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dotgay lawyer insists it is gay enough for .gay gTLD

Kevin Murphy, February 6, 2018, Domain Policy

What do Airbnb, the Stonewall riots and the 2016 Orlando nightclub shooting have in common?

They’re all cited in a lengthy, somewhat compelling memo from a Yale law professor in support of dotgay LLC’s argument that it should be allowed to proceed with its .gay gTLD application unopposed by rival applicants.

The document (pdf), written by William Eskridge, who has decades of publications on gay rights under his belt, argues that dotgay’s Community Priority Evaluation and the subsequent review of that evaluation were both flawed.

At the crux of the dispute is whether the word “gay” can also be used to describe people who are transgender, intersex, and “allied” straight — dotgay says it can, but the Economist Intelligence Unit, which carried out the CPE, disagreed.

dotgay scored 10 out of 16 points on its CPE, four shy of a passing grade. An acceptance of dotgay’s definition of the “gay” community could have added 1 to 4 extra points to its score.

The company also lost a point due to an objection from a gay community center, despite otherwise broad support from gay-oriented organizations.

Eskridge spends quite a lot of time on the history of the word “gay”, from Gertrude Stein and Cary Grant using it as a wink-wink code-word in less-tolerant times, via the 1969 Stonewall riots, to today’s use in the media.

The argument gets a bit grisly when it is pointed out that some of the 49 people killed in the 2016 mass shooting at the Pulse nightclub in Orlando, Florida — routinely described as a “gay” club in the media — were either transgender or straight.

My research associates and I read dozens of press and Internet accounts of this then-unprecedented mass assault by a single person on American soil. Almost all of them described Pulse as a “gay bar,” the situs for the gay community. But, like the Stonewall thirty-seven years earlier, Pulse was a “gay bar” and a “gay community” that included lesbians, bisexual men and women, transgender persons, queer persons, and allies, as well as many gay men.

Eskridge argues that EIU erred by applying an overly strict definition of the applied-for string with dotgay, but not with successful community applicants for other strings.

For example, he argues, a manufacturer of facial scrubs would qualify for a “.spa” domain, and Airbnb and the Orient Express train line would qualify for “.hotel” domains under that applicant’s definition of its community, even though it could be argued that they do not fit into the narrow categories of “spas” and “hotels”.

Similarly, a transgender person may not consider themselves “gay” and a straight person certainly would not, but both might feel a part of the broader “gay community” when they get shot at a gay nightclub.

It’s an unpleasant way to frame the argument, but in my view it’s compelling nevertheless.

Eskridge also thinks that dotgay should have picked up an extra point or two in the part of the CPE dealing with community support.

It dropped one point there because the Q Center, a community center for LGBTQ people in Portland, Oregon, sent a letter objecting to the dotgay application (an objection apparently later revoked, then reinstated).

Eskridge spend some time questioning the Q Center’s bona fides as a big-enough organization to warrant costing dotgay a point, noting that it was the only member of a 200-strong umbrella organization, CenterLink, to object. CenterLink itself backed the bid.

He then goes on to cite articles seemingly showing that Q Center was in the midst of some kind of liberal paranoia meltdown — accused of racial insensibility and “transphobia” — and allegations of mismanagement at about the same time as it was objecting to dotgay’s application.

He also insinuates that Q’s base in Portland is suspicious because it’s also where rival applicant Top Level Design is based.

In summary, Eskridge reckons the EIU CPE and FTI Consulting’s subsequent investigation were both flimsy in their research, unfairly applying criteria to .gay that they did not apply to other strings, and that dotgay should have picked up enough points to pass the CPE.

It’s important to remember that this is not a case of ICANN getting decide whether the gTLD .gay gets to exist — it’s going to exist one way or the other — but rather whether the winning registry is selected by auction or not.

If dotgay wins either by getting another CPE or winning the auction then .gay will be restricted to only vetted members of the “gay” community. This could mean less homophobic abuse in .gay domains but probably also less opportunity for self expression.

If it goes to Top Level Design, MMX or Donuts, it will be open to all comers. That could increase cyber-bulling with .gay domains, but would remove barriers to entry to those who would otherwise be excluded from registering a domain.

ICANN has had .gay on hold for years while the dispute over the CPE has worked itself out, and it now has a piece of paper from FTI declaring the result hunky-dory. I doubt there’s any appetite to reopen old wounds.

My feeling is that we’re looking at an auction here.

Registry bosses to talk ICANN “tax cuts” at private meeting

Kevin Murphy, September 5, 2017, Domain Registries

The CEOs of 20 or more gTLD registries are due to meet privately this month to discuss, among other things, the possibility of a reduction in their ICANN fees.

The Registry CEO Summit is being held in Seattle at the end of September, I’m told.

Jay Westerdal of Top Level Spectrum (.feedback etc) and Ray King of Top Level Design (.design etc) are organizing the event.

“It’s a small, informal gathering, where the agenda will be set by the participants, most likely around best practices for running a new registry,” Westerdal said.

“It’s not an official group like the RySG, and we don’t expect to be putting out any statements or ‘work product’,” he said.

He said he expects 20 to 25 registry CEOs to attend.

.CLUB Domains CEO Colin Campbell, who said he will attend, said he intends to bring proposals to the meeting around persuading ICANN to support the industry with marketing support and fee reductions.

Campbell wants ICANN to commit to spend $4 million on marketing new gTLDs at trade shows and conferences.

He also wants ICANN to reduce its $0.25 per-domain registry fee, which he referred to as a “tax”, to $0.18 for three years (which would match the $0.18 registrars pay ICANN per transaction).

He said the money would ideally flow through into the pockets of registrants, rather than the industry.

“I’m not suggesting that it be permanent, I’m suggesting that in order to support the fledgling new gTLD industry that they offer a small reduction and hope registries will pass that on to registrars and hopefully registrars will pass that on to consumers,” Campbell said.

The reduction would also help raise awareness of new gTLDs, he said.

The $0.25 fee only kicks in when a registry tops 50,000 billable transactions per year, so the reduction would at first only affect the roughly 50 to 60 new gTLDs that are already over that milestone.

The $0.07 per-domain reduction is so small that even a registry as large as .club, with about a million domains, would only see its fees reduced by about $70,000 per year.

Over all the affected TLDs, it would come out to a cost to ICANN of about $1.2 million per year if current volumes hold.

“It’s a very small amount but I still believe the benefit goes to end users,” Campbell said.

For registrants, it’s difficult to imagine $0.07 making a huge difference, unless they’re a high-volume buyer (which are not always the buyers you want). Generally, the cheaper domains get the more they attract abusive registrants.

Whether the ideas will get any traction among other registry CEOs remains to be seen, but it’s not the first idea for reduced ICANN fees to come out of the registry community recently.

In March, the RySG formally asked ICANN to tap into its war chest of excess new gTLD application fees to waive 75% of its fixed $25,000 annual per-TLD fee, a move that would affect all new gTLDs rather than just the larger ones.

The rebate would have cost ICANN $17 million.

But ICANN knocked that idea back last week, saying it still does not know how much of this $96 million cash pile it will have to spend on unexpected events stemming from the program.

Five more new gTLDs, one in English, get the nod from China

Kevin Murphy, February 14, 2017, Domain Registries

Top Level Design’s .ink has become the sixth new gTLD in the Latin alphabet to be approved for sale in China.

It was one of four new gTLDs given regulatory approval to begin operating properly in the country late last week. The others were all in Chinese script.

From Finnish-founded TLD Registry, .中文网 (“Chinese web site”) and .在线 (“Chinese online”) gained approval.

From local outfit Guangzhou Yuwei Information Technology Co, .集团 (“group”) and .我爱你 (“I love you”) were given the nod.

It’s the third batch of new gTLDs to get Chinese government approval since .vip, .club and .xyz in December. In January, .site and .shop joined their ranks.

Under China’s Draconian domain name regulations, only domains registered via local registries and registrars may be used.

Registries from outside the country have had to set up a local corporate presence and agree to China’s censorship policies in order to be compliant.

Are new gTLD registries ripping off brands with unfair sunrise fees?

Forget .sucks — several less controversial new gTLD registries have come under fire from the likes of Google, Facebook and Adobe for charging sunrise fees as high as $17,000 for domains matching famous trademarks.

According to figures supplied to DI by ICANN’s Business Constituency, the domain instagram.love carries a $17,610 “Premium Name Fee” during the current sunrise period.

Instagram is of course the photo sharing service belonging to Facebook, and to the best of my knowledge not a dictionary word.

The domain facebook.love has a $8,930 fee, these figures show, while google.love costs $6,610, both in addition to sunrise fees of $350 and annual fees of $60.

The regular sunrise fee for .love comes in at $265 at some registrars.

The new gTLDs .design, .video, .wang, .wein, .rich and .top also seem to carry very high fees for brands such as Facebook, according to the BC’s numbers.

Google recently filed a public comment with ICANN which warned:

some registry operators are taking advantage of rights owners during Sunrise by charging exorbitant and extortionate Sunrise registration fees. Although such pricing policies are not strictly within the ICANN compliance mandate, they contravene the spirit of the RPMs [rights protection mechanisms], damage ICANN’s reputation, harm consumers in contravention of ICANN’s mandate to promote the public interest, and create disincentives for rights owners to take advantage of the Sunrise period

Similar comments were sent by the Intellectual Property Constituency, BC, and others.

The issue of registries charging super-high “premium” fees for trademarked names has been on the radar of the BC and the IPC since at least 2013.

It seems that in at least some cases, trademark owners are being hit with the higher fees because their marks are dictionary words that the registry has identified as premium due to their regular meaning.

For example, adobe.design is on the list of names provided by the BC, carrying a $1,175 registration fee.

But Andrew Merriam, director of business development at .design registry Top Level Design, denied that the software company is being targeted. Instead, he said “adobe” refers to the material used in architecture — its dictionary meaning.

He said: “Stucco.design, concrete.design, wood.design, granite.design (and many other materials and building styles) are all on the premium list, at varying prices. In fact, adobe.design is priced on the lower end of all these materials.”

Merriam said the registry’s premium fee for adobe.design is actually $250 and speculated that $1,175 could be the price quoted by Adobe’s brand protection registrar post-markup. It was $349 at Go Daddy, he said.

In other cases, trademarks may have found their way on to premium lists due to a lack of manual vetting by the registry, rather than nefarious targeting.

In the case of instagram.love, Evatt Merchant of .love registry Merchant Law Group told DI that Facebook can buy the name for the normal sunrise fee if it wants.

He told DI that trademark owners should contact the registry if they believe their marks have been wrongly given premium prices. He said:

While it is possible that some brand terms that are frequently googled have ended up on the premium list, valued based on their Google search frequency, there is a simple solution. During the sunrise period, brands seeking non-dictionary trademarked domain names can contact the registry so that a review of individual sunrise pricing can occur. As has already occurred, such requests will often result in the .LOVE TLD voluntarily offering to reduce their sunrise application cost to the base sunrise price and that would certainly be the case for Instagram.

ICANN’s does not regulate pricing in new gTLDs, but nevertheless the IPC and BC and their members have asked ICANN to include premium pricing of trademarked names in its upcoming review of rights protection mechanisms.

ICANNWiki boss applies for 10 gTLDs

A new company run by ICANNWiki founder Raymond King and business partner Peter Brual has applied to ICANN for 10 new generic top level domains.

Top Level Design has applied for: .blog, .llc, .group, .wiki, .gay, .art, .style, .design, .ink, and .photography.

The company is entering contention sets on most of those, but I believe it’s the first .wiki bid announced to date.

It’s also the only portfolio player so far to announce that it’s using CentralNIC, best known for pseudo-gTLDs such as uk.com, as its back-end registry provider.

The company said the venture “will not interfere with the presentation or neutrality of ICANNWiki.com”.