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Patent troll hits registrars with $60m shakedown

Kevin Murphy, January 25, 2016, Domain Registrars

A patent troll that claims it invented email reminders has launched a shakedown campaign against registrars that could be worth as much as $62 million.

WhitServe LLC, which beat Go Daddy in a patent lawsuit last year, is now demanding licenses from registrars that could add as much as $0.50 to the cost of a domain name.

According to registrar sources, registrars on both sides of the Atlantic have this month been hit by demands for hundreds of thousands or millions of dollars in patent licensing fees.

The legal nastygrams present thinly veiled threats of litigation if the recipients decline to negotiate a license.

WhitServe is a Connecticut-based IP licensing firm with connections to NetDocket, which provides software for tracking patent license annuities.

It owns US patents 5,895,468 and 6,182,078, both of which date back to the late 1990s and cover “automating delivery of professional services”.

Basically, the company reckons it invented email reminders, such as those registrars send to registrants in the weeks leading up to their domain registration expiring.

Three years ago, GoDaddy, defending itself against WhitServe’s 2011 patent infringement lawsuit, compared the “inventions” to the concept putting “Don’t forget to pick up milk” notes on the fridge: utterly obvious and non-patentable.

In December 2012, GoDaddy implied WhitServe used its patent expertise and exploited a naive 1990s USPTO to obtain “over-broad” patents.

It was trying “to monopolize the entire concept of automatic Internet reminders across all industries, including domain name registrars”, according to a GoDaddy legal filing.

But the market-leading registrar somehow managed to lose the case, opting to settle last August after its last defense fell apart, for an undisclosed sum.

Now, WhitServe is using that victory to shake loose change out of the pockets of the rest of the market.

It’s told registrars that GoDaddy and Endurance International (owner of Domain.com, BigRock and others) are both currently licensing its patents.

The deal it is offering would see registrars pay $0.50 for every domain they have under management, a number that seems to be based on .com registry numbers reported by Verisign.

The fee would be reduced to $0.30 per name for each name over one million, and $0.20 for each name over five million, I gather. That’s still more than registrars pay in ICANN fees.

If WhitServe were to target every .com registrar (which I do not believe it has, yet) its demands could amount to as much as $62 million industry-wide, given that .com is approaching 125 million names right now.

It’s not clear whether these fees are expected to be one-time payments or recurring annual fees.

It’s a trickier predicament for registrars than the usual patent shakedown, because registrars are legally obliged under their contracts with ICANN to send email reminders in a variety of circumstances.

The Expired Registration Recovery Policy requires them to email renewal reminders to customers at least twice before their registrations expire.

There’s also the Whois Data Reminder Policy, which obliges registrars to have their customers check the accuracy of their Whois once a year.

These are not services registrars are simply able to turn off to avoid these patent litigation threats.

Whether registrars will take this lying down or attempt to fight it remains to be seen.

Pirates lose privacy rights under new ICANN rules

Kevin Murphy, January 22, 2016, Domain Registrars

People operating piracy web sites would have a harder time keeping their personal information private under new ICANN rules.

ICANN’s GNSO Council last night approved a set of recommendations that lay down the rules of engagement for when trademark and copyright owners try to unmask Whois privacy users.

Among other things, the new rules would make it clear that privacy services are not permitted to reject requests to reveal a domain’s true owner just because the IP-based request relates to the content of a web site rather than just its domain name.

The recommendations also contain safeguards that would allow registrants to retain their privacy if, for example, their safety would be at risk if their identities were revealed.

The 93-page document (pdf) approved unanimously by the Council carries a “Illustrative Disclosure Framework” appendix that lays out the procedures in some depth.

The framework only covers requests from IP owners to proxy/privacy services. The GNSO was unable to come up with a similar framework for dealing with, for example, requests from law enforcement agencies.

It states flatly:

Disclosure [of the registrant’s true Whois details] cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be solely based on the fact that the Request is founded on alleged intellectual property infringement in content on a website associated with the domain name.

This fairly explicitly prevents privacy services (which in most cases are registrars) using the “we don’t regulate content” argument to shoot down disclosure requests from IP owners.

Some registrars were not happy about this paragraph in early drafts, yet it remains.

Count that as a win for the IP lobby.

However, the new recommendations spend a lot more time giving IP owners a quite strict set of guidelines for how to file such requests in the first place.

If they persistently spam the registrar with automated disclosure requests, the registrar is free to ignore them. They can even share details of spammy IP owners with other registrars.

The registrar is also free to ignore requests that, for example, don’t give the exact or representative URL of an alleged copyright infringement, or if the requester has not first attempted to contact the registrant via an email relay service, should one be in place.

The registrant also gets a 15-day warning that somebody has requested their private details, during which, if they value their privacy more than their web site, they’re able to relinquish their domain and remain anonymous.

If the registrant instead uses that time to provide a good reason why they’re not infringing the requester’s rights, and the privacy service agrees, the request can also be denied.

The guidelines would make it easier for privacy service operators to understand what their obligations are. By formalizing the request format, it should make it easier to separate legit requests from the spurious requests.

They’re even allowed to charge IP owners a nominal fee to streamline the processing of their requests.

While these recommendations have been approved by the GNSO Council, they need to be approved by the ICANN board before becoming the law of the ‘net.

They also need to pass through an implementation process (conducted by ICANN staff and GNSO members) that turns the recommendations into written procedures and contracts which, due to their complexity, I have a hunch will take some time.

The idea is that the rules will form part of an accreditation program for privacy/proxy services, administered by ICANN.

Registrars would only be able to use P/P services that agree to follow these rules and that have been accredited by ICANN.

It seems to me that the new rules may be quite effective at cracking down on rogue, “bulletproof” registrars that automatically dismiss piracy-based disclosure requests by saying they’re not qualified to adjudicate copyright disputes.

ICANN confirms domain privacy is for all

Kevin Murphy, January 22, 2016, Domain Policy

Commercial entities will not be excluded from buying domain privacy services, ICANN’s GNSO Council has confirmed.

The Council last night voted unanimously to approve a set of recommendations that would make it compulsory for privacy and proxy services to be accredited by ICANN for the first time.

The recommendations govern among other things how privacy services are expected to behave when they receive notices of trademark or copyright infringement.

But missing is a proposal that would have prevented the use of privacy for “transactional” web sites, something which caused a great deal of controversy last year.

The newly adopted recommendations clearly state that nobody is to be excluded from privacy on these grounds.

The Council voted to adopt the final, 93-page report of the Privacy and Proxy Services Accreditation Issues (pdf) working group, which states:

Fundamentally, P/P services should remain available to registrants irrespective of their status as commercial or non-commercial organizations or as individuals. Further, P/P registrations should not be limited to private individuals who use their domains for non-commercial purposes.

The minority view that web sites that process financial transactions should not be able to use privacy came from intellectual property, anti-abuse and law enforcement community members.

However, opponents said it would infringe the privacy rights of home business owners, bloggers, political activists and others.

It could even lead to vicious “doxing”-related crimes, such as “swatting”, where idiots call in fake violent crime reports against rivals’ home addresses, some said.

It also turned out, as we revealed last November, that 55% of US presidential candidates operate transactional web sites that use privacy on their domains.

Two separate registrar initiatives, one backed by the Electronic Frontier Foundation, started letter-writing campaigns that resulted in over 20,000 comments being received on the the PPSAI’s initial report last July.

Those comments are acknowledged in the PPSAI final report that the GNSO Council just approved.

The adopted recommendations (which I’ll get into in a separate article) still have to be approved by the ICANN board of directors and have to undergo an implementation process that puts the rather broad policies into concrete processes and procedures.

How one registrar allegedly dodges ICANN Compliance

Kevin Murphy, November 17, 2015, Domain Registrars

A Chinese registrar has been accused by ICANN of playing games to avoid complying with Whois policy.

In a breach notice from ICANN Compliance last week, Beijing-based 35 Technology is told that it has failed to verify Whois records as required by its accreditation agreement.

The domain in question was shoesbbalweb.com, which DomainTools’ archived screenshots show was once used to sell branded running shoes.

I understand that 35 is believed to have suspended the domain when ICANN first referred a Whois accuracy complaint to it.

It is then said to have un-suspended the domain, without any change to the Whois record, as soon as ICANN closed the complaint.

The breach notice (pdf) instructs 35 to:

Provide records and information demonstrating that 35 Technology took steps to verify and validate the Whois information of the domain name since 23 March 2015, or provide ICANN with an explanation why the domain name suspension was removed without verifying and validation Whois information

The switcheroo appears to have been brief enough that its suspended state was not recorded by DomainTools.

ICANN has a monitoring program, however, that randomly spot-checks previously complained-about domains for ongoing compliance.

The registrar, which does business at 35.com, is not tiny. It had over 450,000 domains under management, in legacy gTLDs and a handful of Chinese-script new gTLDs, at the last count.

It has until the end of the month to explain itself or risk termination.

Most US presidential hopefuls use Whois privacy despite begging for cash

Kevin Murphy, November 9, 2015, Domain Policy

More than half of the remaining US presidential candidates could have risked losing their official campaign web sites under proposed Whois privacy rules.

Today I carried out Whois queries on all 18 candidates to discover that 10, or over 55%, use a Whois privacy service.

Of the three remaining Democrat candidates, only Bernie Sanders uses privacy. Martin O’Malley and Hillary Clinton do not.

Here’s a table of the Republican candidates and their chosen privacy services. N/A means their campaigns are using what appears to be genuine contact information.

CandidateDomainPrivacy Service
Ben Carsonbencarson.comN/A
Bobby Jindalbobbyjindal.comN/A
Carly Fiorinacarlyforpresident.comDreamHost.com
Chris Christiechrischristie.comDomainDiscreet.com
Donald Trumpdonaldjtrump.comN/A
George Patakigeorgepataki.comDomainsByProxy.com
Jeb Bushjeb2016.comContactPrivacy.com
Jim Gilmoregilmoreforamerica.comN/A
John Kasichjohnkasich.comDomainPrivacyGroup.com
Lindsey Grahamlindseygraham.comN/A
Marco Rubiomarcorubio.comDomainsByProxy.com
Mike Huckabeemikehuckabee.comDomainsByProxy.com
Rand Paulrandpaul.comWhoisPrivacyServices.com.au
Rick Santorumricksantorum.comN/A
Ted Cruztedcruz.orgDomainsByProxy.com

The results are interesting because rules under discussion at ICANN earlier this year — which are apparently still on the table in other international fora — would have banned the use of privacy services for commercial web sites that allow financial transactions.

All 18 candidates — even Trump — solicit donations on their campaign sites, and many sell T-shirts, bumper stickers and such.

Back in May, a minority of ICANN’s Privacy & Proxy Services Accreditation Issues Working Group (PPSAI) were in favor of banning privacy for such registrants.

The rationale was that criminals, such as those selling counterfeit drugs, should not be allowed to mask their Whois details.

Judging by a working group report at the ICANN meeting in Dublin last month, the proposed new rules have been killed off by the PPSAI after a deluge of comments — around 22,000 — that were solicited by registrars and civil rights groups.

However, according to the Electronic Frontier Foundation, at the exact same time as the PPSAI was revealing its change of heart, the US government was pushing for virtually identical policy at a meeting of the OECD, the Organization for Economic Cooperation and Development.

The EFF says the proposed OECD Recommendation “would require domain name registration information to be made publicly available for websites that are promoting or engaged in commercial transactions with consumers.”

It’s remarkable that the US government is apparently pushing for rules that are being violated by most of its own hopeful commanders-in-chief as part of the democratic process.

Clearly, fake pharmacies are not the only class of crook to find value in privacy.