Anti-terror rule dropped from new TLD guidebook

ICANN will cut references to terrorism from its Draft Applicant Guidebook for new top-level domains, after criticism from some Arab stakeholders.
The ICANN board of directors decided on Saturday at its retreat in Trondheim that it will revise its policy of doing background checks on new TLD applicants:

The background check should be clarified to provide detail and specificity in response to comment. The specific reference to terrorism will be removed (and the background check criteria will be revised).

The reference to “terrorism” first showed up in DAGv4, the latest draft. It caused a bit of a stir, with at least two Arab community members harshly criticizing ICANN for its inclusion.
Khaled Fattal of the Multilingual Internet Group told ICANN it would “be seen by millions of Muslims and Arabs as racist, prejudicial and profiling” while Abdulaziz Al-Zoman of SaudiNIC observed that’s it’s not globally accepted “who is a terrorist and who is a freedom fighter”.
It appears that their complaints have been heard.

US seeks powers to shut down domains

COICA is the new acronym we’ll all soon be talking about — it’s the law that could give the US its very own Great Firewall of China.
A bipartisan group of US senators today introduced the Combating Online Infringement and Counterfeits Act, legislation that would enable the government to quickly turn off domain names involved in piracy.
The bill would enable the Department of Justice to seek a court order against a domain name it believes is involved in piracy or selling counterfeit goods.
If the sponsoring registrar or registry is located in the US, the order would force it to stop the domain from resolving and lock it down.
The likely effect of this would be to force piracy sites out of .com and into offshore registrars. But the bill has thought about that too.
If it’s a non-US registrar and registry, injunctions could be sought to block the domain at the ISP level.
That’s right folks – if this bill passes, the US would get its very own Chinese-style national firewall.
The bill would allow the domain registrant to petition the court to lift the order.
“By cracking down on online piracy of television shows and movies, we hope this bill will encourage copyright owners to develop innovative and competitive new choices for consumers to watch video over the internet,” said Sen. Herb Kohl.
Which is about as disingenuous a statement as it gets, when you think about it, given that it essentially eliminates a major incentive for business model innovation.

Man asks ICANN for “list of all domains”

A man has used ICANN’s freedom of information procedure to ask for “a list of all registered domains”, forcing the organization to politely decline.
Barry Carter wrote (pdf):

Per http://www.icann.org/en/transparency/didp-en.htm please provide me a list of all registered domains (including all public registrant information). If you are unable to provide this information, please let me know why.

As you might imagine, with the number of registered domains in the gTLDs and ccTLDs numbering in the hundreds of millions, that’s what you might call a Big Ask.
ICANN’s response (pdf) patiently explains that it doesn’t have such a list and that assembling one would constitute an unreasonable request under its Documentary Information Disclosure Policy.
Still, worth a shot, eh?

RapidShare’s UDRP campaign seizes 44 domains

The final results are in. RapidShare’s recent campaign to reclaim its brand from the pirates using the UDRP appears to be over, and it had about a 90% success rate.
Over the last few months the file-hosting company filed 46 UDRP complaints, covering a total of 49 domains, and it managed to win all but five of them.
The vast majority of the contested domains, 43 in total, contained the word “rapidshare”, which RapidShare has trademarked.
The company won all of them with one notable exception: rapidshare.net. The panelist in that case found that the domain had been registered before RapidShare had acquired its rights.
The remaining six domains just contained the term “rapid”. In these cases, the company had a harder time proving its case and therefore had mixed results.
It lost its complaints over rapiddownload.net, rapidbay.net, rapid4me.com and rapid.org largely on the grounds that “rapid” is not sufficiently confusingly similar to “rapidshare”.
However, it managed to win rapidpiracy.com on the dubious basis that “piracy” and “share” are conceptually similar, as I blogged earlier this month.
It also managed to secure rapidpedia.com, on the even more dubious (and barely discussed) grounds that the domain “replicates the first and dominant element of the trademark”.
All of the complaints were handled by WIPO.

One in five domains use a privacy service

As many as 20 million domain names are registered via Whois privacy or proxy services, an ICANN-sponsored study has found.
The study, conducted by the National Opinion Research Center, looked at a sample of 2,400 domains registered in .com, .org, .net, .info and .biz.
It found that 18% of these names used a privacy/proxy service to hide the contact details of the true registrant. Its margin of error means the actual number could be between 16% and 20%.
Extrapolating to the universe of 101 million domains registered in these five TLDs at the time the sample was taken in January 2009, NORC estimates that between 17.7 million and 18.4 million domains used a proxy.
NORC also estimates that the current number of private registrations could be “substantially higher” today, due to increased market traction for such services.

This, combined with the growth in registration numbers to over 115 million domain names as of January 2010, means that the actual number of privacy/proxy registrations among the top five gTLDs is likely to be substantially higher than 18 million.

When you consider that some privacy services charge as much as $10 a year for private registrations, that adds up to quite a healthy market.

Breaking: ICANN to name Atallah new COO

ICANN has appointed technology industry executive Akram Atallah to the position of chief operating officer, according to a reliable source.
Atallah previously held the same position at CoreObjects for a year, and before that was a vice president at semiconductor firm Conexant, according to his LinkedIn profile.
His well-regarded predecessor, Doug Brent, stepped down in April citing family reasons.
More updates when I have them.
UPDATE: ICANN has now officially announced Atallah’s appointment.
The press release (pdf) contains this quote from CEO Rod Beckstrom:

This is a perfect fit, not only because Akram brings to ICANN an amazing understanding of the online and high tech worlds, but because he also brings an intuitive grasp of our unique global role in the Internet ecosystem. The fact that he is fluent in French and Arabic will add to our ability to reach out more effectively to the international community.

The release also notes that Atallah has a Masters degree in electrical engineering from the University of Colorado.
He will start his work at ICANN September 20.

RapidShare loses rapid.org case

RapidShare has failed to grab the domain name rapid.org with a UDRP complaint.
The WIPO decision, sent to me this morning by the current registrant, found both an absence of confusing similarity and a lack of bad faith.
Panelist Matthew Harris recently handed rapidpiracy.com to RapidShare on the grounds that the domain was conceptually similar to the RapidShare trademark.
He found no such similarity on this occasion.

Insofar as there is similarity, it resides in the common use of the word “rapid” alone. On the evidence before the Panel, this is insufficient. The Complainants have failed to satisfy the requirements of paragraph 4(a)(i) of the Policy.

Rapid.org, prior to the filing of the complaint, was a web forum devoted to sharing download links for pirated movies, music and so on. RapidShare used this fact to try to prove bad faith.
But the panelist focused instead on registration dates, observing that the domain was first registered in September 2003, years before RapidShare acquired its trademark rights.

The Complainants do not point to a trade mark registration that pre-dates September 2003. In the circumstances, the Complainants’ apparent assertion that its trade mark rights pre-date the Domain Name registration appears to be simply false.

RapidShare appears to have missed a trick here.
Harris wrote that there was no evidence before him that the domain was first registered in 2001, as the registrant had claimed, and that there was no evidence that the domain had changed hands since then.
A quick search on DomainTools shows that rapid.org was indeed first registered in 2001, and that the current registrant probably only acquired it some time in 2009.
Why Harris was not given this information is probably due to RapidShare’s oversight, but it could have led to a finding of bad faith (not that this would have changed the ultimate outcome).
Amusingly, the decision also refers to the Russian registrant, Ilya Efimov, as a woman throughout. He assures me that, like all Ilya’s, he’s male.

ICANN replaces three directors

ICANN has named Cherine Chalaby, Bertrand de La Chapelle and Erika Mann as the new members of its board of directors.
The three will replace current vice-chair Dennis Jennings, along with Harald Tveit Alvestrand and Jean-Jacques Subrenat, whose terms expire next month.
Under ICANN bylaws, Jennings, Alvestrand and Subrenat could have served two additional three-year terms, but I do not know whether any of them applied to do so.
The ICANN Nominating Committee, which was responsible for selecting the new directors, highlighted the fact that the board is getting its first Arabic-speaking member.
That’s Egyptian Cherine Chalaby. I must confess I’d never heard of him either. Google tells me he has a tech/consulting background, and works for a UK-based investment bank.
ICANN has had a couple of minor run-ins with Arabic members of the community recently, such as over the the delegation of Arabic-script ccTLDs, which came in for criticism.
There was also a small flare-up over the random inclusion of an anti-terrorism clause in the new gTLD application process, which led to (in my view overblown) accusations of insensitivity.
NomCom chair Wolfgang Kleinwaechter said the appointment of Chalaby “underlines the importance of further internationalization of ICANN.”
The appointment of Bertrand de La Chapelle, who becomes the first second person to leave the ICANN Governmental Advisory Committee to join the board, is also particularly interesting.
De La Chapelle is France’s GAC representative, and one of the most vocal members of the committee.
In my view, he’s currently the GAC rep doing the most to build bridges with the rest of the community over the tricky “morality and public order” policy process. The board’s gain is the GAC’s loss.
Clearly serious about his new role, de La Chapelle said he will quit his job as “Thematic Ambassador and Special Envoy for the Information Society in the French Foreign and European Affairs Ministry” and look for other sources of funding.
German Erika Mann joins the board after a 15-year stint as a Member of the European Parliament, sitting in the Socialist group. She speaks four languages and once ran her own IT consultancy.
According to her CV, she was an expert in ICANN matters between 1985 and 1994, which is almost supernaturally impressive.

ICANN surveys – Fail or Win?

A couple of times this year, ICANN has supplemented its regular email public comment periods with quicker, easier point-and-click surveys.
I assume they were designed to more clearly communicate the issues and increase response rates. In some respects they seem to have been a success, in others, not so much.
First, the Win.
Of the two comment periods I’ve looked at – on the Post-Expiration Domain Name Recovery policy and ICANN’s public meetings strategy – response rates were definitely up on what you would normally expect to see.
The PEDNR report solicited 10 regular email comments and a whopping 412 survey responses. The meetings survey had three emailed comments and 297 survey responses.
Judging from the PEDNR summary and analysis report, which breaks down the actual responses, the majority of respondents had something of value to say for most of the questions posed.
(It also reveals that I was the first person to take the survey. Take that, Kirikos!)
The majority of responses came from Germanic-sounding names, so I’m guessing there was some outreach in a German-language forum somewhere. Due to this fact, some respondents confessed to not fully understanding some of the English-only questions.
Now, the Fail.
The survey conducted to gauge feeling on ICANN policy for deciding meeting locations has produced some incomprehensible data. Take this, for example:

Considerations in choosing a host city
246 voters replied:
591 or 40% felt that Facilities were most important
399 or 27% felt that Convenience of meeting location and cost for both ICANN and attendees most important
495 or 33% felt that Safety and Security were most important

So… 246 people voted, but 1,485 votes are tallied?
A few more questions had similar anomalies in their results, rendering the data pretty much worthless. It’s reproduced by ICANN regardless, and without comment.
I suspect the survey provider, BigPulse, may have some of the blame, although it can’t have helped that the ICANN survey itself was reportedly highly confusing.
The PEDNR survey was conducted using Zoomerang. I do not recall having any trouble using it.
On balance I’d say that, teething troubles aside, surveys make a nice complement to public comment periods, provided that, due to the risk of “framing”, they do not carry too much weight.

WIPO suggests RapidShare might own “rapid” after all

RapidShare has won a UDRP complaint against the owner of rapidpiracy.com, after the WIPO panelist apparently went against recent precedent.
As I’ve been reporting for a while now, RapidShare has been trying to clean up its brand by filing UDRP complaints on domains that contain its trademark.
In pretty much all cases the offending domain hosts a web site containing links to copyrighted material hosted on rapidshare.com and other file-sharing services.
In most cases, the domain also includes the word “rapidshare”, which the company has trademarked.
In July, a WIPO panelist rejected RapidShare’s claim on rapidbay.net, concluding that the words “rapidbay” and “rapidshare” were not sufficiently alike to warrant an “identical or confusingly similar” finding.
Now, a different WIPO panelist has come to the opposite conclusion, finding for the complainant in the case of rapidpiracy.com; “rapidshare” and “rapidpiracy” are apparently confusingly similar.
Acknowledging the precedent could have been “fatal” to RapidShare’s case, Matthew Harris drew a distinction, arguing that “piracy” and “share” are conceptually similar, whereas “bay” was not.

it is not fanciful to suggest the term “rapidpiracy” can be read as involving a conceptual allusion to the Complainants’ mark (perhaps suggesting an illegal version of the Complainants’ services).

He backed this argument by pointing to the fact that there were three references to RapidShare on the first page of rapidpiracy.com, before the complaint was filed.

In short, an obvious inference from this content is that the Respondent intended the Domain Name to be understood as alluding to the Complainants’ mark.

Harris noted that WIPO guidelines say that panelists should not take into account the contents of a web site in order to determine whether the domain name is similar to a trademark, but he had an excuse.

The test is not of similarity between businesses or websites. It involves a comparison between mark and domain name only. However, that does not mean that the content of the website cannot in some cases provide a pointer as to how Internet users will perceive a domain name that in turn might inform the relevant comparison.

(Domain Name Wire has previously noted that Harris has a record of “questionable” decisions.)
He concluded:

So do these factors provide sufficient similarity in this case? Bearing in mind that this is a low threshold test and in the absence of argument to the contrary, the Panel ultimately concludes that the Complainants have satisfied that test. The Complainants have only just crossed the threshold and in doing so they were given a helping hand by the Respondent; but they have crossed it nevertheless.

In my humble opinion there’s no doubt that rapidpiracy.com were a bunch of scoundrels, but I can’t help but wonder whether UDRP was the right place to address the problem.
Yet the precedent has been set; RapidShare does have some claim on the word “rapid” under UDRP, despite its lack of a trademark.
What this means for the UDRP case against rapid.org, which is also in the business of helping people share copyrighted material, remains to be seen. I’m told that case has been assigned the same panelist.