Closed gTLD debate threatens Google and Amazon

Howls of criticism about Google, Amazon and others’ plans to grab huge swathes of new gTLD real estate and keep it to themselves seem to have spurred ICANN into action.
A public comment period opened this week seeks community feedback (indirectly) on applications such as Amazon’s .music, L’Oreal’s .beauty and Google’s .blog, among many others.
These gTLDs have all been proposed with “single-registrant” business models, in which the registry controls all second-level domains and regular registrars cannot sell them to anyone else.
It’s the “dot-brand” model, but applied to generic dictionary words for which the applicants have no trademark rights.
Scores of such applications have been made, notably by Google and Amazon, but they have drawn criticism from many in the ICANN community, such as a small group of registrars and others led by Blacknight Solutions.
Members of the Governmental Advisory Committee, most vocally Australia, have also expressed serious concerns about the model, saying it could be anti-competitive.
ICANN’s board of directors is currently mulling over these complaints, and has thrown the issue open to public comment to aid in its deliberations.
What it wants from you is:

proposed objective criteria for:

• classifying certain applications as “closed generic” TLDs, i.e., how to determine whether a string is generic, and
• determining the circumstances under which a particular TLD operator should be permitted to adopt “open” or “closed” registration policies.

The way the public comment request is phrased should be quite worrying to applicants for closed generic gTLDs.
It seem to assume that ICANN should be classifying gTLDs, something it has steadfastly refused to do for all of the years these kinds of debates have been raging.
What is a “closed generic” anyway?
The DI PRO New gTLD Application Tracker classifies gTLD applications into three buckets: Open, Restricted and Single-Registrant.
We made no attempt to segregate dot-brands from other Single Registrant bids, precisely because there’s currently no such thing as a dot-brand under ICANN’s rules.
There doesn’t seem to be much community concern about the apps we have classified as “Restricted” — applications for .lawyer that propose to vet registrants for their lawyerly credentials, for example.
The concern is all directed at Single Registrant bids. We have 912 of these in our database.
Many of these are dot-brands, where the applied-for string is an exact match with a famous trademark, but many are for dictionary words for which the applicant has no preexisting rights.
In order to sanely operate a dot-brand, applicants must request an exemption to the ICANN rules that oblige them to offer their gTLDs via accredited registrars on a non-discriminatory basis.
This Code of Conduct is a part of the base Registry Agreement for new gTLDs, but it contains a carve-out for single-registrant applicants:

Registry Operator may request an exemption to this Code of Conduct, and such exemption may be granted by ICANN in ICANN’s reasonable discretion, if Registry Operator demonstrates to ICANN’s reasonable satisfaction that (i) all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use, (ii) Registry Operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an Affiliate of Registry Operator, and (iii) application of this Code of Conduct to the TLD is not necessary to protect the public interest.

This provision was added specifically in order to enable “dot-brands” to exist.
It would be pretty weird if, for example, L’Oreal was forced to make .loreal domains available via hundreds of registrars. By requesting an exception, L’Oreal has the chance to keep .loreal in-house.
However, because ICANN deliberately has made no distinction between commonly used words and brands (.amazon could be both), L’Oreal was also able to apply for .beauty as a single-registrant gTLD.
It’s not really a loophole — the possibility of companies applying for closed generics was envisaged by ICANN and the policy-making community long before the application window even opened.
Make no mistake, this is well-trodden ground. ICANN had plenty of opportunities to address the issue before the new gTLD application window opened a year ago and it quite consciously decided not to.
The feeling over the last couple of years has been that objection mechanisms such as the Community Objection, as well as GAC Advice, would be sufficient to close down these problematic gTLDs bids.
During the year-long community discussion about registry-registrar vertical integration, the possibility of closed generics was acknowledged and heavily debated.
The GNSO’s Vertical Integration Working Group failed to reach consensus on almost everything, but most of the recommendations emerging from it included some Code of Conduct exemptions for dot-brands.
Some in the WG suggested that the exemptions should only apply to true dot-brands (ie, those back up by a trademark) but ICANN decided against referring to trademarks when it wrote the Code of Conduct due to the very real possibility that it would encourage gaming by speculators.
That problem has not disappeared. While there’s no such gaming in the current batch of applications, there will be second and third and fourth application rounds that the rules being hastily debated at the last minute right now will also (presumably) apply to.
What do closed generic applicants want?
Some ICANN community members assumed that it would be the big domainer-backed companies (later emerging as Donuts, Uniregistry et al) that would attempt these kinds of land-grabs.
But that (so far) hasn’t turned out to be the case. The domainers have generally proposed registration policies that are super, super liberal in comparison to Google, Amazon and other closed-generic applicants.
I believe it’s partly because it’s these massively powerful e-commerce companies that are the ones making the land-grabs, and the scale of the grabs, that the issue of closed generics has reemerged now.
There are two broad use cases of concern here.
First, the .beauty scenario: L’Oreal keeps all the second-level .beauty domains to itself, essentially converting the word “beauty” into a brand name as far as the DNS is concerned.
Second, the .blog scenario: Google implements a policy that all .blog domains must use its Blogger service, potentially to the detriment of competitors such as WordPress or Tumblr.
In both scenarios, the bids could be rejected in their entirety as a result of formal objections, ICANN board action or Governmental Advisory Committee advice.
If the applications were approved, ICANN could also subjectively apply the ill-defined “public interest” test outlined above to force compliance with the Code of Conduct.
But that would merely lead to the bizarre scenario where 1,700 accredited registrars all qualify to sell .music domain names, but the only potential customer is Amazon.com’s intellectual property management department (which wants to run .music as a single-registrant gTLD).
As ICANN points out in its public comments request, the Code of Conduct regulates who can sell domain names in new gTLDs, not who they can sell them to.
The .blog scenario is a little different.
This is what Google, which has applied via its Charleston Road Registry subsidiary, has proposed (with my emphasis):

Should ICANN grant Charleston Road Registry’s exemption to the Code of Conduct, and the proposed gTLD operate with Google as the sole registrar and registrant, members of the public will not be able to directly register domain names in this new gTLD. Users will, however, be given the opportunity to make use of a vanity second-level domain as a memorable identifier linked to content in Blogger.

In other words, Google will “own” all the second-level .blog domains, but will allow Blogger customers to “use” them.
It looks like what it is: a transparently bogus attempted workaround of the Code of Conduct, designed to let Google exclude rival blogging services and independent, self-managed bloggers from .blog.
(Disclosure: DI is an independent, self-managed blog.)
However, I can’t see how what Google has proposed could possibly qualify for an exemption, which is only supposed to be granted provided the registry does not “transfer control or use of any registrations in the TLD to any third party”.
If sanity prevails, Google probably won’t qualify for an exemption.
But that won’t stop it tying .blog to Blogger.
The Code of Conduct, remember, is only concerned with equal, non-discriminatory access for accredited registrars. It does not speak to registry services or registry policies.
Google could possibly still have a registry policy stating that all .blog domains must point to Blogger.
In addition, Google could make the registration fee $0, making it unattractive for most registrars to carry (though I guess registrars could use it as a loss-leader, they wouldn’t be able to up-sell hosting and other services if all .blog domains have to use Blogger).
In conclusion
Applicants for closed generics paid millions of dollars to apply, using the rules set down in the Applicant Guidebook at the time, and I can’t see them being too happy about this eleventh hour surprise.
However, there can be little doubt that ICANN, if its role is to protect the public interest and consumer trust, has to seriously tackle the issue of closed generics.
But it has to address it in 2011.

ICANN’s new gTLD Public Interest Commitments idea: genius or pure crazy?

ICANN has given new gTLD applicants a month to draft their own death warrants.
Okay, that might be a little hyperbolic. Let’s try again:
ICANN has given each new gTLD applicant 28 days to come up with a list of voluntary “Public Interest Commitments” that, if breached, could lead to the termination of their registry contracts.
The proposed, far-reaching, last-minute changes to the basic new gTLD Registry Agreement were introduced, published and opened for public comment on Tuesday.
PICs — as all the cool kids are calling them — are designed to appease ICANN’s Governmental Advisory Committee, which wants applicants to be held accountable to statements made in their gTLD applications.
If an applicant said in its application for .lawyer, for example, that only actual lawyers will be able to register a .lawyer domain name, the GAC wants ICANN to be able to step in and enforce that promise if the registry changes its registration policies at a later date.
Public Interest Commitments are the way ICANN proposes to let applicants state clearly what they commit to do and not to do, either by flagging parts of their existing application as binding commitments or by writing and submitting entirely new commitments.
Submitting a set of PICs would be voluntary for applicants, but once submitted they would become a binding part of their Registry Agreement, assuming their gTLD is approved and delegated.
“These are commitments you’re making to the community, to the governments, to everybody that can object to your applications, these are not commitments you’re making with ICANN,” ICANN COO Akram Atallah said on Tuesday’s webinar.
Registries would be subject to a new dispute policy (the Public Interest Commitment Dispute Resolution Process or PICDRP) that would enable third parties to file official complaints about breaches.
“We’re allowing third parties that are affected to be able to bring these claims, and then based upon the outcome of the dispute resolution process ICANN will enforce that third party dispute resolution result,” ICANN general counsel John Jeffrey said.
Registries that lost a PICDRP would have to “implement and adhere to any remedies ICANN imposes” up to and including the termination of the registry contract itself.
ICANN is asking applicants to submit their PICs before March 5, just 28 days after revealing the concept.
How PIC (probably) would work
Let’s take an example new gTLD application, selected entirely at random.
Donuts has applied for .dentist.
While the applied-for string suggests that only dentists will be able to register domain names, like all Donuts applications the gTLD would actually be completely open.
The government of Australia has filed a GAC Early Warning against this bid, stating that “does not appear to have proposed sufficient protections to address the potential for misuse”.
The Aussies want Donuts to detail “appropriate mechanisms to mitigate potential misuse and minimise potential consumer harm” or risk getting a potentially lethal GAC Advice objection to its bid.
If Donuts were so inclined, it could now attach a PIC to its .dentist bid, outlining its commitment to ensuring that .dentist is not abused by amateur dental surgery enthusiasts.
The PIC would be subject to public review and comment. If, subsequently, Donuts won the .dentist contention set, the PIC would be attached to its .dentist Registry Agreement and become binding.
Donuts may even stick to its commitments. But the moment some Marathon Man-inspired nutter managed to slip through the cracks, Donuts would be open to PICDRP complaints, risking termination.
What’s good about this idea?
From one perspective, PIC is a brilliantly clever concept.
The proposed solution doesn’t require applicants to amend their applications, nor would it require lengthy contractual negotiations during the gTLD approval and delegation process.
Applicants could merely attach their commitments to the base registry agreement, sign it, and be on their merry way.
This means fewer delays for applicants and relatively little additional up-front work by ICANN.
On an ongoing basis, the fact that PICs would be enforceable only by third parties via the PICDRP means fewer headaches for ICANN compliance and fewer debacles like the aborted attempt to bring .jobs into line.
Finally, it’s also completely voluntary. If applicants don’t want to file a PIC, they don’t have to. Indeed, most applicants aren’t even in a position where they need to think about it.
Do I sense a “but”?
But I can’t see these proposals going down too well in applicant land.
ICANN is, essentially, giving applicants one short month to bind themselves to a completely new, almost completely unknown dispute resolution process.
Repeat: the PICDRP does not yet exist.
Indications were given that it will be modeled on existing dispute resolution procedures in the Applicant Guidebook, but there’s no actual text available to review yet.
We do know that the process would be designed to enable third parties to file complaints, however. Agreeing to PICDRP could therefore potentially open up applicants to competitive or nuisance complaints.
The “remedies” that ICANN could impose when a PICDRP case is lost are also currently rather vague.
While the nuclear option (termination) would be available, there’s no information yet about possible lesser remedies (financial penalties, for example) for non-compliance.
I’ve talked to enough domain name industry lawyers over the years to guess that most of them will take a very dim view of PIC, due to these uncertainties.
One of the guiding principles of the new gTLD program from the outset was that it was supposed to be predictable. ICANN has veered away from this principle on multiple occasions, but these eleventh-hour proposed changes present applicants with some of the biggest unknowns to date.
The timeline doesn’t work
The raison d’être for the PIC concept is, ostensibly, to enable applicants to avoid not only potential GAC Advice but also official objections by other third parties.
But according to ICANN documentation, applicants are being asked to submit their PICs by March 5. ICANN will publish them March 6. They’d then be open for public review until April 5 before becoming final.
But the deadline for filing objections is March 13. That deadline also applies to objections filed by governments (though not GAC Advice, which is expected to come in mid-late April).
Judging by this timeline, potential objectors would have to decide whether to file their objections based on PICs that have been published for just one week and that could be amended post-deadline.
Unless ICANN extends the objection filing window, it’s difficult to see how PIC could be fit for its stated purpose.
On the bright side
I believe that only a small percentage of applicants will be affected by PIC.
Out of 1,917 applications and 1,409 strings, GAC governments filed just 242 Early Warnings against 145 strings. Some of those warnings merely tell the applicant to withdraw its bid, which no amount of PIC will cure.
I expect that very few, if any, applicants without Early Warnings will bother to file PICs, unless of course the objections deadline is moved and PIC becomes an effective way to avoid objections.
For those with Early Warnings, an alternative strategy would be to lobby friendly GAC members — demonstrably flexible to lobbying, judging by the Early Warnings — to ensure that they do not receive full, consensus GAC Advice against their applications.
That would be risky, however, as there’s currently no way of knowing how much weight ICANN’s board of directors will give to non-consensus GAC Advice against applications.

IFFOR targets new gTLDs with policy service

The International Foundation For Online Responsibility, which sets policy for .xxx, wants to broaden its scope and is to launch a “Policy Engine” service for new gTLD registries.
Kieren McCarthy, who has been working for IFFOR as its public participation manager for the last year, has been tapped to lead the organization too, taking over from Joan Irvine as executive director in April.
IFFOR is the sponsoring organization for .xxx, independent but created by registry manager ICM Registry as a way to demonstrate to ICANN that it planned to operate the porn gTLD responsibly.
It’s kept a bit of a low profile since .xxx launched, only emerging to distribute some small grants to worthy causes, but McCarthy says that it’s built up substantial policy-making and compliance expertise.
Now, it wants to let new gTLD registries outsource these functions to it.
“Broadly, the Policy Engine service lets gTLD applicants outsource their policy issues to an independent body,” McCarthy said.
IFFOR reckons plenty of new gTLDs will want such services, especially given the increased interest from governments in how new gTLDs are operated.
As the organization is currently set up to deal only with .xxx — it’s funded $10 a year from every .xxx sold — only three of its nine-member Policy Council are not members of the adult entertainment industry or connected to ICM.
Additionally, ICM’s general counsel is on its three-member board of directors.
But McCarthy said that the Policy Council, which also has substantial expertise in privacy, child protection and free speech issues, usually uses sub-groups to come up with its policies.
“The majority of what we do is applicable across any top-level domain,” he said.
McCarthy is the former journalist and ICANN staffer, current CEO of .nxt. When he takes over from Irvine in April, she is expected to stay around as a consultant.

ICANN has found a sub-$500 URS provider

ICANN has picked a provider for its Uniform Rapid Suspension anti-cybersquatting service, one that’s willing to manage cases at under $500 per filing.
The news came from new gTLD program manager Christine Willett during webcast meetings this week.
“We have identified a provider for the URS who’s going to be able to provide that service within the target $300 to $500 filing fee price range. We’re in the process of formalizing that relationship,” she said last night.
The name of the lucky provider has not yet been revealed — Willett expects that news to come in February — but it’s known that several vendors were interested in the gig.
URS is a complement to the existing UDRP system, designed to enable trademark owners to execute quick(ish) takedowns, rather than transfers, of infringing domain names.
ICANN found itself in a bit of a quandary last year when UDRP providers WIPO and the National Arbitration Forum said they doubted it could be done for the target fee without compromising registrant rights.
But a subsequent RFP — demanded by members of the community — revealed several providers willing to hit the sub-$500 target.
ICANN expects to approve multiple URS vendors over time.

Chehade: “Honestly, if it was up to me, I would delay the whole release of new gTLDs by at least a year…”

“…but I’m not going to.”
CEO Fadi Chehade this afternoon delivered a blisteringly frank assessment of ICANN’s new gTLD program, admitting that if it were up to him he would delay the whole thing by a year.
Speaking bluntly, mainly to registries and registrars, at a regional ICANN meeting in Amsterdam this afternoon, Chehade painted a stark picture of the challenge ICANN faces in meeting its deadlines.
It’s worth quoting at length:

Honestly, if it was up to me, I would delay the whole release of new gTLDs by at least a year.
I’m being very candid with you. I know none of you want to hear this, and I’m not going to do this — let me repeat, I’m not going to do this — but you should know that a lot of the foundations that I would be comfortable with, as someone who has built businesses before, are just not yet there.
I’m being super-candid with you because many of you wrote me in the last three weeks to say: ‘Be up-front with us, we’re business-people, tell us the truth.’ Well, the truth is that the people, processes and tools to enable a sector such as this are being built as the car is already running very fast.
We’re putting enormous pressure on our team to not to slip by a day. I’m now managing them with Akram [Atallah, COO] down to days. Before I came it was by quarters, by months, and I say no — every day we slip we’re delaying this industry from serving the market it’s supposed to serve.
It’s just a different mindset. And it’s a difference set of, frankly, talents that we’re bringing to the table. We have people who took six years to write the [new gTLD Applicant] Guidebook and we’re asking engineers and software people and third-party vendors and hundreds of people to get that whole program running in six months.
When the number two at IBM called me, Erich Clementi, after we signed the deal with them to do the [Trademark Clearinghouse] he said “Are you nuts?”. Literally, quote. He said: “Fadi you’ve built these systems for us before. You know it takes three times the amount of time it takes to write the specs to build reliable systems.”
But that’s the position we’re in, guys. I’m being candid with you. I know all of I know all of you want me to have this thing up and running yesterday. I want it running the day before yesterday. But this is what we’re facing. We’re facing a difficult situation, we’re working hard as we can, our people are at the edge. We have people who are working seven days a week now — it’s never happened before — on the new gTLD program.
We’re hiring as fast as we can. We’re now taking away from Christine [Willett, new gTLD program manager] some of the work she had to do so she can communicate better with you.
We’re doing a whole bunch of things so we can deliver this for you.
I don’t mean to scare you, because I know many of your businesses rely on this, but the right people are now in place, we’re building it as fast as we can but I want you to understand that this is tough, and I wish it were different. I wish you would all raise your hands and say: “You know what? Let’s take a break and meet in a year”.
I know you can’t do that, I know I can’t do that, and I know that the market can’t wait for that.
We’re going to do our best, and if in the process if we miss telling you something, if we move too fast on something before we share it with everybody as we normally should… give us a little bit of a break.
I don’t want to delay this program, but under all circumstances my mind would tell me: stop.

Chehade’s remarks come two weeks after new gTLD applicants gave new program manager Willett a good kicking during a webinar updating them on the program’s progress, during which it was revealed that a key deadline had been missed for at least the fourth or fifth time.
What else can we learn from his comments?
Well… here’s my interpretation:

• Put down the mic and back off, Kinderis. Yeah, that means you too, Fausett, and you, Neuman.
• It will be an absolute miracle if the Trademark Clearinghouse doesn’t suffer from teething troubles.
• Applicants are almost certainly going to see more delays of some form or another (always a safe prediction), and probably from the place they least expect it.
• The program wasn’t ready when it was approved in May 2011 (as many people, including yours truly, said at the time and have continued to say since).
• It’s probably not much fun working at ICANN right now, but at least the new boss knows what the hell he’s doing.

Industry man Chehade admits strawman “mistake”

ICANN CEO Fadi Chehade today admitted that he badly handled recent discussions about improving trademark protections in the new gTLD program, saying he made a “mistake”.
The remarks came during his speech at a meeting of registries and registrars in Amsterdam this afternoon.
The address, which along with a Q&A lasted an hour, was remarkable for Chehade’s passion and candor, and his apparently conscious decision to portray himself as an industry man.
But he arguably risked alienating the parts of the ICANN community that would certainly not define themselves as part of the “industry”, such as the intellectual property community.
This was no more evident as when he discussed the controversial trademark protection “strawman” proposals.
“We’re moving very fast at ICANN now,” he said. “You almost have no idea how fast we’re moving. We are opening so many new things and fixing so many things, that frankly should have been done for a long time at ICANN, that the speed at which we’re moving is making me, and sometimes my team, make mistakes.”
“I made one big mistake in the last few months,” he said. “I didn’t quite fully understand… this concept of ‘trying to take a second bite at the apple’, when I engaged with the Trademark Clearinghouse discussions.”
That’s a reference to meetings in Brussels and Los Angeles late last year, convened by Chehade at the request of the Intellectual Property Constituency and Business Constituency.
These meetings came up with the strawman proposals, which would create (arguably) new rights protection mechanisms and bolster others in favor of trademark owners.
Registries, registrars and new gTLD applicants complained that the IPC/BC proposals had already been considered multiple times by ICANN and the community and discarded.
Apparently Chehade has now come around to their way of thinking, helped in part by Non-Commercial User Constituency member Maria Farrell’s complaint about the strawman process.
“I frankly didn’t fully understand until I went through the process, and appreciated what people were actually trying to do,” Chehade said. “So, okay, big learning experience for me… I take it, I move on and hopefully I won’t make that mistake again.”
What does this mean for the strawman? Well, it’s not looking great.
While the proposals are still open for public comment, at some point ICANN is going to have to decide which bits it wants to adopt as “implementation” and which are more suited to policy development.
After today’s comments, I’d expect Chehade to be less inclined to push for the former.

GAC Early Warnings just got a whole lot more important

ICANN will let new gTLD applicants change their applications in order to respond to the concerns of governments, it has emerged.
Changes to applications made as a result of Early Warnings made by the Governmental Advisory Committee “would in all likelihood be permitted”, ICANN chair Steve Crocker informed the GAC this week.
ICANN is also looking at ways to make these changes enforceable in the respective applicants’ registry contracts.
Combined, the two bits of news confirm that the GAC will have greater power over new gTLD business models than previously anticipated.
The revelations came in the ICANN board of directors’ official response to GAC advice emerging from last October’s Toronto meeting.
After Toronto, the GAC had asked ICANN whether applicants would be able to change their applications in response to Early Warnings, and whether the changes made would be binding.
In response, Crocker told his GAC counterpart, Heather Dryden, that ICANN already has a procedure for approving or denying application change requests.
The process “balances” a number of criteria, including whether the changes would impact competing applicants or change the applicant’s evaluation score, but it’s not at all clear how ICANN internally decides whether to approve a request or not. So far, none have been denied.
Crocker told Dryden:

It is not possible to generalize as to whether change requests resulting from early warnings would be permitted in all instances. But if such requests are intended solely to address the “range of specific issues” listed on page 3 of the Toronto Communique, and do not otherwise conflict with the change request criteria noted above, then such request would in all likelihood be permitted.

The “range of specific issues” raised in the Toronto advice (pdf) are broad enough to cover pretty much every Early Warning:

• Consumer protection
• Strings that are linked to regulated market sectors, such as the financial, health and charity sectors
• Competition issues
• Strings that have broad or multiple uses or meanings, and where one entity is seeking exclusive use
• Religious terms where the applicant has no, or limited, support from the relevant religious organisations or the religious community
• Minimising the need for defensive registrations
• Protection of geographic names
• Intellectual property rights particularly in relation to strings aimed at the distribution of music, video and other digital material
• The relationship between new gTLD applications and all applicable legislation

Some Early Warnings, such as many filed against gTLD bids that would represent regulated industries such as finance and law, ask applicants to improve their abuse mitigation measures.
To avoid receiving potential lethal GAC Advice this April, such applicants were asked to improve their rights protection mechanisms and anti-abuse procedures.
In some cases, changes to these parts of the applications could — feasibly — impact the evaluation score.
The GAC also made it clear in Toronto that it expects that commitments made in applications — including commitments in changes made as a result of Early Warnings — should be enforceable by ICANN.
This is a bit of a big deal. It refers to Question 18 in the new gTLD application, which was introduced late at the request of the GAC and covers the “mission/purpose” of the applied-for gTLD.
Answers to Question 18 are not scored as part of the new gTLD evaluation, and many applicants took it as an invitation to waffle about how awesome they plan to be.
Now it seems possible they they could be held to that waffle.
Crocker told Dryden (with my emphasis):

The New gTLD Program does not currently provide a mechanism to adopt binding contractual terms incorporating applicant statements and commitment and plans set forth within new gTLD applications or arising from early warning discussions between applicants and governments. To address concerns raised by the GAC as well as other stakeholders, staff are developing possible mechanisms for consideration by the Board New gTLD Committee. That Committee will discuss the staff proposals during the upcoming Board Workshop, 31 Janaury – 2 February.

In other words, early next month we could see some new mechanisms for converting Question 18 blah into enforceable contractual commitments that new gTLD registries will have to abide be.

New gTLD “strawman” splits community

The ICANN community is split along the usual lines on the proposed “strawman” solution for strengthening trademark protections in the new gTLD program.
Registrars, registries, new gTLD applicants and civil rights voices remain adamant that the proposals — hashed out during closed-door meetings late last year — go too far and would impose unreasonable restrictions on new gTLDs registries and free speech in general.
The Intellectual Property Constituency and Business Constituency, on the other hand, are (with the odd exception) equally and uniformly adamant that the strawman proposals are totally necessary to help prevent cybersquatting and expensive defensive registrations.
These all-too-predictable views were restated in about 85 emails and documents filed with ICANN in response to its initial public comment period on the strawman, which closed last night.
Many of the comments were filed by some of the world’s biggest brand owners — many of them, I believe, new to the ICANN process — in response to an International Trademark Association “call to action” campaign, revealed in this comment from NCS Pearson.
The strawman proposals include:

• A compulsory 30-day heads-up window before each new gTLD starts its Sunrise period.
• An extension of the Trademark Claims service — which alerts trademark owners and registrants when a potentially infringing domain is registered — from 60 days to 90 days.
• A mandatory “Claims 2” service that trademark owners could subscribe to, for an additional fee, to receive Trademark Claims alerts for a further six to 12 months.
• The ability for trademark owners to add up to 50 confusingly similar strings to each of their Trademark Clearinghouse records, provided the string had been part of a successful UDRP complaint.
• A “Limited Preventative Registration” mechanism, not unlike the .xxx Sunrise B, which would enable trademark owners to defensively register non-resolving domains across all new gTLDs for a one-off flat fee.

Brand owners fully support all of these proposals, though some companies filing comments complained that they do not go far enough to protect them from defensive registration costs.
The Limited Preventative Registration proposal was not officially part of the strawman, but received many public comments anyway (due largely to INTA’s call-to-action).
The Association of National Advertisers comments were representative:

an effective LPR mechanism is the only current or proposed RPM [Rights Protection Mechanism] that addresses the critical problem of defensive registrations in the new Top Level Domain (gTLD) approach. LPR must be the key element of any meaningful proposal to fix RPMs.

Others were concerned that the extension to Trademark Claims and proposed Claims 2 still didn’t go far enough to protect trademark rights.
Lego, quite possibly the most aggressive enforcer of its brand in the domain name system, said that both time limits are “arbitrary” and called for Trademark Claims to “continue indefinitely”.
It’s pretty clear that even if ICANN does adopt the strawman proposals in full, it won’t be the end of the IP community’s lobbying for even stronger trademark protections.
On the other side of the debate, stakeholders from the domain name industry are generally happy to embrace the 30-day Sunrise notice period (many will be planning to do this in their pre-launch marketing anyway).
A small number also appear to be happy to extend Trademark Claims by a month. But on all the other proposals they’re clear: no new rights protection mechanisms.
There’s a concern among applicants that the strawman proposals will lead to extra costs and added complexity that could add friction to their registrar and reseller channel and inhibit sales.
The New TLD Applicant Group, the part of the Registries Constituency representing applicants for 987 new gTLDs, said in its comments:

because the proposals would have significant impact on applicants, the applicant community should be supportive before ICANN attempts to change such agreements and any negative impacts must be mitigated by ICANN.

There’s a concern, unstated by NTAG in its comments, that many registrars will be reluctant to carry new gTLDs at launch if they have to implement more temporary trademark-protection measures.
New registries arguably also stand to gain more in revenue than they lose in reputation if trademark owners feel they have to register lots of domains defensively. This is also unstated.
NTAG didn’t say much about the merits of the strawman in it comments. Along with others, its comments were largely focused on whether the changes would be “implementation” or “policy”, saying:

There can be no doubt that the strawman proposal represents changes to policy rather than implementation of decided policy.

If something’s “policy”, it needs to pass through the GNSO and its Policy Development Process, which would take forever and have an uncertain outcome. Think: legislation.
If it’s “implementation”, it can be done rather quickly via the ICANN board. Think: executive decision.
It’s becoming a bit of a “funny cause it’s true” in-joke that policy is anything you don’t want to happen and implementation is anything you do.
Every comment that addresses policy vs implementation regarding the strawman conforms fully to this truism.
NTAG seems to be happy to let ICANN mandate the 30-day Sunrise heads-up, for example, even though it would arguably fit into the definition of “policy” it uses to oppose other elements of the strawman.
NTAG, along with other commenters, has rolled out a “gotcha” mined from a letter then-brand-new ICANN CEO Fadi Chehade sent to the US Congress last September.
In the letter, Chehade said: “ICANN is not in a position to unilaterally require today an extension of the 60-day minimum length of the trademark claims service.”
I’m not sure how much weight the letter carries, however. ICANN could easily argue that its strawman negotiations mean any eventual decision to extend Claims was not “unilateral”.
As far as members of the the IPC and BC are concerned, everything in the strawman is implementation, and the LPR proposal is nothing more than an implementation detail too.
The Coalition for Online Accountability, which represents big copyright holders and has views usually in lock-step with the IPC, arguably put it best:

The existing Rights Protection Mechanisms, which the Strawman Solution and the LPR proposal would marginally modify, are in no way statements of policy. The RPMs are simply measures adopted to implement policies calling for the new gTLD process to incorporate respect for the rights (including the intellectual property rights) of others. None of the existing RPMs is the product of a PDP. They originated in an exercise entitled the Implementation Recommendation Team, formed at the direction of the ICANN Board to recommend how best to implement existing policies. It defies reason to assert that mechanisms instituted to implement policy cannot now be modified, even to the minimal extent provided in the current proposals, without invoking the entire PDP apparatus.

Several commenters also addressed the process used to create the strawman.
The strawman emerged from a closed-doors, invitation-only event in Los Angeles last November. It was so secretive that participants were even asked not to tweet about it.
You may have correctly inferred, reading previous DI coverage, that this irked me. While I recognize the utility of private discussions, I’m usually in favor of important community meetings such as these being held on the public record.
The fact that they were held in private instead has already led to arguments among even those individuals who were in attendance.
During the GNSO Council’s meeting December 20 the IPC representative attempted to characterize the strawman as a community consensus on what could constitute mere implementation changes.
He was shocked — shocked! — that registrars and registries were subsequently opposed to the proposals.
Not being privy to the talks, I don’t know whether this rhetoric was just amusingly naive or an hilariously transparent attempt to capitalize on the general ignorance about what was discussed in LA.
Either way, it didn’t pass my sniff test for a second, and contracted parties obviously rebutted the IPC’s take on the meeting.
What I do know is that this kind of pointless, time-wasting argument could have been avoided if the talks had happened on the public record.

Twitter files UDRP over twitter.org

Twitter has filed a cybersquatting complaint over the domain name twitter.org, which is currently being used for one of those bogus survey scam sites.
The domain has been registered since October 2005 — six months before Twitter was created — but appears to have changed hands a number of times since then.
It’s been under Whois privacy since mid-2011, but the last available unprotected record shows the domain registered to what appears to be Panama-based law firm.
Hiding ownership via offshore shell companies is a common tactic for people cybersquatting high-profile brands.
The UDRP complaint, which looks like a slam-dunk to me, has been filed with WIPO.

Policy versus implementation… shouldn’t that be complexity versus simplification? [Guest Post]

ICANN has just published a paper that attempts to frame what is policy and what is implementation. Now, if you’re a normal person, your natural response would be “who cares?”.
But if you’re an Icannite, chances are you’re already in a bit of a state. Because the question of what, within the ICANN decision-making process constitutes policy development, and what should be considered implementation of policies that have already been developed, is one that has grown contentious indeed in recent times.
The theory behind ICANN is that it works by bringing together groups of people from various backgrounds or with various interests and then waiting until they all take a decision. That can then become part of the sets of official guidelines that govern the way the Internet’s addressing and numbering system works.
In this obvious oversimplification of the ICANN model, the group of people are called stakeholders and the decisions they take are policies. The way they arrive at those decisions goes by the sweet name of “bottom-up, consensus-driven, policy development process”.
This is what makes ICANN such a unique governance body. One that (in theory) takes into account the opinions and inputs of all interested parties.
It is designed to prevent one view from dominating all others, be it the opinion of industry insiders, politicians or even free-speech advocates — all groups with legitimate interests, but all groups that, when they find themselves in the ICANN fish pond, have to listen to the other fish.
Except that they don’t always want to. And in recent years, as the pressure on the ICANN model has increased because of the new gTLD program, there have been several occasions when some thought it would be better to cut through (or go around) the policy development process to get things done.
This is where the policy versus implementation debate comes from. It’s a boring one to most balanced human beings, but a crucial one for those who rate ICANN and the work that goes on there as a major interest.
The new staff paper is a welcome initiative by ICANN to try and make real progress on a debate that has, up until now, simply exacerbated tensions within the ICANN community.
It’s a first step. A kind of “state of play” view of what can at present be considered policy within the ICANN system, and a first attempt at separating that from implementation.
It’s only eight pages long (and if that seems long to you, believe me, as far as ICANN papers go, this is the equivalent of a 140-character tweet), but if you can’t be bothered to read it, I’ll break it down for you in just one word: complexity.
A first step towards much needed simplification
The real issue behind this debate is the overly complex thing that ICANN has become. Don’t agree? Even though staff need to write an eight-page report just to help everyone, including themselves, understand what “policy” means?
Read the paper and marvel at the number of different processes that could be termed policy within ICANN, including something called “little p policies”, as opposed to “Capital P Policies”. Then there’s “formal policies”, “operational policies” and even “consensus policies”.
Just in setting that scene, the staff paper is useful!
Let’s hope it leads all ICANN stakeholders to the clear realization that this can’t go on any longer. ICANN must simplify its processes so that there is no longer a need to spend time and energy splitting hairs on deciding things like: when in the ICANN universe is policy making actually making policy, and when is it implementing policies that have already been made?
This is a guest post by domain name industry consultant Stephane Van Gelder of Stephane Van Gelder Consulting. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.