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.

Crocker sees new gTLDs going live “towards the end of the year”

Not exactly the news that new gTLD applicants wanted to hear.
ICANN chairman Steve Crocker has put a tentative date of “towards the end of the year” for the first approval and delegation of new gTLDs, months later than some applicants were expecting.
In a video interview with ICANN media affairs chief Brad White, reviewing the organization’s goals for the year, Crocker said:

We will see some strings towards the end of the year I think actually approved and perhaps delegated into the root and so it will be interesting to see the how all that comes out what kinds of moves are made.

That time-frame is later than most industry experts speaking to Bloomberg BNA for a recent briefing paper had predicted. Some expected new gTLDs to start hitting the root as early as April.
Better news for applicants came in Crocker’s response to a question about whether ICANN was wedded to its 1,000 delegations-per-year limit, which could artificially throttle some applicants’ plans. He said:

I do not want to suggest that there will be a change, but I suspect there is plenty of capacity to increase that somewhat if it were necessary to do so.

The interview also discusses ICANN’s investment strategy for its new gTLD funds, its meetings strategy for the next few years, and the Registrar Accreditation Agreement (which Crocker said is “nearing completion”).
Watch the whole thing here:

FTC chief says most new gTLD bids are “defensive”

The US Federal Trade Commission is still “looking at” ICANN’s new gTLD program amid concerns that most of the applicants applied defensively, it has emerged.
FTC chairman Jon Leibowitz also said today that he thinks new gTLDs will cause consumer confusion and lead to an increase in fraud.
“We have been very, very concerned about ICANN and their dramatic expansion of the domain names, which we think will cause consumer confusion and even worse lead to more areas where malefactors can hide from the law while defrauding consumers,” Leibowitz said.
“A lot of companies that have plunked down $185,000 per domain name — and there have been hundreds of companies that have done it — have mostly done it for defensive purposes,” he added.
Most new gTLDs are not dot-brands, so Leibowitz probably misspoke when he said that “most” applications are defensive. Within the subset of bids that are dot-brands, he may be on firmer ground.
His comments came during a press conference to discuss the FTC’s settlement of its competition probe of Google, which has itself applied for almost 100 new gTLDs.
The settlement agreement relates to Google’s search practices and not its gTLD applications.
Leibowitz said that the FTC is “not looking that issue [new gTLDs] with respect to Google, we’re looking at that issue with respect to ICANN”.
The FTC’s concerns about the program are not new, but it has not publicly expressed them recently.
In December 2011 the agency said the program could “magnify both the abuse of the domain name system and the corresponding challenges we encounter in tracking down Internet fraudsters.”

ICANN finally coming to London

ICANN is to visit the UK for the first time in its 15-year history, with one of its 2014 public meetings now confirmed for London.
The organization is also planning to host its third meeting in Singapore, the city where its first meeting was held, just three years after its last visit, according to recently passed board resolutions.
Buenes Aires, Argentina has been selected for the third meeting in 2013, following Beijing and Durban, ICANN’s second visit to Argentina after the 2005 Mar Del Plata event.
The final meeting in 2014 will be held somewhere in North America, but the city has yet to be decided.
Fingers crossed for Vegas.