ICANN advised against director salaries

ICANN’s legal staff advised its board of directors against rushing to grant themselves a pay packet, according to documents released today.
At its San Francisco meeting last month, ICANN’s board voted to adopt a package of 27 measures designed to improve the organization’s accountability and transparency.
One of the recommendations, provided by the Accountability and Transparency Review Team in December, asked the board to quickly implement a “compensation scheme” for ICANN’s voting directors.
Other than salaried president Rod Beckstrom, currently only the chairman, Peter Dengate Thrush, is paid for his work on the board.
But briefing documents provided to the board prior to the San Francisco vote, published today (pdf and pdf), reveal that ICANN staff recommended adopting only 26 of the 27 ATRT recommendation.
The original ATRT recommendation #5 reads:

The Board should expeditiously implement the compensation scheme for voting Directors as recommended by the Boston Consulting Group adjusted as necessary to address international payment issues, if any.

And the ICANN staff recommendation to the board reads:

Staff recommends that the Board not implement ATRT Recommendation #5 – a compensation scheme for voting Board Directors – at this time, but give adoption and implementation further consideration as detailed in the staff’s proposed implementation plan

Regardless, the board voted to adopt all 27 ATRT recommendations in San Francisco, including the board compensation plan idea. This was broadly welcomed by the community.
The precise reasoning behind the staff’s recommendation is not clear – the rationale has been redacted from the briefing documents – but director Bruce Tonkin gave a hint during remarks at the open board meeting in San Francisco, saying:

There are legal requirements for how a board could pass a motion to decide to compensate board members, which is one of the recommendations, and then there are obviously budget implications of doing that.
So just the legal steps that need to be followed will take a bit of time. Not years, but will take some months.

The ATRT report was fairly comprehensive, covering everything from how ICANN selects its board to how it interacts with its Governmental Advisory Committee, to what information it publishes on its web site.
The report also gave ICANN deadlines to hit on many recommendations, many of them June 2011.
But it appears from the just-published briefing documents that ICANN intends to miss those deadlines in several cases, due to the complexity of the work involved, by a few months to as much as a year or more.
In other, simpler, cases, ICANN has already met the recommendations. Many of ICANN’s policy-making processes are still due to get a shake-up, but some changes will take longer than expected.

ICE domain seizures enter second phase

The US Immigration & Customs Enforcement agency seems to be consolidating its portfolio of seized domain names by transferring them to its own registrar account.
Many domains ICE recently seized at the registry level under Operation “In Our Sites” have, as of yesterday, started naming the agency as the official registrant in the Whois database.
ICE, part of the Department of Homeland Security, has collected over 100 domains, most of them .coms, as part of the anti-counterfeiting operation it kicked off with gusto last November.
The domains all allegedly either promoted counterfeit physical goods or offered links to bootleg digital content.
At a technical level, ICE originally assumed control of the domains by instructing registries such as VeriSign, the .com operator, to change the authoritative name servers for each domain to seizedservers.com.
All the domains pointed to that server, which is controlled by ICE, resolve to a web server displaying the same image:

(The banner, incidentally, appears to have been updated this month. If clicked, it now sends visitors to this anti-piracy public service announcement hosted at YouTube.)
Until this week, the Whois record associated with each domain continued to list the original registrant – a great many of them apparently Chinese – but ICE now seems to be consolidating its portfolio.
As of yesterday, a sizable chunk — but by no means all — of the seized domains have been transferred to Network Solutions and now name ICE as the registrant in their Whois database records.
Rather than simply commandeering the domains, it appears that ICE now “owns” them too.
But ICE has already allowed one of its seizures to expire. The registration for silkscarf-shop.com expired in March, and it no longer points to seizedservers.com or displays the ICE piracy warning.
The domain is now listed in Redemption Period status, meaning it is starting along the road to ultimately dropping and becoming available for registration again.
Interestingly, most of the newly moved domains appear to have been transferred into NetSol from original registrars based in China, such as HiChina, Xin Net and dns.com.cn.
After consulting with a few people more intimately familiar with the grubby innards of the inter-registrar transfer process than I am, I understand that the names could have been moved without the explicit intervention of either registrar, but that it would not be entirely unprecedented if the transfers had been handled manually under the authority of a court order.
If I find out for sure, I’ll provide an update.

Feds seize billion-dollar poker domains

Five domain names associated with online poker sites have been seized by the FBI as part of an investigation that has also seen 11 people indicted.
The principals of PokerStars, Absolute Poker and Full Tilt Poker, along with third-party “payment processors”, stand accused of engaging in a massive money laundering scheme in order to accept billions of dollars of payments from American gamblers in violation of US laws.
The charges carry possible maximum sentences of between five and 30 years in prison, along with substantial monetary fines. Two men have been arrested, a third is due to be arraigned, and the remainder are currently outside of the US, according to a press release (pdf).
The US Attorney for the Southern District of New York said five domain names have been seized by the FBI in connection with the prosecutions.
It’s not yet clear which domains have been seized.
From where I’m sitting in London, absolutepoker.com already shows an FBI warning banner, but pokerstars.com and fulltiltpoker.com both resolve normally. I may be receiving cached DNS data.
Blogger Elliot Silver, sitting behind a resolver on the other side of the pond, reports that ub.com is among the seized domains.
Unlike previous recent seizures, which were carried out by the US Immigration and Customs Enforcement agency, this time the FBI appears to be the responsible agency.
And this time, these aren’t two-bit file-sharing forums or Chinese knock-off merchandise sites, we’re talking about businesses that are perfectly legal in many jurisdictions, clearing billions in revenue.
But according to US Attorney’s charges, the companies carried out an elaborate plan to cover up the sources of their revenue through third parties and phoney bank accounts.
The companies are even alleged to have made multi-million dollar investments in failing banks in order to get them to turn a blind eye to the illicit gambling activities.
It appears that the FBI went straight to the .com registry, VeriSign, as some of the affected domains appear to be registered through UK-based corporate registrar Com Laude.
If you’re wondering whether this is yet another confirmation that all .com domains are subject to US jurisdiction, this is your takeaway sentence, from Manhattan US Attorney Preet Bharara:

Foreign firms that choose to operate in the United States are not free to flout the laws they don’t like simply because they can’t bear to be parted from their profits.

The suits seek $3 billion in allegedly ill-gotten gains to be returned.

Why ICANN’s CEO did not vote on .xxx

President and CEO Rod Beckstrom has explained his decision to abstain from voting on ICM Registry’s .xxx top-level domain when it came before the ICANN board last month.
As expected, Beckstrom provided substantially the same explanation for his abstention as he did at the Brussels meeting last June – not on the merits of .xxx, but because he had legal concerns.
Specifically, he abstained because he objected to one of the majority findings of an Independent Review Panel, which forced .xxx back to the table last year after ICANN had tried to reject it.
Beckstrom wrote, in a recently published statement (pdf):

while I accept the contribution to ICANN’s accountability and transparency provided by the existence and the use of the independent panel review process, I nonetheless remain concerned about the determination by two of the three panelists that the ICANN board should not use business judgment in the conduct of its affairs.

This refers to the “business judgment rule”, a piece of California law under which courts give deference to the judgment of company directors, unless their decisions were made in bad faith.
If an IRP panel – the last port of appeal for companies upset with ICANN’s decisions – were required to use this rule, it would substantially raise the bar for a successful complaint.
But the panel in the case of ICM Registry versus ICANN (the only such panel to date) decided, by a 2-1 vote, that ICANN’s actions should be “appraised not deferentially but objectively.”
This allowed ICM to win its case by merely showing ICANN had acted outside its bylaws, and not necessarily in bad faith.
The dissenting IRP panelist, Dickran Tevrizian, wrote: “The rejection of the business judgment rule will open the floodgates to increased collateral attacks on the decisions of the ICANN Board of Directors”.
However, the IRP did not specifically rule that ICANN “should not use business judgment” as Beckstrom’s statement suggests, just that the IRP was not obliged to defer to it.
Beckstrom’s statement also gives a shout-out to the Governmental Advisory Committee:

In addition, I note the concerns of the GAC, which while not expressed as a clear decision, was nonetheless directional.

As I previously blogged, ICANN approved the .xxx contract over the objections of some members of the GAC, using the fact that the GAC’s official advice was vague enough to be worked around without explicitly rejecting it.
Beckstrom, incidentally, did not even sign the .xxx contract with ICM, which I believe is a first for an ICANN registry contract. It was instead signed by general counsel John Jeffrey.
(via InternetNews.me)

NAF sees rise in UDRP cases

The National Arbitration Forum saw a steep increase in the number of cybersquatting complaints filed under the Uniform Dispute Resolution Policy last year.
According to a NAF announcement, 2,177 cases were filed in 2010, up 24% on the previous year.
That seems to be roughly in line with the experience of the World Intellectual Property Organization, which recently reported a 28% increase in UDRP complaints to 2,696 last year.
On that basis, it appears that WIPO has ever so slightly widened the market share gap between itself and NAF.
Between 1999 and the end of last year, NAF had handled 15,763 domain disputes, compared to WIPO’s over 20,000.
A basic UDRP filing covering a few domain names with a single panelist presiding costs about $1,500 with both providers, not including lawyers’ fees and other expenses.
With roughly 35,000 complaints filed to date, we can estimate that the revenue from UDRP flowing to WIPO and NAF together has been in the ball park of $50 million in slightly over 11 years.

Go Daddy: let registrars seize domain names

Go Daddy has called for domain name registrars, not registries, to be responsible for seizing domain names associated with criminal activity.
In testimony submitted yesterday to the US House Subcommittee on Intellectual Property, Competition and the Internet, general counsel Christine Jones said that instructing registries to turn off domains can sometimes cause more harm than good.
Registrars, she said, often aid law enforcement with investigations into, for example, child pornography, and that registry interference can be dangerous.
In her prepared remarks (pdf), Jones wrote:

The registry in many instances has no knowledge of these highly confidential and sensitive matters, and we have experienced several occasions in which the sudden disabling of a domain name by a registry disrupted weeks or months of work investigating serious criminal activity by the registrant.
We would like to see future government and private industry efforts focused on naming the registrar as the primary contact for courts and law enforcement regarding all criminal and civil matters relating to domain names.

Also testifying was John Morton of US Immigration and Customs Enforcement, the agency responsible for recent controversial domain name seizures under Operation In Our Sites.
The ICE operation has so far bypassed registrars, going directly to registry operators such as VeriSign. This is arguably more efficient, and avoids jurisdictional problems associated with non-US registrars.
Other registrars have previously echoed Jones’ remarks. Registrars have the relationship with the customer, after all. When a domain is seized by a registry, they have to deal with the fallout.
As we saw with the first phase of the ICE seizures last year, the fact that the registrar had no knowledge of the matter led to a misunderstanding and ICANN being blamed in several media reports.
But yesterday’s Congressional hearing, which aimed to gather information for legislation expected to replace the Combatting Online Infringement and Counterfeiting Act (COICA), spent very little time discussing domains.
At one point, Rep. John Conyers took Morton to task for ICE’s accidental seizure of over 80,000 third-level domains as part of a child porn sting.
Jones was also quizzed about the difference between filtering domains at the ISP level (which she said was unworkable and potentially dangerous) and blocking them at the registry-registrar level.
But Google was in the room, in the form of general counsel Kent Walker, and he took most of the flak, with Congressmen lining up to grill him over Google’s apparently happiness to connect users to bootleg digital content and counterfeit physical goods.

Man writes to ICANN with Whois look-up

A second person has asked ICANN for “a list of all registered domains”, using the organization’s freedom of information policy.
Jorge Sabate made a Documentary Information Disclosure Policy filing (pdf) last December, published this week, in which he made the request. He added:

If you are unable to provide the whole information, i would like to know the dste [date] was created the domain name christiansmith.com

That’s right. Sabate’s method of doing a Whois look-up on a single domain name appears to involve asking ICANN for a database of all 200 million registered domain names.
He’s not the first person to use the DIDP to make such a strange request. One Barry Carter asked for the same list last September, and was similarly unsuccessful.
No such database exists, of course, so ICANN had to rebuff both men.
But to answer your question, Mr Sabate: christiansmith.com was originally registered November 13, 1998.

ICANN sponsors line up for Singapore

ICANN’s web page for its Singapore meeting has gone live, and the organization looks to have already attracted almost $200,000 in sponsorship fees.
The meeting, which officially begins June 19 at the Raffles City Convention Center, is widely expected to be the meeting when ICANN finally signs off on its Applicant Guidebook for new top-level domains.
As such, I expect it’s going to see a fair bit of sponsor interest.
Prices have been reduced somewhat since the San Francisco meet last month, due to some complaints from domain name companies, but there are still some big-ticket opportunities, including a $250,000 Diamond deal and two $150,000 Platinum Elite deals.
So far, five sponsors have already signed up, the biggest spenders being Neustar and the Public Interest Registry, which have both opted for $75,000 Platinum-tier arrangements.
Don’t expect any lengthy security briefings this time around – Singapore is one of the safest cities in the world, due in part to its harsh judicial system. You’re more likely to get beaten up under court order than by a mugger.
The weather: hot and wet.
The host of the meeting, which is ICANN’s 41st, is the Infocomm Development Authority of Singapore.

New UDRP guidelines reflect unpredictability

Cybersquatting cases filed under the Uniform Dispute Resolution Policy have become less predictable, judging from complex new guidelines for adjudication panels.
The World Intellectual Property Organization has just published WIPO Overview 2.0, which sets out over 10 years of UDRP precedent for panelists to consider when deciding future cases.
The document is a must-read for domain investors and trademark holders.
Updated for the first time since 2005, it contains new sections covering developments such as registrar parking, automatically generated advertising and proxy/privacy services.
The Overview has quadrupled in length, from 5,000 to 20,000 words. With that, has come increased complexity. WIPO notes:

While predictability remains a key element of dispute resolution systems, neither this WIPO Overview nor prior panel decisions are binding on panelists, who will make their judgments in the particular circumstances of each individual proceeding.

The document reflects decisions already made, rather than creating new law, but as such it also reflects the tilting balance of the UDRP in favor of complainants.
For example, while the 2005 guidelines presented majority and minority views on whether [trademark]sucks.com domains meet the “confusing similarity” criterion, Overview 2.0 presents only a “consensus view” that they do, suggesting that it is now settled law.
On whether parking a domain with PPC ads meets the “legitimate interests” criterion, the guidelines refer to precedent saying that the ads must not capitalize on a trademark:

As an example of such permissible use, where domain names consisting of dictionary or common words or phrases support posted PPC links genuinely related to the generic meaning of the domain name at issue, this may be permissible and indeed consistent with recognized sources of rights or legitimate interests under the UDRP, provided there is no capitalization on trademark value

Supporting this view, the Overview states that “bad faith” can be shown even if the domain owner does not control the content of their parked pages and makes no money from the ads:

Panels have found that a domain name registrant will normally be deemed responsible for content appearing on a website at its domain name, even if such registrant may not be exercising direct control over such content – for example, in the case of advertising links appearing on an “automatically” generated basis… It may not be necessary for the registrant itself to have profited directly under such arrangement

There is a defense to this, if the respondent can show they had no knowledge of the complainant’s trademark and made no effort to control or profit from the ads.
Because the UDRP calls for “registration and use in bad faith”, the guidelines also ask: “Can bad faith be found if the disputed domain name was registered before the trademark was registered or before unregistered trademark rights were acquired?”
The original guidelines said no, with a carve-out for cases where the squatter anticipated, for example, a future corporate merger (microsoftgoogle.com) or product release (ipad4.com).
The new guidelines are a lot less clear, calling it a “developing area of UDRP jurisprudence”. The document lists several cases where panelists have chosen to essentially set aside the registration date and concentrate instead just on bad faith usage.
The question of whether a renewed domain counts as a new registration is also addressed, and also has a couple of exceptions to give panelists more flexibility in the decisions.
The Overview covers a lot of ground – 46 bullet points compared to 26 in the first version – and will no doubt prove invaluable reading for people filing or fighting UDRP cases.
The guidelines are not of course set in stone. The 2005 version read:

The UDRP does not operate on a strict doctrine of precedent. However, panels consider it desirable that their decisions are consistent with prior panel decisions dealing with similar fact situations. This ensures that the UDRP system operates in a fair, effective and predictable manner for all parties

But the new version adds a caveat to the end of the sentence: “while responding to the continuing evolution of the domain name system.”

UDRP filings hit new record

The World Intellectual Property Organization handled more cybersquatting cases in 2010 than in any other year to date, according to just-released statistics.
WIPO said today it received 2,696 UDRP complaints last year, up 28% over 2009’s 2,107 cases.
But the number of domains covered by these cases actually slipped a little, from 4,688 to 4,370, according to WIPO.
Since the policy was created in 1999, WIPO says it has decided over 20,000 UDRP complaints, covering over 35,000 domain names in 65 TLDs.
It may sound like a lot, but it’s actually a vanishingly small percentage of the 205.3 million domain names that are registered across all TLDs today.