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ICANN sets date for GAC showdown

Kevin Murphy, December 23, 2010, Domain Registries

ICANN and its Governmental Advisory Committee will meet for two days of talks on the new top-level domains program in Geneva from February 28, according to GNSO chair Stephane Van Gelder.

As well as the Applicant Guidebook (AGB) for new TLDs, the meeting is also expected to address the GAC’s outstanding concerns with the .xxx TLD application.

While I’d heard Geneva touted as a possible location, this is the first time I’ve heard a firm date put to it. As well as Van Gelder, other sources have heard the same date.

Talks ending March 1 would give ICANN less than two weeks before its public meeting in San Francisco kicks off to get the AGB into GAC-compatible shape before the board votes to approve it.

Is that a realistic timeframe? I guess that will depend on how the GAC meeting goes, the depths of the concessions ICANN decides to make, how receptive the GAC is to compromise, and whether it is felt that more public comment is needed.

Also, as I speculated last week, ICANN may have to officially invoke the part of its bylaws that deals with GAC conflicts, which it does not yet appear to have done, if it wants to approve the Guidebook at the end of the San Francisco meeting in March.

If the program is approved in March, that would likely lead to applications opening in August.

There’s likely to be one ICANN board meeting between now and Geneva – its first meeting of the year is usually held in late January or early February – so there’s still time for ICANN to make changes to AGB based on public comment, and to get its process ducks in a row.

There’s also plenty of time for the GAC to provide its official wish-list or “scorecard” of AGB concerns, which I believe it has not yet done.

Van Gelder also wonders on his blog whether the Geneva meeting will take place in the open or behind closed doors.

ICANN’s director of media affairs, Brad White, put this question to ICANN chair Peter Dengate Thrush during a post-Cartagena interview. This was his answer:

We haven’t actually resolved the rules of engagement with the GAC on this particular meeting but the standard position for all organizations within ICANN is that they are open… On the other hand if at any point think we the negotiation could be assisted by a period of discussing things in private I guess we could consider that.

That looks like a “maybe” to me.

ICANN to tackle Trojan TLDs

Kevin Murphy, December 22, 2010, Domain Registries

When failing community-based top-level domain registries attempt to change their business models, ICANN may in future have a new way of dealing with them.

That seems to be a possible result of Employ Media’s controversial .jobs liberalization plans and the subsequent Reconsideration Request, which I blogged about last week.

The .jobs reconsideration revealed that not only are Reconsideration Requests a rubbish way to appeal ICANN’s decisions, but also that the Registry Services Evaluation Process is often a rubbish way to handle major contract changes.

The RSEP was introduced back in 2005 in belated response to a couple of controversial “services” that VeriSign, testing boundaries, had planned to unilaterally introduce in the .com registry, notably Site Finder and the Waiting List Service.

But since then the process has been used as a general-purpose tool for requesting changes to registry contracts, even when it’s debatable whether the changes fit the definition of “registry services”.

For example, when .jobs launched five years ago, it was put into Employ Media’s contract that the TLD was designed for companies to register their brands and list their jobs, and that’s all.

But that model didn’t work. It’s one of the least successful TLDs out there.

So the registry decided it could make more money with general purpose jobs boards, using generic .jobs domains. But it did not necessarily want to let existing independent jobs sites take part.

For want of a better term, I’ll call this an example of a “Trojan” TLD – a registry that gets its attractive TLD string approved by ICANN after making a certain set of promises, then later decides to move the goal posts to broaden its market, potentially disenfranchising others.

I’ve no reason to believe it was a premeditated strategy in Employ Media’s case, but precedent has now been set for future TLD applicants to use “community” as a foot in the door for broader aspirations.

To take a stupid, extreme, unrealistic example, imagine that ICM Registry’s .xxx flops badly. Should the company be allowed to start selling all the good .xxx domains to churches and other anti-porn campaigners? That would be a pretty big departure from its promises.

There were similar concerns, although not nearly as loudly expressed, with regards to Telnic’s recent contract changes, which will allow it to start registering phone number domain names in .tel, despite years of promises that it would not.

Go Daddy’s policy chief Tim Ruiz objected to the proposal on the grounds that it would be “unfair to other [.tel] applicants and potential applicants to allow an sTLD to change its purpose after the fact.”

The ICANN Board Governance Committee, which handles Reconsideration Requests, acknowledged these problems in its decision on .jobs in Cartagena (pdf), concluding that it:

thinks that the Board should address the need for a process to evaluate amendments that may have the effect of changing, or seeking to change, an sTLD Charter or Stated Purpose of a sponsored, restricted or community-based TLD.

The BGC seems to be saying that the RSEP is not up to the task of dealing with community-based TLDs that later decide their business plans are not the money-spinners they had hoped and want to loosen up their agreed community restrictions.

The committee went on to say that:

Because such a process may impact gTLDs greatly and is a policy issue, the GNSO is the natural starting point for evaluating such a process. We therefore further recommend that the Board direct the CEO to create a briefing paper for the GNSO to consider on this matter, and for the GNSO to determine whether a policy development process should be commenced.

So the GNSO will soon have to decide whether new policies are needed to deal with broad contract changes at failing community TLDs.

Any new policies would, I believe, be binding on community TLDs approved under the new gTLD program as well as older sTLDs, so it will be an interesting policy track to follow.

OpenRegistry latest player in new TLD market

Kevin Murphy, December 21, 2010, Domain Registries

OpenRegistry has become the domain name industry’s newest top-level domain registry operator.

The new company, which went by the name Sensirius while in stealth mode, announced itself officially at the ICANN meeting in Cartagena two weeks ago.

Jean-Christophe Vignes is giving up his operational role at EuroDNS to be CEO of the new company, which hopes to bring more modular, custom-tailored options to organizations that want to launch new TLDs.

For “open”, read “flexible” – OpenRegistry plans to differentiate itself by offering clients “a la carte” options, rather than the one-size-fits-all services it believes some competitors offer.

“We’ve noticed that no two clients are the same,” Vignes said. “Some of them are already pretty well taken care of when it comes to drafting applications and so on, and just need the registry solution, but others are happy to have the full suite of our services.”

The idea is that a city TLD or niche community TLD will not necessarily have the same needs as a full-blown mass-market gTLD, Vignes said.

OpenRegistry plans to make three packages available at first, according to its web site – all-inclusive, managed registry, and software-only. Prices appear to start at around 100,000 euros.

The software itself is based on the registry expertise used in the design of Belgium’s .be and EurID’s .eu, although it appears to be a fresh creation.

Vignes said that it will be able to natively handle start-up functions such as premium domain auctions and interfacing with the IP Clearinghouse.

The company does not intend to apply for its own TLDs, Vignes said, allowing it to focus on its clients.

But it does plan on being somewhat selective on which TLDs with which it works, with “feasibility studies” one of the services on offer.

Like the incumbent registry triumvirate of VeriSign, Afilias and Neustar, OpenRegistry hopes that the ICANN-accredited registrar community will be a good source of clients.

ICANN recently said it plans to lift restrictions on registrars applying for and running registries.

Possible new TLDs timeline revealed

Kevin Murphy, December 16, 2010, Domain Registries

ICANN’s decision to delay the approval of its new top-level domains Applicant Guidebook last week in Cartagena left one big question hanging:

When will the program open for applications?

ICANN had pencilled in May 30 for the launch, but the new delay appeared to make that impossible. In the absence of an announcement from ICANN, nobody really knows what the current timetable is.

A few possible answers have now emerged with the publication this week of ICANN staff briefing documents (pdf) used by the board to make their original decision to target May 2011.

An October 28 document entitled “New gTLD Launch Scenarios”, penned by ICANN’s Kurt Pritz and Carole Cornell, explores the board’s options for approving a launch timeline.

It notes that applications cannot be solicited until ICANN has finished its mandatory four-month outreach/marketing campaign, which in turn can’t kick off until the AGB has been approved.

I’ll let the rest speak for itself:

If the Board were to approve the Guidebook after the January/February meeting, the announcement and communications campaign launch would be made shortly thereafter. The first applications could be received as early as (but not earlier than) 1 July 2011.

If the Board elects that a full comment analysis and sixth version of the Guidebook be written, with approval at the Silicon Valley meeting, the approval would be followed by an April announcement and communications campaign launch. First applications could be received as early as (but no earlier than) August 2011.

And here’s a lovely graphic illustrating the options (click to enlarge):

New gTLD Launch Scenarios

Given that we now know that the ICANN board intends to meet with the Governmental Advisory Committee to address its outstanding issues in February, the final scenario – with a San Francisco approval and August launch – now seems more likely.

Most of the rest of the briefing document is heavily redacted.

ICANN director slammed vertical integration

Kevin Murphy, December 15, 2010, Domain Registries

ICANN really shook up the domain name industry last month when it said it was dropping rules that prevent registrars and registries from owning each other.

But two of its directors voted against the decision and one, George Sadowsky, entered a lengthy dissenting opinion in which he said the benefits of so-called “vertical integration” are “largely illusory”.

Vertical integration would allow existing registrars to apply to run new top-level domains. It would enable companies to more easily apply for “.brand” or small niche TLDs.

This has been banned in previous registry contracts, due in part to the potential for abuse of registry data and anti-competitive behaviour by registrars.

Sadowsky delivered a four-point objection to the VI resolution, which was passed in early November, according to minutes published this week.

He said that introducing VI at the same time as the new TLD program would create unpredictable and irreversible consequences for the industry, and questioned ICANN’s ability to enforce compliance with data-sharing rules.

in spite of the measures to be taken to ensure “good conduct,” the resolution has the potential to commingle all of the data, public and private, regarding a registry in one place, providing the possibility of easy and invisible sharing of data within a merged or co-owned entity regardless of the scope of any agreement with ICANN.

Such sharing is likely to be undetectable given the close affiliations among the entities. Data now forbidden to be shared between registries and registrars will be shared. Both auditing and enforcement by ICANN are unlikely to be effective, all the more so as we move from 20+ to hundreds of new gTLDs.

Data sharing would give registrars greater insight into valuable domains, potentially facilitating registrant-unfriendly activities such as warehousing.

Those companies which opposed VI, including Afilias and Go Daddy, have previously said that the potential for registrar abuse, harming registrars, was too great.

Sadowsky said:

Assuming that each gTLD registry must continue to treat all registrars equally, the real benefits of vertical integration are largely illusory, but those that can be easily obtained by the officially forbidden sharing of data are real

The minutes also show that Mike Silber voted against the resolution, saying he “believes there will be very unpleasant, unintended consequences”.

Harald Alvestrand, Ram Mohan, Thomas Narten, Jonne Soininen and Bruce Tonkin had conflicts of interest and were not in the room for the debate. The two voting directors, Tonkin and Alvestrand, officially abstained from the vote.

The minutes also contain this mysterious entry:

Confidential Issue
Pursuant to Article V, Section 5.4 of the ICANN Bylaws, the Board of Directors, by unanimous vote, determimed that, to protect the interests of ICANN, the matter under discussion should not be included in the minutes until such time as the Board designated the item should be published.

Anybody with any ideas what this might be, please feel free to theorize in the comments.

What next for new TLDs? Part 4 – GAC Concerns

Kevin Murphy, December 15, 2010, Domain Policy

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this fourth post, I will look at areas of the AGB that the Governmental Advisory Committee is still concerned about.

GAC Concerns

The GAC’s laundry list of objections and concerns has grown with every official Communique it has released during an ICANN public meeting over the last few years.

While it has not yet published its official “scorecard” of demands for the home-stretch negotiations, it has released a list of 11 points (pdf) it wants to discuss with the board.

These 11 points can be grouped into a smaller number of buckets: objections and disputes procedures, trademark protection, registry-registrar separation, and the treatment of geographical names.

I wrote about the trademark issue in part one of this post.

The GAC appears to have adopted many of the arguments of the IP lobby – it thinks the AGB does not currently do enough to ensure the costs to business of new TLDs will be minimized – so we might expect that to be a major topic of discussion at the GAC-Board retreat in February.

I’ll be interested to hear what it has to say about registry-registrar separation.

The GAC has been pushing for some looser cross-ownership restrictions, in order to foster competition, since 2007, and most recently in September.

It has previously been in favor of restrictions on “insider” companies with market power, but for a more relaxed environment for new entrants (such as “community” TLDs that may largely operate under agreements with their local governments).

This position looks quite compatible with ICANN’s new vertical integration policy, to me, so I’m not sure where the GAC’s concerns currently lie.

The issue of disputes and objections may be the trickiest one.

The GAC basically wants a way for its members to block “controversial” TLD applications on public policy grounds, without having to pay fees.

The “Rec6” policy, previously known as “morality and public order objections” is one of the issues the ICANN board has specifically acknowledged is Not Closed.

This is from its Cartagena resolution:

Discussions will continue on (1) the roles of the Board, GAC, and ALAC in the objection process, (2) the incitement to discrimination criterion, and (3) fees for GAC and ALAC-instigated objections. ICANN will take into account public comment including the advice of the GAC, and looks forward to receiving further input from the working group in an attempt to close this issue.

GAC members on the Rec6 working group repeatedly highlighted objection fees as a deal-breaker – governments don’t want to have to pay to object to TLD applications.

This appears to been cast as some kind of sovereignty-based matter of principle, although I suppose it could just as easily be an “in this economic climate” budgeting concern.

ICANN’s position is that the GAC as a whole can object for free, but that individual governments have to pay. Fees for some objection procedures will run into tens of thousands of dollars.

The GAC also has beef with the AGB’s treatment of geographic strings.

This is an area where ICANN says the AGB already “substantially reflects the views of the ICANN community” but intends to take GAC comments into account.

ICANN has already made substantial concessions on the geographic names issue, but there may still be a few loopholes through which territory names could slip through the net and be approved without the endorsement of their local governments.

Finally, the GAC wants to include amendments to the Registrar Accreditation Agreement, previously recommended by law enforcement agencies, in the AGB discussion.

The appears to have come completely out of the blue, without any direct relevance to the new TLD program.

It’s a long list covering a lot of issues, and it could get longer when the GAC publishes its official “scorecard”. We’ll have to wait and see.

What next for new TLDs? Part 3 – The .xxx Factor

Kevin Murphy, December 14, 2010, Domain Registries

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this third post, I will look at the state of play with the .xxx TLD application, and what that means for the new TLD process.

The .xxx Factor

At some time in February, the ICANN board and its Governmental Advisory Committee plan to meet (possibly in Geneva) to discuss both the AGB and the .xxx TLD proposal.

While these are two separate issues, how .xxx is being handled may have an impact on the timetable for the AGB’s approval.

Let’s first look at what’s happening with .xxx.

As you will have almost certainly already read, the ICANN board resolved on Friday that it “intends to approve” .xxx, despite GAC advice that may be to the contrary.

The ICANN-GAC power structure is governed by an 11-point charter in ICANN’s bylaws. The last two points, J and K, deal with what happens when the two parties disagree.

Under what, for the sake of brevity, I’m going to call “GAC-J” (instead of “ICANN Bylaws section Article XI, Section 2, Paragraph 1(j)”), ICANN has to call a meeting with the GAC when it plans to disregard GAC advice.

Specifically, if the ICANN board “determines to take an action” that is not consistent with GAC advice, it has to “inform” the GAC, stating why it decided to not follow the advice, then “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”.

GAC-J has, to the best of my knowledge, never been invoked before. There isn’t even a procedure in place for handling this kind of official consultation.

But on Friday, the board stated that it intends to not follow the GAC’s advice on the .xxx application and “hereby invokes the consultation as provided for in ICANN Bylaws section Article XI, Section 2, Paragraph 1(j).”

Now that GAC-J has been invoked, the GAC and board will meet to find their “mutually acceptable solution”.

Should such a solution prove elusive, the ICANN board has to make a final decision, stating why it has disregarded the GAC’s advice. That’s handled by what I’ll call GAC-K.

What does all this have to do with new TLDs and the timetable for the publication and approval of the final Applicant Guidebook?

As ICM Registry president Stuart Lawley pointed out in a comment on CircleID, the procedures being created to resolve the .xxx dispute could very well soon be applied to the AGB.

As Lawley points out, ICANN has not yet put the GAC on notice that it plans to disagree with any of the 11 concerns outlined in the Cartagena GAC Communique.

While the Communique “assumes” ICANN has invoked GAC-J with regards new TLDs, the board has not explicitly done so.

This is uncharted territory, but I think it’s possible that this oversight (if it is an oversight) has the potential to add latency to the new AGB approval timetable.

ICANN might be well-advised to pass a resolution officially invoking GAC-J before the February bilateral meeting, in order to turn it into a bylaws-compatible consultation.

As long as it invokes the bylaws before March, the San Francisco meeting will be able to host a GAC-Board consultation under the terms of GAC-J, enabling the AGB to be approved that week.

If ICANN does not take either of these options, the GAC will be able (if it wants to be a pain) to further delay the process by demanding another inter-sessional consultation, like it just did in Cartagena.

I’ll discuss the GAC’s actual concerns in the fourth part of this post.

What next for new TLDs? Part 2 – The GAC Bottleneck

Kevin Murphy, December 14, 2010, Domain Registries

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this second post I will look at the process problems presented by ICANN’s Governmental Advisory Committee.

The GAC Bottleneck

The main meta-story of Cartagena was ICANN’s turbulent relationship with its Governmental Advisory Committee, which is either maturing or (less likely) heading to towards a shattering collision.

The two big proposals that were widely expected to get the ICANN board’s nod last Friday – the new TLD final Applicant Guidebook and the .xxx TLD – were both delayed in whole or part by the GAC.

It’s become abundantly clear that the overall ICANN decision-making process has become subject to what I’m going to call the GAC Bottleneck.

If ICANN is serious about getting things done to its desired timetable in future, it will need to start paying attention to the GAC much earlier and much more seriously.

There’s been a failure to communicate over the last several years, the inherently problematic results of which were clearly embodied in sessions last Monday in which the GAC and the ICANN board discussed the definition of “advice”.

If there’s an “advisory” committee, and neither the committee nor the body its “advises” knows what “advice” means, that’s a pretty big stumbling block to constructive dialogue, which helps nobody.

The GAC believes that this historic uncertainty is the main reason why the new TLD program has hit an impasse at this late stage in the process.

The official Cartagena GAC Communique said:

the GAC considers that these [unresolved GAC concerns with the AGB] result primarily from the fact that the Board adopted the GNSO recommendations on new gTLDs without taking due account of GAC advice at that time, thereby creating a flawed process.

That’s pretty strong stuff – the GAC is basically saying that all the thousands of discussions the community has endured since 2007 have been carried out under faulty assumptions, because ICANN failed to pay heed to GAC advice when it was writing the rules of engagement for developing new TLD policy.

It’s also the reason we’re looking at the need for a GAC-Board retreat next February, at which ICANN will attempt to address the GAC’s outstanding concerns, before the AGB can be approved.

More on that in part three of this post.

What next for new TLDs? Part 1 – Unresolved Issues

Kevin Murphy, December 14, 2010, Domain Services

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this first post I will look at the issues that ICANN has explicitly tagged as unresolved, with special reference to trademarks.

Unresolved Issues

ICANN chairman Peter Dengate Thrush, explaining the board’s resolution on new TLDs on Friday, said:

The intention has been, as much as possible, to indicate those areas where the board feels that the work that has been done is sufficient to move to closure… What we’ve also tried to do is indicate which areas are still clearly open for consideration.

The resolution names only two issues that are explicitly still open for further policy development: geographic strings and “morality and public order” objections. I’ll discuss these in a future post.

Issues considered already reflecting “the negotiated position of the ICANN community” include “trademark protection, mitigating malicious conduct, and root-zone scaling”.

But does this mean that the trademark issue, easily the most contentious of these three “overarching issues” is really sufficiently “closed” that we’ll see no more changes to those parts of the AGB?

I don’t think so. While the Cartagena resolutions say trademark protection has been addressed, it also says “ICANN will take into account public comment including the advice of the GAC.”

It may be too late for the IP community to affect changes directly, beyond the comments they’ve already filed, but the GAC, which has already aligned itself with the trademark lobby, may be able to.

Beyond the text of the resolution, ICANN chair Peter Dengate Thrush said in an interview with ICANN head of media relations Brad White:

We’ve spent a lot of time with the trademark community and come up with three new independent mechanisms for protecting trademark rights on the internet. So the sense of board and the sense of the community is that that’s probably a sufficient effort in developing mechanisms. What we now might look at is how we might enhance, tweak and improve those processes, but we’re not going to convene another process to look at yet another kind of solution for intellectual property rights.

In other words, according to Dengate Thrush, ICANN isn’t planning to create any new IP rights protection mechanisms in the AGB, but these mechanisms, such as Uniform Rapid Suspension and the Trademark Clearinghouse, could be still be modified based on comments received from the trademark lobby over the last week or so.

Most of the outcry from the IP lobby recently has called for the specifics of these two mechanisms to be tilted more in favor of trademark interests; there’s been little call for any new mechanisms.

Trademark rights protections also account for two of the 11 issues that the Governmental Advisory Committee has tagged “outstanding” which “require additional discussion”, by my reading.

More on the GAC bottleneck in part two of this post.

ICANN new TLD launch delayed (again)

Kevin Murphy, December 10, 2010, Domain Registries

ICANN’s new top-level domains program has been delayed, likely for a few months at least, after governments submitted a laundry list of issues they believe are still unresolved.

The Governmental Advisory Committee is mainly bothered that the Applicant Guidebook fails to adequately protect trademark rights and that the cost of the program could outweigh the benefits.

The ICANN board resolved at its meeting here in Cartagena earlier today to meet with the GAC for an unprecedented consultation next February.

(The meeting will also discuss the .xxx application, which I’ve reported on for The Register).

The actual board resolution is hopelessly lengthy and confusing at first reading. Take this doublethink:

ICANN considers that the solutions developed to address the overarching issues of trademark protection, mitigating malicious conduct, and root-zone scaling substantially reflect the negotiated position of the ICANN community, but ICANN will take into account public comment including the advice of the GAC.

Some delegates here tell me they think this means the book has been closed on the portions of the guidebook dealing with IP protection mechanisms, for example.

(J Scott Evans, head of the IP constituency, stormed out of the room in a huff when this part of the resolution was read aloud.)

But the text of the resolution pretty clearly states that IP protections and the other overarching issues are still open for negotiation with the GAC and could be amended based on comments filed this week.

The resolution is open to interpretation with regards these three “overarching issues”.

It does, however, refer to other issues that are explicitly unresolved in ICANN’s view, namely the treatment of geographic names and the handling of “morality and public order” objections.

Both are singled out as needing more work before they can be finalized.

What does all this mean for the launch timetable? I think it means there isn’t one. Again.

[The ICANN board] Directs staff to synthesize the results of these consultations and comments, and to prepare revisions to the guidebook to enable the Board to make a decision on the launch of the new gTLD program as soon as possible.

“As soon as possible” is either meaningless or, taken literally, means the board’s next meeting. That’s likely to be late January, if previous years are any guide.