owners owning a gTLD would need to open the registration procedure to second-level domain names applied for to third unrelated parties? In this case, what would be the incentive of actually registering and operating such a gTLD?

Clearly, the idea that a .brand would have to be open to all ICANN registrars on a non-discriminatory basis is enough to make any trademark attorney choke on their caviare.

JPNIC, the .jp ccTLD operator, also points out that DAGv4 says next to nothing about .brand TLDs and strongly suggests that the final Applicant Guidebook spells out just what a registry is allowed to do with its namespace (lawsuits are mentioned)

Disclaimer

I’ve paraphrased almost everybody in this article, and I’ve done it rather quickly. Despite my best efforts, some important nuance may have been lost in the act.

If you want to know what the commentators I’ve cited think, in their own words, I’ve linked to their comments individually throughout.

I may update this post as further comments are filed.

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