Final gTLD Applicant Guidebook expected this week

It’s been over a month since ICANN approved its new top-level domains program, but we still don’t have a final-final version of the Applicant Guidebook.
The resolution approving the program ICANN passed in Singapore called for a number of amendments to be made to the 352-page tome.
The current draft was published May 30, and so far ICANN has not said when the next version – likely to be the version used in the first round of applications – will be released.
I inquired, and now word has come from on high that ICANN’s new gTLD team hopes to have the English version of the new Guidebook published by the end of July – this coming weekend.
The Singapore resolution called for changes to the government Early Warning and Advice processes, added protection for Olympic and Red Cross trademarks, and a modification of the Uniform Rapid Suspension cybersquatting policy.
One has to wonder if the changes outlined in the resolution are the only changes that we’ll see – a month seems like a long time to make just a few fairly minor edits.
The resolution said the board “authorizes staff to make further updates and changes to the Applicant Guidebook as necessary and appropriate”.
The first round of new gTLD applications is set to open January 12.

ICANN fights government gTLD power grab

ICANN has opposed a US move to grant governments veto power over controversial new top-level domain applications.
Cutting to the very heart of Obama administration internet governance policy, ICANN has told the National Telecommunications and Information Administration that its recent proposals would “undermine the very principle of the multi-stakeholder model”.
The stern words came in ICANN’s response to the NTIA’s publication of revisions to the IANA contract, the contract that allows ICANN to retain its powers over the domain name system root.
The NTIA’s Further Notice Of Inquiry contained proposed amendments to the contract, including this:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

This was widely interpreted as a US attempt to avoid a repeat of the .xxx scandal, when ICANN approved the porn gTLD despite the unease voiced by its Governmental Advisory Committee.
As I noted in June, it sounds a lot like code for “if the GAC objects, you must reject”, which runs the risk of granting veto powers to the GAC’s already opaque consensus-making process.
In his response to the FNOI (pdf), ICANN chief Rod Beckstrom says that the NTIA’s proposal would “replace” the “intensive multi-stakeholder deliberation” that created the newly approved Applicant Guidebook.
He also pointed out the logical inconsistency of asking IANA to remain policy-neutral in one part of the proposed contract, and asking it to make serious policy decisions in another:

The IANA functions contract should not be used to rewrite the policy and implementation process adopted through the bottom-up decision-making process. Not only would this undermine the very principle of the multi-stakeholder model, it would be inconsistent with the objective of more clearly distinguishing policy development from operational implementation by the IANA functions operator.

NTIA head Larry Strickling has been pounding the “multistakeholderism” drum loudly of late, most recently in a speech in Washington and in an interview with Kieren McCarthy of .nxt.
In the .nxt interview, Strickling was quite clear that he believes ICANN should give extra authority to governments when it comes to approving controversial strings.
The NTIA concern – shared by other government entities including the European Commission – is that controversial strings could lead to national blocking and potentially internet fragmentation.
While Strickling declined to comment on the specific provisions of the IANA contract, he did tell .nxt:

If the GAC as a consensus view can’t support a string then my view is that the ICANN Board should not approve the string as to do so in effect legitimizes or sanctions that governments should be blocking at the root zone level. And I think that is bad for the Internet.
Where you’re dealing with sensitive strings, where you’ve engaged the sovereignty of nations, I think it is appropriate to tip the hat a little bit more to governments and listen to what they say. On technical issues it wouldn’t be appropriate but on this particular one, you’ve got to listen a little bit more to governments.

He also indicated that the US would not necessarily stand up for its principles if confronted by substantial objections to a string from other governments:

So we would be influenced – I can’t say it would be dispositive – if a large number of countries have a problem with a particular string, even if it was one that might not be objectionable to the United States government.
And that is out of interest of protecting the Internet’s root from widespread blocking at the top-level by lots of governments.

Does this mean that the US could agree to a consensus GAC objection to a .gay gTLD? A .porn? A .freespeech? It certainly sounds like it.

Olympics make more new gTLD demands

The International Olympic Committee, fresh from its big win at ICANN Singapore, is pushing for more special protections in the new top-level domains program.
ICANN only approved the new gTLD program last month with the proviso that Olympic and Red Cross strings – .redcross and .olympic for example – would be banned as gTLDs in the first round.
The decision was a pretty obvious piece of political bone-throwing to the Governmental Advisory Committee, which had backed the IOC’s cause.
Now the IOC wants to ensure ICANN will ban .olympic and .olympiad in eight additional languages, including four non-Latin scripts, as well as “confusingly similar” strings such as .olympics.
I expect ICANN will probably grant this concession, even though the idea that somebody other than the IOC could successfully apply for .olympics under existing rules has always been ludicrous.
The IOC has probably already spent just as much money lobbying for these changes as it would have cost to file a slam-dunk legal rights objection, as already allowed by the Guidebook.
And that would only have been necessary, of course, in the vanishingly improbable scenario where somebody was stupid enough to pay $185,000 to apply for .olympics in the first place.
But the IOC now also wants all of its brands banned at the second level in all new gTLDs. This seems like a bigger ask, given that ICANN resolved to protect the Olympic marks “for the top level only”.
In a July 1 letter to ICANN (pdf), published today, an IOC lawyer includes suggested text for the Applicant Guidebook, to be included in the default registry agreement, stating:

In recognition of legislative and treaty protection for the Olympic designations, the labels “OLYMPIC” and “OLYMPIAD” shall be initially reserved at the second level. The reservation of an Olympic designation label string shall be released to the extent Registry Operator reaches agreement with the International Olympic Committee.

This would give the Olympic brand as much protection as country names at the second level.
The problem with this, of course, is that it sets the precedent for a specially protected marks list, which ICANN has resisted and which the GAC specifically has not asked for.
It’s a problem ICANN has arguably brought on itself, of course, given that it already specially protects “icann”, “iana” and a number of other strings on spurious technical stability grounds.

Lego overtakes Microsoft in cybersquatting cases

Lego has now filed more complaints against cybersquatters than Microsoft.
The maker of the popular building block toys has filed 236 cases using the Uniform Dispute Resolution Policy since 2006, the vast majority of them since July 2009.
That’s one more than Microsoft, about 50 more than Google and twice as many as Viagra maker Pfizer.
Lego has been particularly aggressive recently. As I’ve previously blogged, Lego lately files a UDRP complaint on average every three days.
The company is usually represented in these cases by Melbourne IT Digital Brand Services, the online trademark enforcement arm of the Aussie registrar.
The 236 cases equates to over $350,000 in WIPO fees alone. I’d be surprised if Lego has spent less than $1 million on UDRP cases over the last few years.
Lego has annual revenue of about $1.8 billion.
It has never lost a case. The company either wins the dispute, or the complaint is terminated before a finding is made.
It’s picked up some oddities along the way, notably including legogiraffepenis.com and legoporn.com.
Yet Lego does not appear to have the most UDRP cases under its belt. I believe that honor may go to AOL, which has filed at least 277 cases over the last decade.

How Protect IP will get you hacked

The collection of DNS experts opposing the Protect IP Act today held a press conference to outline exactly why the proposed US piracy protection legislation is dangerous.
Protect IP, currently making its may through Congress, would force ISPs to intercept and redirect domain name look-ups for proscribed piracy sites.
It’s the latest in a series of attempts by the IP lobby to push through legislation aimed at curbing the widespread bootlegging of digital content such as music and movies.
But ICANN chair Steve Crocker, DNS uber-hacker Dan Kaminsky, David Dagon of Georgia Tech, VeriSign’s Danny McPherson and BIND supremo Paul Vixie all think the Act will have unintended and dangerous consequences.
They published a white paper explaining their concerns in May, which I wrote about here, and today ramped up the campaign by talking to reporters in Washington, DC.
Here’s the problem as they see it:
Today, the vast majority of internet users take the default DNS service from their ISP. Usually, the servers are configured automatically when you’re installing the ISP’s software.
Many users are also aware of alternative DNS providers such as Google and OpenDNS. Whatever you think of these services, you can be pretty confident they’re not out to steal your identity.
What Crocker et al are worried about is that content pirates will set up services similar to OpenDNS in order to enable users to visit domains that are blocked by Protect IP in their country.
Users can configure such a service in just 30 seconds, with a single click, the experts said. If they want access to the latest movies and music, they may do so without considering the consequences.
But if you sign up to use a DNS server provided by a bunch of movie pirates, you don’t necessarily have the same reassurances you have with OpenDNS or Google.
You’re basically signing up to pass all your domain name look-up data to proven rogues, what Kaminsky referred to during the press conference as “unambiguously bad guys”.
These bad guys may well direct you to the correct server for the Pirate Bay, but they may also hand you over to a spoof web site when you try to visit your bank.
You’ll think you’re looking at your bank’s site, and your computer will think it got a genuine IP address in response to its DNS query, but you’re really handing your login credentials to a crook.
DNS blocking already takes place with respect to content such as child pornography, of course, but it has not to date created a huge reaction with millions of users taking their DNS overseas.
“The scale of the reaction is what we fear,” Kaminsky said. Vixie added: “To the extent that the content is extremely popular the bypass mechanisms will also be popular.”
The measures proposed by Protect IP would also break DNSSEC, but that’s still pretty much pie-in-the-sky stuff, so the press conference did not spend much time focusing on that.

Victoria’s Secret seizes swimsuit domain, again

The lingerie retailer Victoria’s Secret has won a cybersquatting complaint over the domain name victoriasecretswimsuit.com for the second time in as many years.
Judging by the Whois history, it appears that the company lost the domain following the demise of rogue registrar Lead Networks, which lost its accreditation last year.
Victoria’s Secret first secured the domain with an easily won UDRP complaint in May 2009.
An attorney from its outside law firm was subsequently listed as the admin contact, but the registrar of record remained the same – the Indian outfit Lead Networks.
At some time between August and October last year, the Whois contact changed to the current registrant, who’s hiding behind a privacy service.
Probably not coincidentally, that was about the same time as ICANN, having terminated Lead Networks’ accreditation, bulk-transferred all of its domains to Answerable.com.
Lead Networks was placed into receivership in March 2010 following a cybersquatting lawsuit filed by Verizon.
Answerable.com, a Directi business also based in India, was the registrar’s designated successor under ICANN’s policies. It has subsequently changed its name to BigRock.com.
The latest UDRP decision does not explain how Victoria’s Secret managed to lose its registration, but I’d speculate the inter-registrar transfer may have had something to do with it.
When a registrar loses its accreditation the names are transferred to a new registrar but the term of the registration is not extended. If a registrant ignores or does not receive the notifications sent by the gaining registar, they may find they lose their domains.

Buy a .com in England, go to jail in America?

People who register .com or .net domain names to conduct illegal activity risk extradition to the United States because the domains are managed by an American company.
That’s the startling line reportedly coming from the Immigration and Customs Enforcement agency, which is trying to have the British operator of TVShack.net shipped out to stand trial in the US.
According to reports, 22-year-old student Richard O’Dwyer is fighting extradition to face charges of criminal copyright infringement.
ICE assistant deputy director Erik Barnett told The Guardian that any overseas web site using a .com or .net address to spread pirated material is a legitimate target for prosecution in the States.
The agency has already started shutting down .com and .net sites by seizing their domains, even if the sites in question had been found legal in their own overseas jurisdictions.
It does so by serving a court order to VeriSign, the registry manager, which is based in Virginia. The company is of course obliged to obey the order.
TVShack.net provided links to bootleg movies and TV shows, rather than hosting the content itself. It appears to be a matter of some confusion in the UK whether that behavior is actually illegal or not.
The site reportedly was hosted outside the US, and O’Dwyer never visited the US. The only link was the domain name.
I’m British, but DI is a .com, so I’d like to exercise my (presumed conferred) First Amendment rights to call this scenario utterly insane.
The issue of legal jurisdiction, incidentally, is one that potential new gTLD applicants need to keep in mind when selecting a back-end registry services provider.
Most incumbent providers are based in the US, and while we’ve seen plenty of upstarts emerge in Europe, Asia and Australia, some of those nations sometimes have pretty crazy laws too.

“Super Lawyers” not famous enough to win gripe site UDRP fights

Three lawyers have failed to win cybersquatting complaints against a blogger who registered domains matching their personal names in order to criticize them.
Gregg Mashberg, Allen Fagin and Joseph Leccese, all attorneys with the international law firm Proskauer Rose, have lost three separate UDRP complaints recently.
Self-professed “investigative blogger” Crystal Cox registered josephleccese.com, allenfagin.com and greggmashberg.com last October, in order to publish a handful of unreadable and potentially defamatory blog posts alleging various forms of criminality.
The three men do not hold registered trademarks matching their names, so were forced to rely upon various awards they have won and media appearances they have made to show common law rights.
All three have apparently been named “Super Lawyers” by something called New York Super Lawyers, for example.
But the three-person WIPO panel which heard all three cases found, in virtually identical decisions, that the lawyers had failed to acquire common law trademark rights to their names.
The decisions read:

The record before the Panel suggests that Complainant is a highly respected, prominent lawyer who is a partner with a major law firm. There is insufficient evidence here that Complainant markets or provides services independently of the Proskauer law firm. Rather, it appears that the Proskauer firm is the platform on which Complainant provides his legal services.

It’s not unusual for a celebrity or public figure to win a UDRP complaint on the basis of their fame, but it appears in this case that the complainants were just not famous enough.

DirecTV wins first-ever .so UDRP

The recently relaunched .so top-level domain has seen its first UDRP case. DirecTV, the American satellite TV provider, won its complaint over the domain directv.so.
As you might imagine, it was found by WIPO to be a slam-dunk case of cybersquatting, with the respondent not even bothering to respond.
The domain was registered April 1, the first day .SO Registry opened its doors to general availability.
The registrant merely parked the domain with his registrar, which is enough nowadays to show commercial use and thus bad faith.
It will be interesting to see how badly .so is cybersquatted. It was not a particularly high-profile launch, and it lacks the attractiveness of, say, .co, so I expect we won’t see a great many UDRP cases filed.
.SO Registry, which has GMO Registry as its back-end provider, had pretty much the same trademark protection mechanisms built-in as .co, and used some of the same counsel to create them.
.so is the ccTLD for Somalia.

Beckstrom gets his bonus again

ICANN president and CEO Rod Beckstrom has been awarded a performance-related bonus for the 12-month period ending today, it has emerged.
The undisclosed amount was approved by the ICANN board of directors during an unannounced meeting last Saturday.
As it is classed as a personal personnel matter, the portion of his “at risk component” approved was not revealed, but it is known that Beckstrom’s annual bonus is capped at $195,000.
His base salary is $750,000.
It’s the second consecutive year that he has received some part of his bonus. For the year ended June 30, 2010, the board voted it through in December.
As Beckstrom enters the third year of his three-year contract, it’s understood that he has already been making overtures to the board to extend his tenure for a second term.