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.music and .gay possible in 2018 after probe finds no impropriety

Kevin Murphy, January 2, 2018, Domain Policy

Five more new gTLDs could see the light of day in 2018 after a probe into ICANN’s handling of “community” applications found no wrongdoing.

The long-running investigation, carried out by FTI Consulting on ICANN’s behalf, found no evidence to support suspicions that ICANN staff had been secretly and inappropriately pulling the strings of Community Priority Evaluations.

CPEs, carried out by the Economist Intelligence Unit, were a way for new gTLD applicants purporting to represent genuine communities to avoid expensive auctions with rival applicants.

Some applicants that failed to meet the stringent “community” criteria imposed by the CPE process appealed their adverse decisions and an Independent Review Process complaint filed by Dot Registry led to ICANN getting crucified for a lack of transparency.

While the IRP panel found some hints that ICANN staff had been nudging EIU’s arm when it came to drafting the CPE decisions, the FTI investigation has found:

there is no evidence that ICANN organization had any undue influence on the CPE Provider with respect to the CPE reports issued by the CPE Provider or engaged in any impropriety in the CPE process.

FTI had access to emails between EIU and ICANN, as well as ICANN internal emails, but it did not have access to EIU internal emails, which EIU declined to provide. It did have access to EIU’s internal documents used to draft the reports, however.

Its report states:

Based on FTI’s review of email communications provided by ICANN organization, FTI found no evidence that ICANN organization had any undue influence on the CPE reports or engaged in any impropriety in the CPE process. FTI found that the vast majority of the emails were administrative in nature and did not concern the substance or the content of the CPE results. Of the small number of emails that did discuss substance, none suggested that ICANN acted improperly in the process.

FTI also looked at whether EIU had applied the CPE rules consistently between applications, and found that it did.

It also dug up all the sources of information EIU used (largely Google searches, Wikipedia, and the web pages of relevant community groups) but did not directly cite in its reports.

In short, the FTI reports very probably give ICANN’s board of directors cover to reopen the remaining affected contention sets — .music, .gay, .hotel, .cpa, and .merck — thereby removing a significant barrier to the gTLDs getting auctioned.

If there were to be no further challenges (which, admittedly, seems unlikely), we could see some or all of these strings being sold off and delegated this year.

The probe also covered the CPEs for .llc, .inc and .llp, but these contention sets were resolved with private auctions last September after applicant Dot Registry apparently decided it couldn’t be bothered pursuing the ICANN process any more.

The FTI’s reports can be downloaded from ICANN.

.music and .gay CPE probe could end this month

Kevin Murphy, June 5, 2017, Domain Policy

An ICANN-commissioned investigation into the fairness of its Community Priority Evaluation process for new gTLDs could wind up before the end of June.

In an update Friday, ICANN also finally revealed who is actually conducting the probe, which has been slammed by affected applicants for being secretive.

A tentative timeline sketched out in the update means applicants for gTLDs including .gay and .music could find their applications closer to release from limbo in just a few weeks.

ICANN revealed that FTI Consulting’s Global Risk and Investigations Practice and Technology Practice have been looking into claims ICANN staff meddled in the Economist Intelligence Unit’s supposedly independent CPE reviews for the last several months.

FTI is reviewing how ICANN staff interacted with the EIU during the CPE processes, how the EIU conducted its research and whether the EIU applied the CPE criteria uniformly across different gTLDs.

ICANN said that FTI finished collected material from ICANN in March and hopes to have all the information it has asked the EIU for by the end of this week.

It could deliver its findings to ICANN two weeks after that, ICANN said.

Presumably, there would be little to prevent ICANN publishing these findings very shortly thereafter.

ICANN has been harangued by some of the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which have been affected by controversial CPE decisions and have been delayed by the investigation, for months.

.gay, .music and others in limbo as ICANN probes itself

Kevin Murphy, May 8, 2017, Domain Policy

Several new gTLD applicants have slammed ICANN for conducting an investigation into its own controversial practices that seems to be as opaque as the practices themselves.

Seven proposed new gTLDs, including the much-anticipated .music and .gay, are currently trapped in ICANN red tape hell as the organization conducts a secretive probe into how its own staff handled Community Priority Evaluations.

The now broad-ranging investigation seems have been going on for over six months but does not appear to have a set deadline for completion.

Applicants affected by the delays don’t know who is conducting the probe, and say they have not been contacted by anyone for their input.

At issue is the CPE process, designed to give genuine “community” gTLD applicants a way to avoid a costly auction in the event that their choice of string was contested.

The results of the roughly 25 CPE decisions, all conducted by the independent Economist Intelligence Unit, were sometimes divergent from each other or just baffling.

Many of the losers complained via ICANN’s in-house Requests for Reconsideration and then Independent Review Process mechanisms.

One such IRP complaint — related to Dot Registry’s .inc, .llc, .llp applications — led to two of the three-person IRP panel deciding last July that ICANN had serious questions to answer about how the CPE process was carried out.

While no evidence was found that ICANN had coached the EIU on scoring, it did emerge that ICANN staff had supplied margin notes to the supposedly independent EIU that had subsequently been incorporated into its final decision.

The IRP panel majority wrote that the EIU “did not act on its own in performing the CPEs” and “ICANN staff was intimately involved in the process”.

A month or so later, the ICANN board of directors passed a resolution calling for the CEO to “undertake an independent review of the process by which ICANN staff interacted with the CPE provider”.

Another month later, in October, the Board Governance Committee broadened the scope of the investigation and asked the EIU to supply it with documents it used to reach its decisions in multiple controversial CPE cases.

A couple of weeks ago, BGC chair Chris Disspain explained all this (pdf) to the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which are affected by the delay caused by the investigation.

He said that the investigation would be completed “as soon as practicable”.

But in response, Dot Registry and lawyers for fellow failed CPE applicant DotMusic have fired off more letters of complaint to ICANN.

(UPDATE: Dot Registry CEO Shaul Jolles got in touch to say his letter was actually sent before Disspain’s, despite the dates on the letters as published by ICANN suggesting the opposite).

Both applicants note that they have no idea who the independent party investigating the CPEs is. That’s because ICANN hasn’t identified them publicly or privately, and the evaluator has not contacted the applicants for their side of the story.

DotMusic’s lawyer wrote (pdf):

DotMusic’s rights are thus being decided by a process about which it: (1) possesses minimal information; (2) carried out by an individual or organization whose identity ICANN is shielding; (3) whose mandate is secret; (4) whose methods are unknown; and (5) whose report may never be made public by ICANN’s Board.

He added, pointedly:

The exclusion of directly affected parties from participation eerily reproduces the shortcomings of the EIU evaluations that are under scrutiny in the first place.

Dot Registry CEO Shaul Jolles, in his letter (pdf), quoted Disspain saying at a public forum in Copenhagen this March that a blog post addressing the concerns had been drafted and would be published “shortly”, but wasn’t.

He suggested the investigation is “smoke and mirrors” and, along with DotMusic, demanded more information about the investigator’s identity and methods.

It does strike me as a looking a bit like history repeating itself: ICANN comes under fire for non-transparently influencing a supposedly independent review and addresses those criticisms by launching another non-transparent supposedly independent review.

No matter what I feel about the merits of the “community” claims of some of these applicants, it has been over five years now since they submitted their applications and the courtesy of transparency — if closure itself its not yet possible — doesn’t seem like a great deal to ask.

DotMusic fails the “not gay enough” community test

Kevin Murphy, February 11, 2016, Domain Policy

DotMusic’s Community Priority Evaluation for the .music gTLD has failed, after the CPE panel decided the company was just trying to exploit ICANN rules to get its hands on a valuable string.

In a decision (pdf) published last night, the company score 10 of the available 16 points, four points shy of a passing score. The panel wrote:

The Panel determined that this application refers to a proposed community construed to obtain a sought-after generic word as a gTLD. As previously stated, the community as defined in the application does not have awareness and recognition among its members. Failing this kind of “cohesion,” the community defined by the application does not meet the [Applicant Guidebook’s] standards for a community.

The CPE fell apart at the first hurdle, with the panel awarding 0 out of 4 points on the “community establishment”.

It essentially ruled that the “music community” does not exist, despite frequent statements to the contrary from DotMusic and its legion of supporters.

DotMusic appears to have been condemned for the same reason as dotgay, the failed .gay community applicant.

While DotMusic and dotgay lost points on different criteria, their undoing in both cases was attempting to define a community that their respective panels judged overly broad.

DotMusic’s application included a list of 40 or more North American Industry Classification System categories of industry that it said were within its music community.

However, where it said “music lawyers” or “music accountants”, it referred to the NAICS codes for just “lawyers” and “accountants”, the panel noted.

This seems to have been responsible to a large extent for it losing its points on the “community establishment” criteria.

The CPE panel could said that while its proposed community members exhibited a “commonality of interest” there was no evidence of “cohesion” among them.

Further, no one preexisting organization could be said to cover the interests of the over-broad community as defined. The panel wrote:

There should, therefore, be at least one entity that encompasses and organizes individuals and organizations in all of the more than 40 member categories included by the application. Based on information provided in the application materials and the Panel’s research, there is no entity that organizes the community defined in the application in all the breadth of categories explicitly defined.

A knock-on effect of this was that DotMusic also dropped a point on the “community endorsement” criteria, despite having hundreds of letters of support from members of the music industry.

It dropped a further point because the string “music” only “identifies” but does not “match” its proposed community.

DotMusic will perhaps not take comfort from the fact that its losing score of 10 comprehensively beat rival community applicant Far Further by seven points.

With both community applications ruled invalid, .music should now head to auction, where there are eight applicants in total.

But .music is a bit of a passion project for DotMusic CEO Constantine Roussos — one of the few applicants who publicly announced his intention to apply long before it was possible to do so — so I think an appeal through the ICANN process is inevitable.

While DotMusic has support from powerful music industry figures, I don’t think that support extends to the kind of financial backing that will let it win a seven-to-eight-figure auction.

Don’t expect to see .music in your registrar storefront any time soon.

Radiohead backs .music community bid

Kevin Murphy, December 15, 2015, Domain Registries

Ed O’Brien, guitarist with the band Radiohead, has become the latest musician to throw his support behind DotMusic’s community-based application for the new gTLD .music.

In a letter to ICANN today (pdf), O’Brien said that if DotMusic loses its ongoing Community Priority Evaluation, it will “be setting back the world’s chances of a Fair Trade Music Industry by many years”.

“I challenge The Internet Corporation for Assigned Names and Numbers views that the global music community to which I belong does not exist,” he wrote.

He’s arguably the highest-profile musician to support DotMusic to date. Radiohead have sold over 30 million records and a few years ago O’Brien was ranked by Rolling Stone as the 59th greatest guitarist of all time.

The phrase “Fair Trade Music Industry” appears to have been coined last week at TechCrunch Disrupt by Grammy-nominated musician Imogen Heap, another one of DotMusic’s celebrity supporters.

It refers to the notion that artists should be fairly compensated for their work, opposing services such as Spotify, which reportedly pays artists less than a tenth of a cent every time one of their songs is played.

Both Heap and Radiohead are noted for their innovative uses of technology in their music (for example, listen to Radiohead’s incredible 1997 album OK Computer, bootlegs of which are available to stream for free on YouTube).

Radiohead is also known for its love-hate relationship with internet-based music business models.

In 2007, Radiohead released a new album for free on its web site, allowing fans to set their own price. But in 2013, it pulled its back catalog from Spotify, with lead singer Thom Yorke calling the service “the last desperate fart of a dying corpse”.

Its music is back on Spotify now.

But you can see why the band would support DotMusic’s application for .music, which proposes a number of novel rights protection mechanisms covering not just trademarks, but also copyright.

One interesting proposal is to ban any domain name from .music if a matching domain in another TLD has received over 10,000 copyright infringement notices from a big music industry body. This is to prevent TLD “hopping” affecting .music.

So, for example, if thepiratebay.com had received 10,000 notices, thepiratebay.music would be permanently blocked from registration.

The company is proposing a somewhat restricted namespace too, where only “community members” are allowed to register domains.

But prospective registrants merely need to self-identify as a member of one of the community’s dozens of subsets — which includes “fans” and “bloggers” — in order to register.

Parking will be prohibited, however, which would cut down on domain investor speculation.

Quite how .music will enhance the move for “fair trade” for artists is not entirely clear from O’Brien’s letter. After .music launches, there will still be hundreds of other TLDs that do not have DotMusic’s rules in place.

It’s also unlikely that the Economist Intelligence Unit, which is currently handling the CPE, will even see O’Brien’s letter.

ICANN told DotMusic (pdf) recently that the EIU “may not consider” any support letters received after October 13, which was two months after the official deadline for letters to be submitted.

DotMusic has letters of support — mostly the same letter with a different signature — from literally hundreds of musicians, trade groups, producers and publishers.

CEO Constantine Roussos told DI last week that it has more support letters than all the other “Community” gTLD applicants combined.

He said he’s confident that DotMusic’s CPE will be successful, citing positive precedent set by EIU panels in .osaka, .hotel and .radio CPE cases.

But the closest precedent we have so far is the Far Further application for .music, which comprehensively lost its CPE a year ago, scoring just three points out of the available 16, well short of the 14-point passing score.

There are differences between the applications, but Far Further’s CPE panel told it that there was no such thing as “the music community”, which sets a pretty high bar for DotMusic to leap.

If DotMusic wins its CPE, the remaining seven competing applications for the string get kicked out of the program. If it loses, it goes to an auction it has little chance of winning.