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EFF becomes second to appeal new .org contract

Kevin Murphy, August 7, 2019, Domain Registries

The Electronic Frontier Foundation has appealed ICANN’s decision to add stronger trademark protection rules to .org.

The civil liberties organization has filed a Request for Reconsideration with ICANN, saying that the new .org contract should not oblige Public Interest Registry to implement the Uniform Rapid Suspension policy.

URS is a swifter, cheaper version of the anti-cybersquatting UDRP policy. It can lead to clear-cut cases of trademark-infringing domains being relatively quickly suspended, but not transferred.

But the EFF is worried that it could be abused to curtail free speech.

It said URS is “particularly dangerous for the many .org registrants who are engaged in an array of noncommercial work, including criticism of governments and corporations”.

URS was created via ICANN’s bottom-up, community-led policy-making process to apply to new gTLDs applied for in 2012, not legacy gTLDs such as .org, EFF argues,

Adding more rights protection to a legacy gTLD “should be initiated, if at all, through the multistakeholder policy development process, not in bilateral negotiations between a registry operator and ICANN staff”, the RfR states.

The EFF is also concerned that the new contract allows PIR to unilaterally create its own additional rights protection mechanisms.

I don’t think this is a new power, however. Remember when PIR proposed a “Copyright UDRP” a couple of years ago, evidently as a way to turf out The Pirate Bay? That plan was swiftly killed off after protests from, among others, the EFF.

The EFF’s reconsideration request (pdf) does not address the issue of price increase caps, which were removed in the new contract.

That more-controversial provision is already the subject of an RfR, filed by NameCheap last month.

Both RfRs will be dealt with by ICANN’s Board Accountability Mechanisms Committee before being passed to the full board.

Will ICANN take a bigger slice of the .com pie, or will .domainers get URS?

Kevin Murphy, November 5, 2018, Domain Registries

Will ICANN try to get its paws on some of Verisign’s .com windfall? Or might domainers get a second slap in the face by seeing URS imposed in .com?

With Verisign set to receive hundreds of millions of extra dollars due to the imminent lifting of .com price caps, it’s been suggested that ICANN may also financially benefit from the arrangement.

In a couple of blog posts Friday, filthy domain scalper Andrew Allemann said that ICANN will likely demand higher fees from Verisign in the new .com registry agreement.

Will it though? I guess it’s not impossible, but I wouldn’t say it’s a certainty by any means.

Verisign currently pays ICANN $0.25 per transaction, the same as almost all other gTLDs. Technically, there’s no reason this could not be renegotiated.

Putting aside some of the legacy gTLD contracts, I can only think of two significant cases of ICANN imposing higher fees on a registry.

The first was .xxx, which was signed in 2011. That called for ICM Registry, now part of MMX, to pay $2 per transaction, eight times the norm.

The rationale for this was that ICANN thought (or at least said it thought) that .xxx was going to be a legal and compliance minefield. It said it envisaged higher costs for overseeing the then-controversial TLD.

There was a school of thought that ICANN was just interested in opportunistically boosting its own coffers, given that ICM was due to charge over $60 per domain per year — at the time a ludicrously high amount.

But risk largely failed to materialize, and the two parties last year renegotiated the fees down to $0.25.

The second instance was .sucks, another controversial TLD. In that case, ICANN charged registry Vox Populi a $100,000 upfront fee and per-transaction fees of $1 per domain for the first 900,000 transactions, four times more than the norm.

While some saw this as a repeat of the .xxx legal arse-covering tactic, ICANN said it was actually in place to recoup a bunch of money that Vox Pop owner Momentous still owed when it let a bunch of its drop-catch registrars go out of business a couple years earlier.

While the .sucks example clearly doesn’t apply to Verisign, one could make the case that the .xxx example might.

It’s possible, I guess, that ICANN could make the case that Verisign’s newly regained ability to raise prices opens it up to litigation risk — something I reckon is certainly true — and that it needs to increase its fees to cover that risk.

It might be tempting. ICANN has a bit of a budget crunch at the moment, and a bottomless cash pit like Verisign would be an easy source of funds. A transaction fee increase of four cents would have been enough to cover the $5 million budget shortfall it had to deal with earlier this year.

On the other hand, it could be argued that ICANN demanding more money from Verisign would unlevel the playing field, inviting endless litigation from Verisign itself.

ICANN’s track record with legacy gTLDs has been to reduce, rather than increase, their transaction fees.

Pre-2012 gTLDs such as .mobi, .jobs, .cat and .travel have all seen their fees reduced to the $0.25 baseline in recent years, sometimes from as high as $2.

In each of these cases, the registries concerned had to adopt many provisions of the standard 2012 new gTLD registry agreement including, controversially, the Uniform Rapid Suspension service.

Domainers hate the URS, which gives trademark owners greater powers to take away their domains, and the Internet Commerce Association (under the previous stewardship of general counsel Phil Corwin, since hired by Verisign) unsuccessfully fought against URS being added to .mobi et al over the last several years, on the basis that eventually it could worm its way into .com.

I’m not suggesting for a moment that ICANN might reduce Verisign’s fees, but what if URS is the price the registry has to pay for its massive .com windfall?

It’s not as if Verisign has any love for domainers, despite the substantial contribution they make to its top line.

Since the NTIA deal was announced, it’s already calling them “scalpers” and driving them crazy.

ICA lost the .com price freeze fight last week, could it also be about to lose the URS fight?

.museum soon could be open to all (no haters please)

Kevin Murphy, August 31, 2017, Domain Registrars

The 15-year-old .museum gTLD could soon be open to a great many more potential registrants, following an ICANN contract renewal.

The registry, MuseDoma, has negotiated a new Registry Agreement that rewrites eligibility rules to the extent that soon basically anyone should be able to register a name.

Since the gTLD went live back in 2002, it has been tightly restricted to legitimate museums and museum associations, as well as verifiable museum workers such as curators.

But the new proposed contract expands eligibility to “individuals with an interest or a link with museum profession and/or activity” and “bona fide museum users”.

It’s not at all clear how one proves they are a “bona fide museum user”, but the language suggests to me that the registry is likely to take registrants at their word and enforce some kind of post-registration review of how the domains are being used.

Indeed, the new contract contains the following new restriction:

Registration implies compliance with a fair use that only allows a use harmless to the image of museums and the community. Non-compliance will result in suspension or termination of the domain name.

So if you are fundamentally opposed to the idea of museums and want to set up a .museum web site trashing the entire concept, you probably won’t be allowed to.

Even though .museum was part of the “test-bed” application round from 2000, the proposed new contract has acquired chunks of the standard new gTLD RA from 2012.

As such, MuseDoma has agreed to take on the Uniform Rapid Suspension rights protection mechanism. This may prove somewhat controversial among those opposed to URS being “forced” on legacy gTLD registries before it has been approved as full ICANN policy.

The way ICANN fees are calculated — .museum’s flat fees are much lower — has not changed.

.museum has had a fairly steady 450 to 600 domains under management for the entirety of its existence.

The contract is open for public comment until October 3.

Verisign to keep price increase power under new .net contract

Kevin Murphy, April 21, 2017, Domain Registries

The wholesale price of a .net domain is likely to top $15 by 2023, under a proposed renewal of its ICANN contract revealed today.

ICANN-imposed price caps are staying in the new Registry Agreement, but Verisign retains the right to increase its fees by 10% in each of the six years of the deal’s lifespan.

But domain investors do have at least one reason to be cheerful — while the contract adds many features of the standard new gTLD registry agreement, it does not include a commitment to implement the Uniform Rapid Suspension anti-cybersquatting procedure.

The current .net annual fee charged to registrars is $8.95 — $8.20 for Verisign, $0.75 for ICANN — but Verisign will continue to be allowed to increase its portion by up to 10% a year.

That means the cost of a .net could hit $15.27 wholesale (including the $0.75 ICANN fee) by the time the proposed contract expires in 2023.

Verisign has form when it comes to utilizing its price-raising powers. It exercised all six options under its current contract, raising its share of the fee from $4.65 in 2011.

On the bright side for volume .net holders, the prices increases continue to be predictable. ICANN has not removed the price caps.

Also likely to cheer up domainers is the fact that there are no new intellectual property protection mechanisms in the proposed contract.

Several post-2000 legacy gTLDs have agreed to incorporate the URS into their new contracts, leading to outrage from domainer organization the Internet Commerce Association.

ICA is worried that URS will one day wind up in .com without a proper ICANN community consensus, opening its members up to more risk of losing valuable domains.

The fact that URS is not being slipped into the .net contract makes it much less likely to be forced on .com too.

But Verisign has agreed to several mostly technical provisions that bring it more into line with the standard 2012-round new gTLD RA.

For example, it appears that daily .net zone files will become accessible via ICANN’s Centralized Zone Data Service before the end of the year.

Verisign has also agreed to standardize the format of its data escrow, Whois and monthly transaction reports.

The company has also agreed to start discussions about handing .net over to an emergency back-end operator in the event it files for bankruptcy.

The current contract is due to expire at the end of June and the proposed new deal would kick in July 1.

It’s now open for public comment until June 13.

.xxx has its ICANN fees slashed and adopts URS

Kevin Murphy, February 8, 2017, Domain Registries

ICM Registry is to see its .xxx ICANN registry fees hugely reduced in contractual amendments approved by ICANN last week.

The changes also mean that .xxx will now become subject to the Uniform Rapid Suspension anti-cybersquatting mechanism, despite it being a pre-2012 gTLD.

.xxx becomes the latest pre-2012 gTLD to move to a contract more closely aligned with the standard Registry Agreement from the new gTLD program.

Under the complex new deal, its per-transaction fee could be reduced from $2 to $0.25 by mid-2018.

Its quarterly fixed fee will go up from $2,500 to $6,250.

ICM has also agreed to take on many aspects of the standard new gTLD Registry Agreement, the most controversial of which is the URS.

The domainer group the Internet Commerce Association was fiercely critical of this addition to the contract, as it has been when URS was brought to .jobs, .travel, .cat, .pro and .mobi.

ICA is largely concerned that URS will also be pushed upon Verisign’s .net, which is up for contract renewal this year, and eventually .com.