CPE probe: “whitewash” or “fig leaf”?

A few weeks ago, when I was reporting the conclusions of a probe into ICANN’s new gTLD program, I wrote a prediction on a piece of paper and placed it into a sealed envelope.*
I wrote: “They’re gonna call this a whitewash.”
And I was correct! Ta-dah! I’m here all week.
The lawyer for applicants for .music and .gay gTLDs has written to ICANN to complain that a purportedly independent review of the Community Evaluation Process was riddled with errors and oversights and should not be trusted.
In a letter on behalf of dotgay LLC, Arif Ali calls the report a “whitewash”. In a letter on behalf of DotMusic, he calls it a “fig leaf”.
Both companies think that the CPE probe was designed to give ICANN cover to proceed with auctions for five outstanding gTLD contention sets, rather than to get to the bottom of perceived inconsistencies in the process.
Both of Ali’s clients applied for their respective gTLDs as “community” applicants, trying to avoid auctions by using the Community Priority Evaluation process.
During their CPEs, both carried out by the Economist Intelligence Unit, neither applicant scored highly enough to win the exclusive right to .gay or .music, meaning the next stage was to auction the strings off to the highest bidder.
After repeated complaints from applicants and an Independent Review Process finding that ICANN lacked transparency and that staff may have had inappropriate influence over the EIU, ICANN hired FTI Consulting to look into the whole CPE process.
FTI’s report was finally delivered late last year, clearing ICANN on all counts of impropriety and finding that the EIU’s evaluations had been consistent across each of the applications it looked at.
The remaining gTLDs affected by this are .music, .gay, .hotel, .cpa, and .merck.
ICANN’s board of directors is due to meet to discuss next steps this weekend, but Ali says that it should “critically evaluate the [FTI] Report and not accept its wholesale conclusions”. He wrote, on behalf of DotMusic:

The report reveals that FTI’s investigation was cursory at best; its narrow mandate and evaluation methodology were designed to do little more than vindicate ICANN’s administration of the CPE process.
…
It is evident that FTI engaged in a seemingly advocacy-driven investigation to reach conclusions that would absolve ICANN of the demonstrated and demonstrable problems that afflicted the CPE process.

Among the applicants’ list of complaints: their claim that FTI did not interview affected applicants or take their submissions seriously, and the fact that ICANN was less than transparent about who was conducting the probe and what its remit was.
The same letter quotes ICANN chair Cherine Chalaby, then vice-chair, saying in a January 2017 webinar that he had observed inconsistencies in how the CPEs were carried out; inconsistencies FTI has since found did not occur.
That should be enough to provoke discussion when the board meets to discuss this and other issues in Los Angeles on Saturday.
* I didn’t actually do this of course, I just thought about it, but you get my point.

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

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

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

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

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

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.

.music applicant caught using bogus Wikipedia page

DotMusic Limited, the .music applicant founded by Constantine Roussos, is using a highly suspicious Wikipedia page in its attempt to win the .music contention set.
The applicant and many supporters have been citing the Wikipedia “music community” page in support of DotMusic’s ongoing Community Priority Evaluation, despite the fact that the page draws text, without citation, from DotMusic’s own application.
The Wikipedia page was created October 21, 2014, just two weeks after rival .music applicant Far Further spectacularly failed in its own Community Priority Evaluation bid.
In March this year, DotMusic cited (pdf) a November 26 version of the Wikipedia page in whole in a controversial application change request.
Three of its supporters (Jeunesses Musicales International, International Society of Music Education, and International Federation of Musicians) have cited the Wikipedia article in DotMusic-drafted letters sent to ICANN.
An early version of the sign-and-submit form letter DotMusic is encouraging supporters to send to ICANN included the Wikipedia reference (this one, for example) but it appears to have been removed from form comments sent after the end of July.
Its web site currently says that its definition of “music community” is “confirmed by Wikipedia”.
In fact, the Wikipedia page pulls lots of its language from DotMusic’s 2012 new gTLD application, as represented in the table below.
[table id=34 /]
The phrase “logical alliance” originates in the ICANN Applicant Guidebook, as part of the CPE rules.
But that still leaves two sentences that appear to have been only lightly edited after being taken wholesale from the DotMusic application.
The Wikipedia page does not refer to domain names or ICANN, nor does it cite DotMusic as a source, despite the fact (per a Google search) that phrases such as “socio-economic interactions between music creators” have only ever appeared in .music’s application.
That’s unusual, because the citations in the article, many of which are to weighty, barely comprehensible scholarly works, give the impression of a well-researched and well-sourced piece.
Only one Wikipedia editor, known by the handle Dr. Blofeld, has contributed anything of substance to the page. Three others have provided cosmetic edits.
While a prolific editor since 2006, the closest he had previously come to writing an article about music were his contributions to a page about a green Versace dress once worn by singer Jennifer Lopez, according to Blofeld’s user page.
He seems to be much more interested in nature, architecture and film (including James Bond films, naturally).
On wonders why he had the sudden urge to scratch-build a 375-word article about the “music community”, having evidently read a dozen academic works on the topic, that fails to cite DotMusic’s application as the source of some of the text.
In summary, the evidence points towards the article being created solely for the purpose of assisting DotMusic towards a CPE victory that would save it the seven-figure sum .music is likely to fetch if it goes to auction.
There are eight applicants for .music in total.

Dirty tricks claimed in .music fight

A .music hopeful has tried to add over 300 pages of documents to its new gTLD application, apparently in an effort to leapfrog competitors, and its rival community applicant is far from happy.
DotMusic Limited submitted the change request (pdf) in order to add some Public Interest Commitments to its .music bid.
Rival .Music LLC now claims that it is “outrageous and unfair for ICANN to allow this applicant to abuse the PIC process in this way” and has filed a Request for Reconsideration.
Of the eight .music bidders, these two companies are the only formal “community” applicants.
Under the rules of the new gTLD program, community applicants can avoid having to fight an auction if they win a strict Community Priority Evaluation.
To avoid confusion: DotMusic Limited is the applicant led by Constantine Roussos; .Music LLC (aka Far Further) is led by John Styll.
Far Further fought a CPE last year but lost in spectacular fashion, scoring just 3 out of the 16 available points, a long way shy of the 14 points required for a pass.
The Roussos applicant has now submitted eight new proposed Public Interest Commitments — things it promises to do to protect registrants and rights holders — as an addendum to its application.
That’s pretty standard stuff.
What’s unusual are the 308 pages of additional “clarifications” that seek to explain how the proposed PICs relate to its original application.
They’re not changes to the application, technically speaking, but they are a way to get hundreds of extra pages of content into the public record ahead of DotMusic’s own CPE.
According to Styll, this latest gambit is nothing more than an attempt to score more CPE points. He told ICANN:

the 308 additional pages of “clarifications” contain wording that clearly utilizes learnings from previous CPE results (including our own), in violation of ICANN policy

Complicating matters, it turns out that Far Further tried to make some substantive changes to its application back in May 2014, but had the request declined by ICANN “in order to be fair to other applicants”.
That was prior to ICANN’s publication of guidelines governing change request, Styll says.
Because of this alleged discrepancy between how the two competing change requests were handled, Far Further wants a second crack at the CPE for its own application.
Its RfR (pdf) asks ICANN to reverse its May 2014 decision, allow its change request, throw out the original results of its CPE and refer the CPE to a new Economist Intelligence Unit panel for a full reevaluation.
Failing that, it wants ICANN to throw out the 308 pages of “clarifications” submitted by DotMusic.
Both applicants have the written support of dozens of music industry groups.
There’s some crossover, but Far Further’s backers appear to me to be a little more “establishment” than DotMusic’s, including the likes of the Recording Industry Association of America.
The other, non-community applicants are Amazon, Google, Donuts, Radix, Famous Four Media and Entertainment Names.
With Google and Amazon in the mix, if it goes to auction, .music could easily be an eight-figure auction along the lines of .app, which sold to Google for $25 million.
In my view, winning a CPE is the only way DotMusic has a chance of getting its hands on .music, short of combining with another applicant.

Music industry gets its ass handed to it by gTLD panel

The music industry-backed application for the new gTLD .music today suffered a humiliating defeat at the hands of a Community Priority Evaluation panel.
The Far Further (.music LLC) application scored a pitiful 3 out of 16 possible points in the evaluation, missing the required 14-point passing threshold by a country and western mile.
CPE is a way for applicants representing genuine communities to avoid an auction. If one applicant in a contention set wins a CPE, all the others must withdraw their applications.
But in this case the CPE panel went so far as to accuse the applicant of attempting to get its hands on a nice generic string by creating a new community, rather than by representing an existing one:

The Panel determined that this application refers to a proposed community construed to obtain a sought-after generic word as a gTLD. Moreover the applicant appears to be attempting to use the gTLD to organize the various groups noted in the application documentation, as opposed to applying on behalf of an already organized and cohesive community.

The application was backed by dozens of music industry trade groups and (by inference) thousands of their member associations and millions of individual members, spread over 150 countries.
But that wasn’t enough to persuade the CPE panel that “music” is even a “community” within the meaning of the ICANN new gTLD program’s Applicant Guidebook:

While the Panel acknowledges that many of the members in the proposed community share an interest in music, the AGB specifies that a “commonality of interest” is not sufficient to demonstrate the requisite awareness and recognition of a community among its members.

The panel pointed to the existence of legions of amateur musicians — estimated at 200 million — that do not identify with the community as defined in Far Further’s new gTLD application, which is restricted to the four million or so members of the application’s backers.
The panel found therefore that “there is no entity mainly dedicated to the entire community as defined by the applicant, nor does the application include reference to such an organization”.
The very fact that the Far Further application included reference to 42 trade groups, covering different facets of the music industry, seems to have counted against it. One overarching body dedicated to “music” in its entirety may have been enough to win the applicant some points.
The fact that the panel decided the community did not exist had a knock-on effect in other parts of the evaluation.
Has the community been around for a long time? No, because the community doesn’t exist. Is it a big community? No again, because the community doesn’t exist. And so on.
The only places Far Further managed to pick up points were on its registration policies, where it had promised to restrict registration to certain community members, and on community endorsement.
There are eight applicants for .music in total. One other, regular DI commenter Constantine Roussos’ DotMusic Limited, is also a Community application that is eligible for CPE.
It’s always seemed highly improbable that any .music applicant could pass CPE, but it’s looking even less likely for DotMusic after today’s result for Far Further.
.music, it seems, is heading to auction, where it is likely to fetch big bucks.

Roussos loses last .music LRO

Constantine Roussos’ DotMusic Ltd has lost its seventh and final Legal Rights Objection against rival .music applicants.
In the decision in DotMusic Ltd v DotMusic Inc, published (pdf) this hour, WIPO panelist Mark Partridge ruled:

the Panel is compelled to conclude that the Objector lacks enforceable rights. The term “.music” (or “dotMusic”) would in the Panel’s opinion be recognized as a generic designation for a top-level domain name directed at or relating to music and music-related services. As a result, the Panel is of the opinion that the Objector cannot own trademark rights in the terms “.music” (or “dotMusic”) per se as a matter of law, even if it has developed awareness of that term as being associated with it as the name of an entity.

That’s roughly in keeping with the first six DotMusic decisions and a not remotely surprising result.
The objections phase for .music is not over yet, however. There are still seven Community Objections pending, most of them filed by American Association of Independent Music, which is affiliated with Roussos’ bid.
There’s also the possibility that DotMusic and/or .music LLC (which also has industry backing) could apply for a Community Priority Evaluation, which would kill off all rivals at a stroke.
I’ve yet to hear a convincing argument why either application could win a CPE, so my guess is that .music is, eventually, heading to auction.