New UDRP provider headed by “ace cyber lawyer”

A new Indian group appears to have applied to become ICANN’s fifth approved UDRP provider.
The New Delhi-based Indian Technology Mediation & Arbitration Center is headed by ICANN veteran Pavan Duggal, who describes himself as “India’s ace cyber lawyer”.
ITMAC has 18 wannabe panelists listed on its web site, some of whom are said to have previously mediated domain name disputes for the World Intellectual Property Organization and Asian Domain Name Dispute Resolution Centre.
The outfit says it will be able to mediate disputes in a dozen or so Indian languages, as well as English, and would be able to handle internationalized domain names.
The base price for a single-domain, single-panelist case would be INR 106,000, roughly $2,279 at today’s exchange rates.
That’s actually almost quite a lot more expensive than WIPO, say, which charges $1,500 for an equivalent service. Quite surprising really – one lakh goes a lot further in India than in the US.
ICANN’s board of directors has the item “Receipt and Posting for Public Comment of the Application to be a New UDRP Provider” on the agenda for its meeting next Thursday.
(Via Managing Internet IP)

Stalemate reached on new TLD ownership rules

An ICANN working group tasked with deciding whether domain name registrars should be able to apply to run new top-level domains has failed to reach a consensus.
For the last several months, the Vertical Integration working group has been debating, in essence, the competitive ground rules of the new TLD market, addressing questions such as:

• Should existing ICANN registrars be allowed to run new TLD registries?
• Should new TLD registries be allowed to own and control ICANN registrars?
• Should new TLD registries be allowed to sell domains directly to end users?
• What if an approved registry can’t find a decent registrar willing to sell domains in its TLD?
• Should “.brand” TLDs be forced to sell via ICANN accredited registrars?
• Should “registry service providers” be subject to the same restrictions as “registries”?
• Where’s the harm in allowing cross-ownership and vertical integration?

It’s an extraordinarily complex set of questions, so it’s perhaps not surprising that the working group, which comprised a whopping 75 people, has managed to reach agreement on very few answers.
Its initial report, described as a “snapshot” and subject to change, states:

It is impossible to know or completely understand all potential business models that may be represented by new gTLD applicants. That fact has been an obstacle to finding consensus on policy that defines clear, bright line rules for allowing vertical integration and a compliance framework to support it

Having lurked on the WG’s interactions for a few months, I should note that this is possibly the understatement of the year. However, the WG does draw four conclusions.

1. Certain new gTLDs likely to be applied for in the first round will be unnecessarily impacted by restrictions on cross-ownership or control between registrar and registry.

I believe the WG is referring here primarily to, for example, certain “cultural” TLDs that expect to operate in linguistic niches not currently catered for by registrars.
The operators of the .zulu and .kurd TLDs would certainly find themselves without a paddle if the rules obliged them to find an ICANN-accredited registrar that supports either of their languages.
There are other would-be registries, such as .music, that call themselves “community” TLDs and want to be able to sell directly to users, but my feeling is that many in the WG are less sympathetic to those causes.

2. The need for a process that would allow applicants to request exceptions and be considered on a case-by-case basis. The reasons for exceptions, and the conditions under which exceptions would be allowed, vary widely in the group.

There’s not a great deal to add to that: the WG spent much of the last couple of weeks arguing about “exceptions” (that they could not agree on) to a baseline rule (that they could not define).

3. The concept of Single Registrant Single User should be explored further.

An “SRSU” is a subset of what a lot of us have been calling a “.brand”. The proposed .canon TLD, under which Canon alone owns .canon domains, would likely fall into this category.
The WG’s report suggests that SRSU namespaces, should they be permitted, should not be subject to the same restrictions as a more open and generic TLD that sells to the average man on the street.
The alternative would be pretty crazy – imagine Canon owning the registry but being forced to pay Go Daddy or eNom every time it wanted to add a record to its own database.
I do not believe that a hypothetical .facebook, in which Facebook is the registry and its users are the registrants, falls into the SRSU category. Which is also pretty nuts, if you’re Facebook, forced to hand your brand over to the world’s domain name registrars.

4. The need for enhanced compliance efforts and the need for a detailed compliance plan in relation to the new gTLD program in general.

One principle that has come through quite clearly whilst lurking on the WG mailing list is that the degree of distrust between participants in this industry is matched only by the lack of confidence in ICANN’s ability to police bad actors effectively.
Domain name companies are masters of the loophole, and ICANN’s enforcement mechanisms have historically been slow enough that yesterday’s scandal often becomes today’s standard practice.
This sums it up pretty well:

Some members feel that loosening vertical integration/ownership controls may let the proverbial “genie out of the bottle that can’t be put back” should competitive harms result in the marketplace. Others believe that adopting restrictions on vertical integration or cross ownership is the wrong approach altogether, and that the focus should be on protecting against harms, and providing sanctions where harms take place.

The WG currently has six policy proposals on the table, which vary from the “no VI allowed” of the current Draft Applicant Guidebook to “some VI allowed” to “full VI allowed”.
There was a poll of WG members a few weeks back, to see which proposal had most support. It was inconclusive, but it left three proposals clearly in the lead.
The so-called Free Trade proposal, which advocates no limits on cross ownership, was originally authored by Sivasubramanian Muthusamy of ISOC India Chennai.
The proposal as it currently stands puts the focus on ICANN troubleshooting undesirable activities through compliance programs rather than ownership restrictions.
Opposed, a proposal known as RACK+, offered up primarily by Afilias, some of its partners, and Go Daddy, favours a much more restrictive policy that is more aligned with business models established under the last ten years of gTLDs dominated by .com.
RACK+ would impose a 15% ownership limit between registries, registrars and registry service operators, ostensibly in order to prevent registrars abusing privileged registry data.
But under RACK+, all TLDs, including .brands and obscure community TLDs, would be obliged to accept registrations only through ICANN registrars, on a non-discriminatory basis.
This would probably render the .brand TLD market stillborn, if adopted by ICANN, I reckon.
A third proposal, called JN2+, originally authored by representatives of NeuStar and Domain Dimensions, occupies a spot somewhere in the middle ground.
It also proposes 15% ownership caps between registrars, registries and registry service providers, but it contains explicit carve-outs for SRSU-style .brands and “community” TLDs.
Because I’m a wimp, and I have no desire to be drawn into the kinds of arguments I’ve been reading and listening to recently, I’m going to quote Milton Mueller here, saying JN2 “had the highest acceptability ranking of all the proposals” when the WG was polled.
(Sorry.)
I find it rather surprising that the WG seems to be calling for more policy work to be done on ICANN’s compliance programs before the issue of vertical integration can be fully resolved.
If anything, this seems to me to be yet another way to risk adding more delay to the new TLD program.
There’s a public comment period now open, here. And here’s the report itself (pdf)

Isn’t it about time for ICANN Las Vegas?

ICANN is now almost 12 years old, it’s held almost 40 public meetings in diverse cities all over the planet, and it’s never been to Vegas. Not once.
That’s got to change.
The organization is currently looking for a North American city in which to hold its fortieth public meeting, slated for next March. It’s the perfect opportunity for a company to put in a Las Vegas bid.
It’s about time ICANN headed to The Strip. It’s got to be the only industry organization in the world to never convene there. If the International Beverage Dispensing Equipment Association gets to have a Vegas convention, why can’t we?
Vegas is the conference center of North America, if not the world. There’s literally dozens of venues capable of handling a thousand or less beardy domain types, all within walking distance of each other.
If the conference facility prices are anything like the hotel room prices, ICANN and its sponsor should be able to find a real bargain.
For overseas visitors on a budget, flights to and hotels in Vegas can be very reasonable – rooms are generally subsidized by the money lost in the casinos downstairs.
The ICANN Fellowship Program would be massively oversubscribed. Live in the developing world? Fancy a free trip to Vegas? ICANN will be fighting off applicants with the proverbial stick.
But who would sponsor such a meeting?
Let me think… we’d be looking for a domain name company with deep pockets, something to sell, and no particular queasiness about sponsoring a Sin City event.
Can you think of anyone like that?
By March 2011, ICM Registry will very likely be in the pre-launch stages of the .xxx TLD.
The company will be looking for registrar partners, trying to assure IP interests that it’s not going to screw them, preparing for its sunrise and landrush periods… perfect timing.
Plus, we could have strippers at the Gala Event.
The stars are aligning on Las Vegas for ICANN 40.
ICANN, ICM – let’s make this happen.

Will ICANN drop anti-terror rule from new TLD process?

ICANN has been chastised for prohibiting terrorists from applying for new top-level domains. Really.
Abdulaziz Al-Zoman of SaudiNIC has written to the organization to worry about the fact that “terrorism” has been added to the list of forbidden activities for new TLD applicants.
The word made its first appearance in version four of the Draft Applicant Guidebook, and was harshly criticized during the ICANN board’s public forum in Brussels last month.
Al-Zoman is primarily concerned that there is no definition of “terrorism” in the DAG.

While the international community is extensibly [sic] divided on who is a terrorist and who is a freedom fighter, and notwithstanding ICANN’s lack of definition whatsoever in the DAG 4 on terrorism, it is a surprise to me to see ICANN involving itself in the area of terrorism while its mandate is only being a global technical coordinator.

He has a point, of course.
Hamas is the probably the best example today: an elected government with a paramilitary wing, classified as a terrorist organization by the US and UK, among others.
In the old days, we could have used the IRA as an example: a bunch of extremists blowing up English pubs, backed by American money.
During the public comment forum in Brussels, ICANN’s Kurt Pritz gave every indication that the word “terrorism” will be yanked or defined in the next DAG. From the transcript:

I agree with you that certain terms, and especially that one that is so sensitive, either requires — it should be removed or it should be — you know, it should have additional definition.

He was responding to a somewhat hyperbolic statement from Khaled Fattal, CEO of the Multilingual Internet Names Consortium, which is worth quoting (again from the transcript).

For ICANN to invoke the term “terrorism” in this arbitrary manner threatens ICANN’s ability to effectively undertake its mandate of being the global technical coordinator of the Internet. It would also challenge its legitimacy as a global public service provider in the eyes of the international community if it continues on this path, but most importantly, alienate many of the international community.
Moreover, it raises many concerns as to whether ICANN is succeeding at truly internationalizing itself.
…
Furthermore, the arbitrary inclusion of terrorism as a measuring stick without any internationally recognized law or standard is wrong and if acted upon it can be understood or seen by Muslims and Arabs as racist and profiling.

Strong stuff.
Now, ICANN’s painted itself into a bit of a corner. To placate its critics, it can either adopt a definition of terrorism, or it can drop the word entirely.
The former idea is probably unworkable – Wikipedia’s attempt to define “terrorism” under international law is over 4,500 words – and the latter could lead to interesting headlines.

ICANN GIVES THUMBS UP TO TERROR DOMAINS

I think I’ll leave that one for Fox.

RapidShare has no rights to “rapid”, says WIPO

RapidShare, the file-sharing service that recently embarked upon a spree of UDRP filings against domain name registrants, has lost its first such case.
A WIPO panelist denied the company’s claim on RapidBay.net, saying it had “not proved that they have any trademark or service mark rights in the expression ‘rapid bay’, or in the word ‘rapid'”.
RapidShare therefore failed to prove that “RapidBay” was identical or confusingly similar to its RapidShare trademark, and the complaint was thrown out.
The decision does not bode well for the company’s ongoing UDRP claims over rapid4me.com, rapidownload.net, rapidpiracy.com and rapid.org, among others.
Rapid.org’s registration, in particular, would appear to be safe, if the panelist in that case follows the same line of reasoning.
That will no doubt please the many people visiting my previous post recently, apparently looking for an explanation of why Rapid.org, a forum for sharing mainly copyrighted works, recently started bouncing to Bolt.org.
RapidShare has in recent months filed a couple dozen UDRP complaints against people who have registered “rapid” domains and are using them to help people find pirated material on the service.

RapidShare files UDRP claim on Rapid.org

RapidShare, confidence bolstered by a number of recent UDRP wins against domains that contain its trademark, has now turned its attention to some more dubious challenges.
The German file-sharing service has lately filed UDRP claims on the domains rapid4me.com, rapidownload.net, rapidpiracy.com and rapid.org, none of which contain its full “rapidshare” trademark.
The sites in question all relate to sharing files (mostly copyrighted works) on RapidShare. Rapid.org bounces visitors to Bolt.org, a file-sharing forum for predominantly pirated content.
It’s a bit of a stretch to see how any of these domains could be seen to be confusingly similar to the RapidShare trademark. But not, I think, a stretch too far for many UDRP panelists.
Ironically, Rapid.org, which must be worth a fair bit on the aftermarket, was originally registered in 1997 by an IP-protection company.
RapidShare has filed dozens of UDRP claims over the last few months, initially targeting file-sharing sites that utilized rival services, before broadening its campaign to also hit RapidShare-centric sites.

RBS wins totally bogus UDRP complaint

The Royal Bank of Scotland has been handled control of the domain rbscout.com in a UDRP decision I have no trouble at all describing as utterly bogus.
RBS, naturally enough, owns a trademark on the term “RBS”. Its UDRP claim is based on the notion that a domain beginning with “rbs” is therefore confusingly similar.
For this to work, logically, the meaning of “rbscout” must be taken as “RBS cout”.
Cout?
The idea that the registrant actually had “RB scout” in mind does not appear to entered into the deliberation of the National Arbitration Forum panelist, Paul Dorf.
It took me all of two minutes with Whois and Google to determine that the registrant, The Auction Scout, is a player in the market for auctioning heavy machinery, and that RB, Ritchie Bros., is such an auctioneer.
There’s simply no way the registrant could have had RBS in mind when he registered the domain back in February.
So why did Dorf find evidence of bad faith?
Because the domain rbscout.com resolves to a default Go Daddy parking page, which displays advertising links to financial services sites including RBS’s own site.
So, just because Go Daddy’s algorithms are confused by the string “rbs” appearing in a domain, human beings would be similarly confused?
It defies common sense. Dorf should be ashamed of himself.

ICANN chair says new TLD guidebook could be final by December

Peter Dengate Thrush, chairman of the ICANN board, thinks there’s a chance that the Applicant Guidebook for new top-level domains could be ready by ICANN’s next meeting, set for Cartagena in early December.
The board resolved in Brussels on Friday to turn its September two-day retreat into a special meeting focussed on knocking the DAG into shape.
Shortly after the vote, Peter Dengate Thrush spoke at a press conference (emphasis mine).

Soon after the closing of the [DAG v4] public comment period was a regularly scheduled retreat for the board to go and do what boards do at retreats, and what we’ve decided today to do is to use that two-day retreat to see if we can’t make decisions on all the outstanding issues in relation to the new TLD program.
That’s probably reasonably ambitious, there may still be a couple left, but we want to get as many of them out of the way as we can. That means that when we come to the next ICANN meeting in Cartagena in December we hope to be very close if not actually able to hand out the Applicant Guidebook for that new process.

I asked him what outstanding issues needed to be resolved before the DAG can be finalized. Instead of a comprehensive list, he named two: IP protection and the Governmental Advisory Committee’s “morality and public order” concerns.
The IP issue is “close” to being resolved, he said, but “there may still be issues”.
On MOPO, he said there is “a potential conflict emerging” between GAC members who value free speech and those who are more concerned with their own religious and cultural sensitivities.
When I followed up to ask whether it was possible to reconcile these two positions, this is what he said:

What we’ve done is ask the GAC is how they would reconcile it… now they are saying that they can’t see how it can be done. We see that very much as a problem either for the GAC to change its advice, or to provide us with a mechanism whereby that can be reconciled.

The Brussels GAC Communique (pdf), has little to say on MOPO, delaying its advice until its official DAG v4 public comment filing.
MOPO has already created tensions between the GAC and the board. The conversation at their joint meeting on Tuesday went a little like this:

GAC: We don’t like this MOPO stuff. Please get rid of it.
BOARD: Okay. What shall we replace it with?
GAC: Erm…
BOARD: Well?
GAC: It’s not our problem. You think of something.
BOARD: Can you give us a hint?
GAC: No.
BOARD: Please? A little one?
GAC: We’ll think about it.

So can we expect the GAC to get its act together in time for Cartagena? That, too, seems ambitious.

ICANN Brussels – some of my coverage

As you may have noticed from my relatively light posting week, it really is a lot easier to cover ICANN meetings remotely.
The only drawback is, of course, that you don’t get to meet, greet, debate, argue and inevitably get into drunken fist-fights with any of the lovely people who show up to these things.
So, on balance, I think I prefer to be on-site rather than off.
I was not entirely lazy in Brussels this week, however. Here are links to a few pieces I filed with The Register.
Cyber cops want stronger domain rules

International police have called for stricter rules on domain name registration, to help them track down online crooks, warning the industry that if it does not self-regulate, governments could legislate.

.XXX to get ICANN nod

ICANN plans to give conditional approval to .xxx, the controversial top-level internet domain just for porn, 10 years after it was first proposed.

Governments mull net censorship grab

Governments working within ICANN are pondering asking for a right of veto on new internet top-level domains, a move that would almost certainly spell doom for politically or sexually controversial TLDs.

New TLD guidebook could be finalized at ICANN retreat

ICANN’s Draft Applicant Guidebook for new TLDs could become the Final Applicant Guidebook at an ICANN retreat before the next ICANN meeting.
Chairman Peter Dengate Thrush said at a press conference here in Brussels earlier that a private two-day board retreat this year, focused entirely on new TLDs, could “clear up any remaining issues” with the DAG.
I believe he was referring to the ICANN board’s scheduled September 24-25 retreat, although he may have had something else in mind.
Dengate Thrush said that we should not expect the board to pass as many resolutions relating to the DAG at the end of the Brussels meeting as it did at the end of Nairobi three months ago.
But he still expects DAG v4 will be the final draft published before the guidebook is finalized.
“The reality is that there are a number of overarching issues where the community has to reach consensus, and it’s difficult for us to put time limits on the community,” he said.
A few minutes ago, during an open mic session on new TLDs, Jon Nevett of Domain Dimensions questioned whether there should be a special ICANN meeting, before the retreat, to give the community a chance to help with the finalization process.