Beginning of the end for DomainTools? Court orders it to scrub Whois records

DomainTools has been temporarily banned from collecting and publishing the Whois records of all .nz domains.
A Washington court yesterday handed down a preliminary injunction against the company, after New Zealand’s Domain Name Commission sued it in July for scraping and republishing its Whois in violation of its terms of service.
Notably — especially if you’re involved in the ongoing Whois reform debate — Judge Robert Lasnik’s scathing order (pdf) rubbished DomainTools’ claims that its historical Whois service provides a public interest benefit that outweighs the privacy interests of .nz registrants.
The ruling by its own admission also potentially opens the floodgates for other registries and registrars to obtain injunctions against DomainTools for the own customers.
DomainTools has been “enjoined from accessing the .nz register while DomainTools’ limited license remains revoked and/or publishing any .nz register data DomainTools had stored or compiled in its own databases”.
DNC, the policy body that oversees .nz registry InternetNZ, had alleged that DomainTools had created a “secondary or shadow register” by bulk-downloading Whois records.
Since mid-2016, each .nz Whois record has contained a notice that such behavior is prohibited, and Lasnik agreed that DomainTools must surely have been aware of this.
Lasnik further agreed with DNC that DomainTools’ service is “sabotaging” its efforts to bring more privacy protection to .nz customers; since November last year it has offered individuals the ability to opt out of having their private data published, an offer 23,000 people have taken up.
That was enough for the judge to conclude that DNC’s case had met the “irreparable harm” test required for an injunction.
He was less impressed with DomainTools’ argument that implementing the injunction would take many months and cost it up to $3.5 million.
“Defendant can presumably filter the .nz data using relatively simple database tools,” he wrote, ordering DNC to post a “nominal” $1,000 bond to cover DT’s potential losses.
Lasnik also said the public interest would be better served by permitting registrant privacy than by serving the interests of DomainTools’ cybsecurity and law enforcement customers:

defendant argues that the products it creates from its meticulously collected register data are critical cybersecurity resources and that the public interest would be harmed if the reports provided to government, financial, and law enforcement entities were incomplete because the .nz data were excised. The .nz register is comparatively small, however (approximately 710,000 domains compared with over 135,000,000 .com domains), and the defendant and its customers can access the registration information directly through plaintiff’s website if it appears that a bad actor is using an .nz domain. On the other hand, the .nz registrants’ privacy and security interests are compromised as long as defendant is publishing non-current or historical .nz information out of its database. The Court finds that the public has an interest in the issuance of an injunction.

While arguably limited to historical Whois records, it’s a rare example of judicial commentary on the privacy rights of registrants and may well play into the ongoing debate about Whois in the post-GDPR world.
Even if it turns out not to have wider policy implications, the legal implications for DomainTools are potentially devastating.
While .nz has only about 710,000 domains under management, and is but one of over 1,500 TLDs, DomainTools, DNC and Judge Lasnik all seem to agree that the floodgates for further litigation may have now opened. Lasnik wrote:

defendant argues that a preliminary injunction in this case could start an avalanche of litigation as other registers attempt to protect the privacy of their registrants. If defendant built a business by downloading, storing, and using data from other registers in violation of the terms that governed its access to that data, defendant may be correct — other registers may be encouraged to pursue a breach of contract claim if plaintiff is successful here. It would be ironic, however, if a plaintiff who has shown a likelihood of success and irreparable injury were deprived of preliminary relief simply because defendant may have acted wrongfully toward others as well

DNC said in a statement: “Managers of other countries domain name systems across the world will want to pay attention to the judgment. This may raise confidence to fight their own cases should DomainTools be breaching their terms of use.”
The case has yet to go to court, but the fact that DNC won the injunction indicates that the judge believes it has a likelihood of winning.

PIR chief: registries should stop stressing about volume

Public Interest Registry has announced some sweeping changes to how it markets .org and its other TLDs, with interim CEO Jay Daley telling DI that there’s too much focus on volumes in the industry today.
PIR is scrapping is volume discount programs after the current batch of incentives expires at the end of the year.
These are the programs that offer rebates to registrars if they hit certain performance targets, all based around newly created domains.
“They particularly favor large registrars, and we don’t think that’s appropriate going forward,” Daley told DI yesterday.
He said that when PIR removed some developed markets from its geographically-targeted discount programs, it saw creates go down but revenue improve.
He suggested that some registries have too much focus on volumes as a benchmark of success, failing to take account of important factors such as renews and abuse rates.
Part of the problem is that success is often measured (by folk including yours truly) by domains under management, rather than TLD health or revenue-per-domain.
“How many people are simply trying to get their numbers up without worrying about the underlying revenue, or taking a very low underlying revenue in order to get their numbers up?” Daley said.
“We’re not in any way somebody who is trying to get our numbers up at all costs, certainly not,” he said.
Another marketing program getting a makeover is pay-per-placement, where PIR would pay for prominent positions in the TLD drop-down menu of registrars storefronts.
These relationships have been based purely on new creates, Daley said, with appropriate “clawback” provisions when registrations turn out to be predominantly abusive.
In future, PIR intends to take a “longer-term, hygiene oriented view” of how its marketing money is used, making better use of data, he said.
“We need to be looking more at the quality of the registrations we get, the level of technical abuse generated by those registrations, looking at the renewal rates that come from those registrations,” he said.
PIR has a new four-strong channel services team that will be leading these changes.
“We are a public interest organization and need to take a public interest view on everything we do,” Daley said. “We need to be looking at our promotions for more than just commercial reasons, we need to be looking at public interest reasons as well.”
Daley, who ran New Zealand’s .nz registry from 2009 until this January, said that the big changes he is overseeing do not reflect an attempt to put his stamp on PIR and take over the CEO office on a permanent basis.
He does not want to run a registry and does not want to relocate to PIR’s headquarters in Virginia, he said.
“I’ve been a registry CEO for nine years,” he said. “I’ve done this and it’s time for me to look at other things.”
He also sits on PIR’s board of directors.

.CLUB sees spam double after China promotion

.CLUB Domains has seen the amount of spam in .club double a month after seeing a huge registration spike prompted by a deep discount deal.
The registry saw its domains under management go up by about 200,000 names over a few days in early August, largely as a result of a promotion at Chinese registrar AliBaba.
AliBaba sold .club domains for CNY 3 ($0.44) during the promotion, helping it overtake GoDaddy as the top .club registrar.
At that time, spam tracker SpamHaus was reporting that 17.9% of the .club domains it was seeing in the wild were being used in spam.
Today, that number is 35.4%, almost double the August 7 level. SpamHaus does not publish the actual number of spammy domains for .club; that honor is only bestowed upon the top 10 “bad” TLDs.
Correlation does not equal causation, of course. There could be factors other than the AliBaba promotion that contributed to the increase, but I believe there’s probably a link here.
.CLUB chief marketing officer Jeff Sass told DI:

When registrars have domains “on sale”, there is always the chance that low-cost domains will be attractive to abusers. We monitor abuse proactively, and respond promptly to complaints, as well as monitor our registrar partners collectively and individually.

It’s almost certainly unfair of me to single out fluctuations in .club here, rather than take a comparative look at multiple TLDs. There are certainly many worse TLDs per SpamHaus’ statistics — .men leads among the gTLDs, with 87.2% spam.
But, given the industry truism that cheaper domains leads to more abuse, I think such a large increase correlating with such a successful promotion is a useful data point.

Donuts gets bought by former ICANN CEO’s firm

Donuts is to be bought by a private equity firm that has a former ICANN CEO as a partner.
The company, which holds the largest portfolio of new gTLDs, has agreed to be acquired by Boston-based private equity firm Abry Partners for an undisclosed sum.
Not much info about the deal has been released, but one senses an ICANN alum’s hand at the wheel.
Former ICANN chief Fadi Chehade is a partner at Abry, having been initially employed as senior advisor on digital strategy back in 2016 after he left ICANN.
Abry, on its web site, says it focuses its investments on profitable companies, adding:

Depending on the type of fund, we target investments from $20 million to $200 million.
Since Abry’s inception, we’ve developed deep industry expertise in Broadband, Business Services, Communications, Cybersecurity, Healthcare IT, Information Services, Insurance Services, Internet-of-Things, Logistics, Media, and Software as a Service.

Since its formation in 1989, Abry has “completed more than $77 billion of transactions, representing investments in more than 650 properties.”
Donuts was founded by domain veterans Paul Stahura, Jon Nevett, Richard Tindal and Daniel Schindler in order to take advantage of ICANN’s new gTLD program..
It was initially funded by $100 million from Austin Ventures, Adams Street Partners, Emergence Capital Partners, TL Ventures, Generation Partners and Stahurricane.
It currently runs over 200 TLDs, the most populous of which I believe is .ltd, with over 400,000 names.
Donuts is the latest of a series of domain companies to exit via the private equity route, notably following Neustar and Web.com.
Chehade was ICANN’s CEO between 2012 and 2015. While he was not involved in the industry during the new gTLD’s program’s inception, he did oversee its early years.

Afilias finally admits it’s American

Afilias has changed its corporate structure and is now officially based in the United States.
A new holding company, Afilias Inc, has been created in Delaware. It now owns Afilias Plc, the Ireland-based company that has been until now the parent of the Afilias family.
Being “based” in Ireland and doing business primarily in the US was always partly a tax thing, and the company admitted in a press release yesterday that “recent favorable US tax changes” are one of the reasons it’s relocating to the States.
Trump’s tax changes last year reportedly saw corporation tax reduced from 35% to 21%, a steep cut but still a heck of a lot higher than Ireland’s aggressively business-friendly regime.
Other reasons for shift, CEO Hal Lubsen said in a press release, are: “More of the company’s shares are now owned by Americans, and our executive group is increasingly becoming American.”
The company also noted that its biggest partners — Public Interest Registry and GoDaddy — are American.
Afilias’s global HQ is now its office in Horsham, Pennsylvania. It also has offices in Canada, Australia, India and China.
The company told registrars that it does not expect the restructuring to have any impact on its operations.

Afilias sues India to block $12 million Neustar back-end deal

Afilias has sued the Indian government to prevent it awarding the .in ccTLD back-end registry contract to fierce rival Neustar.
The news emerged in local reports over the weekend and appears to be corroborated by published court documents.
According to Moneycontrol, the National Internet Exchange of India plans to award the technical service provider contract to Neustar, after over a decade under Afilias, but Afilias wants the deal blocked.
The contract would also include some 15 current internationalized domain name ccTLDs, with another seven on the way, in addition to .in.
That’s something Afilias reckons Neustar is not technically capable of, according to reports.
Afilias’ lawsuit reportedly alleges that Neustar “has no experience or technical capability to manage and support IDNs in Indian languages and scripts and neither does it claim to have prior experience in Indian languages”.
Neustar runs plenty of IDN TLDs for its dot-brand customers, but none of them appear to be in Indian scripts.
NIXI’s February request for proposals (pdf) contains the requirement: “Support of IDN TLDs in all twenty two scheduled Indian languages and Indian scripts”.
I suppose it’s debatable what this means. Actual, hands-on, operational experience running Indian-script TLDs at scale would be a hell of a requirement to put in an RFP, essentially locking Afilias into the contract for years to come.
Only Verisign and Public Interest Registry currently run delegated gTLDs that use officially recognized Indian scripts, according to my database. And those TLDs — such as Verisign’s .कॉम (the Devanagari .com) — are basically unused.
Neither Neustar nor Afilias have responded to DI’s requests for comment today.
.in has over 2.2 million domains under management, according to NIXI.
Neustar’s Indian subsidiary undercut its rival with a $0.70 per-domain-year offer, $0.40 cheaper than Afilias’ $1.10, according to Moneycontrol.
That would make the deal worth north of $12 million over five years for Afilias and over $7.7 million for Neustar.
One can’t help but be reminded of the two companies’ battle over Australia’s .au, which Afilias sneaked out from under long-time incumbent Neustar late last year.
That handover, the largest in DNS history, was completed relatively smoothly a couple months ago.

.CLUB revenue not all that

.CLUB Domains may be one of the 5000 fastest-growing companies in the US, according to Inc magazine, but it’s returning the majority of its revenue back to its registrars.
CEO Colin Campbell revealed this week that the company returns almost 70% of its gross revenue in the form of rebates.
The revelation came in an interview with Domain Name Wire on its latest podcast.
Campbell told Andrew Allemann that in 2017 .CLUB had $9.3 million in what he called “cash flow” or “gross revenue”.
But “net cash” or “net revenue”, after rebates was just $2.8 million, meaning $6.5 million was returned to registrars via promotions.
The interview came a few days after Inc named the company 1164th in its 2018 list of fastest-growing US companies.
Inc had .CLUB’s revenue at $7.2 million, but that appears to have been calculated using the usual accounting standards of deferring revenue into future periods over the lifetime of the domain subscription.
.club has something like 1.4 million names under management.
Campbell said that the company is “adding about a million dollars of net revenue per year” and he predicted 2018 gross cash to come in at $10.5 million and net to come in at $3.7 million.
That’s a net revenue figure, remember, not a profit or net income line. Campbell said he’s more interested in growing the business rather than paying taxes on profits.
The aggressive rebating seems to have a focus in China, where it has regular deals with the likes of Alibaba (which was .club’s biggest registrar with 20% of the market at the last count) and West.cn.
While .CLUB is private, Campbell has been frank about its performance in the past.
The DNW interview follows DI’s interview with Campbell on more or less the same topic last September, and DNW’s in 2016.
It’s a good podcast, you should have a listen.

New gTLDs rebound in Q2

New gTLD registration volumes reversed a long trend of decline in the second quarter, according to Verisign’s latest Domain Name Industry Brief.
The DNIB (pdf), published late last week, shows new gTLD domains up by 1.6 million sequentially to 21.8 million at the end of June, a 7.8% increase.
That’s the first time Verisign’s numbers have shown quarterly growth for new gTLDs since December 2016, five quarters of shrinkage ago.
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The best-performing new gTLD across Q2 was .top according to my zone file records, adding about 600,000 names.
.top plays almost exclusively into the sub-$1 Chinese market and is regularly singled out as a spam-friendly zone. SpamHaus currently ranks it as almost 45% “bad”.
Overall, the domain universe saw growth of six million names, or 1.8%, finishing the quarter at 339.8 million names, according to Verisign.
Verisign’s own .com ended Q2 with 135.6 million domains, up from 133.9 million at the end of March.
That’s a sequential increase of 1.7 millions, only 100,000 more than the total net increase from the new gTLD industry.
.net is still suffering, however, flat in the period with 14.1 million names.
ccTLDs saw an increase of 3.5 million names, up 2.4%, to end June at 149.7 million, the DNIB states.
But that’s mainly as a result of free TLD .tk, which never deletes names. Stripping its growth out (Verisign and partner ZookNic evidently have access to .tk data now) total ccTLD growth would only have been 1.9 million names.

.CLUB revenue reportedly $7.2 million

.CLUB Domains had $7.2 million of revenue in 2017.
That’s according to Inc magazine, which ranked the company at 1164th in its 2018 Inc 5000 list of the fastest-growing US-based companies.
Growth over three years for .CLUB, which is listed as having 17 employees, was 419%, according to the profile.
.club is one of the best-performing new gTLDs in terms of volume, with over 1.3 million domains under management, according to the company.
While it has generally steered away from deep discounting, it has in recent weeks benefited from a huge increase in sales — adding over 100,000 names to its zone file in just a few days earlier this month — as a result of a sale at the Chinese registrar Alibaba, which sold .club names for the RNB equivalent of $0.44.
That had the effect of diverting .club from a decline that looked like it would shortly have seen it dip below one million zone names for the first time in over a year.

38th dot-brand bows out after acquisition

Telecity Group, which used to be a major London-based internet collocation facilities operator, has told ICANN it no longer wishes to run its dot-brand gTLD.
.telecity will become the 38th dot-brand gTLD to terminate its registry agreement.
The company, which had close to £350 million ($445 million) revenue in 2014, was acquired by US-based rival Equinix for £2.35 billion ($3 billion) in early 2016.
Equinix has since started to transition away from the Telecity brand. Its old .com home page now instructs visitors to visit the Equinix site instead.
Like most of the other dead dot-brands, .telecity was never used.