What Europe’s demands mean for new gTLDs

The European Commission wants stronger government powers over ICANN’s new top-level domain approval process, according to leaked documents.
Six “informal background papers” obtained and published by .nxt yesterday indicate that the EC, perceiving snubs over the last six months, plans to take a hard line with ICANN.
The documents cover a lot of ground, including a discussion of the various mechanisms by which governments would be able to force ICANN to reject new gTLD applications.
This article covers just the bases related to new gTLDs.
As things currently stand, ICANN’s Applicant Guidebook gives governments three ways to register their objections to any given gTLD application. The EC wants two of them strengthened.
GAC Early Warning
The Governmental Advisory Committee may formally put an applicant on notice that one or more governments have a problem with their bid.
Any government can initiate an Early Warning “for any reason”, at any point during the 60-day public comment period that is currently scheduled to begin April 27.
The mechanism is designed to give applicants a chance to get out with their cash before a more formal objection is filed by the GAC or an individual government.
Applicants in receipt of such a warning can choose to withdraw at that point, receiving a partial refund of their fees, but it’s entirely voluntary.
Under the EC’s new proposals, a GAC Early Warning would trigger an additional requirement by the applicant to show the support of “the relevant internet community”.
Because there’s little chance of getting this provision into the Guidebook now, the EC wants this provision baked into ICANN’s IANA contract with the US Department of Commerce.
The IANA contract is currently the biggest stick governments have to beat ICANN with. It’s up for renewal before March, and it’s the US that decides what goes into the contract.
The European Commission paper on new gTLDs says:

The IANA contract should include a provision requiring applicants to positively demonstrate the support of the relevant Internet community in advance of formal consultation of the GAC (and other supporting organisations and advisory committees), in cases where there are prima facie grounds to believe that the application may raise a public policy concern.

The paper explains: “in other words, if the GAC issues an early warning, the applicant would be automatically required to demonstrate the support of the relevant Internet community”.
In the Guidebook today, only applicants that have self-designated as “community” applications have to show this level of support, using a strict scoring process.
The EC’s proposal could, hypothetically, force non-community applicants to show a similar level of support if a single government initiates an Early Warning in the GAC.
If there was a vanilla, non-community application for .gay, for example, an Early Warning spurred (anonymously) by Saudi Arabia, say, could force the applicant to provide evidence of community support.
How this evidence would be evaluated is unclear. It would depend on what final language the Department of Commerce puts into the IANA contract.
At a guess, it could be a matter for the ICANN board to decide, with the Damoclean sword of IANA non-compliance hanging over its decision.
Formal GAC Advice
The Guidebook today allows for over six months, from April 27 to November 12, for the GAC to formally object to any gTLD application.
The way the GAC will create this formal “GAC Advice on New gTLDs” is a black box. We probably won’t even be told which governments objected, or what level of support they received.
ICANN had tried to enforce certain transparency and procedural requirements on this mechanism, but the GAC told it to take a hike and ICANN bent over in the interests of expediency.
But any such Advice will nevertheless “create a strong presumption for ICANN that the application should not be approved”.
The ICANN board will technically still be able to overrule one of these objections, but it practice it seems unlikely. At the very least it’s not predictable.
Under the European Commission’s new proposals, this fail-safe would be weakened further:

The ICANN by-laws should be amended to ensure that consensus GAC advice is accepted as reflecting the global public interest, and should ICANN wish to reject such advice, it would bear the burden of demonstrating that the GAC advice would conflict with ICANN’s legal obligations or create problems for the stability or security of the Domain name System.

In other words, the bar for an ICANN board decision to overrule the GAC would be raised to only include cases where there was a legal or technical reason not to comply.
The GAC would have an effective veto on every decision ICANN is asked to make. The term “multi-stakeholder” would be subverted in almost textbook Orwellian fashion.
To have this proposal implemented, the EC suggests that ICANN and the GAC enter talks. There’s no talk of running to the US government to have it unilaterally imposed.
Reserved Words
Currently, all new gTLD registries will be forced to reserve strings such as country names from their spaces, and deal with individual governments to open them up.
The EC wants the list expanding to include basically any word that governments ask for, and it wants the US government to make this a condition of IANA contract renewal:

In relation to reserved and blocked names at the second level, the IANA contract should require the contractor to develop appropriate policies to allow governments and public administrations to identify names to be included in a reference list to be respected by all new gTLD operators.

This request appears to have been inspired by ICM Registry’s offer to block “culturally sensitive” strings from .xxx at the request of governments.
Yet again, we find global internet policy being driven by sex. What is it with these politicians?
Domain Name Takedown
Incredibly, the EC also wants the IANA contract to include a provision that would allow any government to ask any gTLD registry to turn off any domain:

The contractor [ICANN] should also be required to ensure that governments and public administrations can raise concerns about particular names after their registration if a serious public order concern is involved, and with a view to the registry “taking down” the name concerned.

This clearly hasn’t been thought through.
Facebook.com and Twitter.com have both been blamed recently for raising “serious public order concerns” in everything from the Egyptian revolution to the London riots.
The new powers the EC is discussing would have given the despotic former government of Egypt a legal basis for having Twitter shut down, in other words.
Cross-Ownership
Finally, the EC is still concerned, on competition grounds, about ICANN’s decision to drop the vertical separation rules that apply to registries and registrars.
It suggests that the IANA contract should create a new oversight body with an “extra-judicial review” function over ICANN, enabling its decisions to be challenged.
This would enable antitrust authorities in Europe or elsewhere to challenge the vertical integration decision without having to resort to the US courts.
Anyway
Overall, the proposals seem to represent a depressingly authoritarian ambition by the European Commission, as well as a disdain for the idea of the ICANN multi-stakeholder model and a shocking lack of respect for the rights of internet users.
While the documents are “informal background papers”, they do seem to give an indication of what certain elements within the EC think would make reasonable policy.
Whether the positions outlined in the papers became a reality would largely depend on whether the EC’s requests, if they were made, were compatible with US public policy.
As usual, the Department of Commerce still holds all the cards.

Google ranks new .xxx site higher than its .com

Is Google experimenting with swapping out .com domains when an equivalent .xxx exists?
Last week, ICM Registry announced it had granted ifriends.xxx to iFriends, a popular network of adults-only webcams, as part of its pre-launch Founders Program.
Today, a Google search for iFriends sometimes returns ifriends.xxx right at the top, with ifriends.com nowhere to be seen on the first page.
Other times, ifriends.com or ifriends.net gets top billing.
The iFriends network has been around since 1998, according to an ICM press release, so its .com and .net domains will presumably already have significant juice.
Obviously, Google has been useless for returning easily predictable results ever since it started “personalizing” SERPs a couple years back.
Running a few non-scientific experiments, it seems that the choice of browser, toolbar, Google site and location may play a factor in which results you see.
The significant thing seems to me to be the fact that when your results do include the .xxx domain first, it appears to completely replace the .com.
What do you see when you search? What do you think is going on?

Most new gTLDs will fail

We’re going to see hundreds of new gTLDs over the coming years, but we’re also going to see potentially hundreds of failures.
That’s the view being espoused by some of the biggest cheerleaders of ICANN’s new generic top-level domains program, including its former chairman, at the .nxt conference this week.
During the opening session on Wednesday, a panel of experts was asked to imagine what the domain name industry might look like in 2017, five years after the first new gTLDs go live.
“My assumption is that many TLDs will have completely failed to live up to their promoters’ hype,” said Minds + Machines executive chairman Peter Dengate Thrush, whose last action as ICANN chair was pushing through approval of the program. “But on the other hand many of them, and I hope a majority of them, will be thriving.”
Anyone expecting to build a business on defensive registrations better think again, panelists said.
“Many ill-conceived generic-term TLDs will have failed by that point, especially those generic term TLDs that are taking comfort in the .xxx Sunrise Part B revenue model,” said Paul McGrady of the law firm Greenberg Traurig.
“There’s definitely going to be burnout in the brand-owner community, so don’t expect the brand owners to show up to to fuel that,” he said.
Others, such as Tucows CEO Elliot Noss, went further.
“I think there’ll be more failures than successes and I’m not fussed by that,” said Noss. “For the users in the namespace, it’s not like they’re left high and dry.”
He compared failing gTLDs to the old Angelfire and Geocities homepage services that were quite popular in the late 1990s, but which fizzled when the cost of domains and hosting came down.
But while the disappearance of an entire gTLD would take all of its customers with it, a la Geocities, that’s unlikely to happen, panelists acknowledged.
ICANN’s program requires applicants to post a bond covering three years of operations, and it will also select a registry provider to act as an emergency manager if a gTLD manager fails.
When gTLD businesses fail, and they will, they’re designed to fail gracefully.
In addition, taking on an extra gTLD after its previous owner goes out of business would be little burden to an established registry provider — once the transition work was done, a new string would be a extra renewal revenue stream with possibly little additional overhead.

Want Beyonce.xxx? JustinBieber.xxx? Forget it

ICM Registry has banned a whole bunch of celebrity names from the new .xxx top-level domain, in order to scupper cybersquatters and opportunistic porn webmasters.
Want to register Beyonce.xxx, AngelinaJolie.xxx, OlsenTwins.xxx, Madonna.xxx, BritneySpears.xxx, KimKardashian.xxx, HalleBerry.xxx or WinonaRyder.xxx?
How about JustinBieber.xxx, BradPitt.xxx, CharlieSheen.xxx, SimonCowell.xxx, GeorgeMichael.xxx, EltonJohn.xxx, VerneTroyer.xxx, DonaldTrump.xxx or OsamaBinLaden.xxx?
Forget it. According to Whois records, you’re out of luck on all counts. They’ve all been reserved by the registry.
These are all among what I’m guessing is at least hundreds – maybe more – of celebrity names that ICM has blocked from ever being registered.
The company won’t say how many celebrities have been afforded this privilege, or how it came up with the list, but it has said in the past that a total of about 15,000 domains have been registry-reserved.
That also includes the names of the world’s capital cities, culturally sensitive strings put forward by a handful of governments, and the “premium” names that ICM plans to auction.
I’m wondering what the cut-off point is for celebrities. How famous do you have to be to get your .xxx blocked by default by the registry? B-List minimum? D-List? What database is ICM using?
American Pie actor Tara Reid just entered Celebrity Big Brother here in the UK, which pretty much means her career is over, and she’s managed to make it to ICM’s reserved list.
While ICM has always said it would help protect personal names from abuse, it’s never been entirely clear about how it would go about it.
Its registry agreement with ICANN has for some time said that “unauthorized registration of personal names” would be forbidden, but there were no real details to speak of.
As I reported last week, its souped-up cybersquatting policy, Rapid Evaluation Service, has a special provision for personal names.
But presumptively blocking a subset of the world’s famous people from .xxx is bound to raise questions in the wider context of the ICANN new gTLD program, however.
As far as I can tell, no corporate trademarks have been given the same rights in .xxx as, say, David Cameron or Barack Obama.
If ICM can protect Piers Morgan’s “brand”, why can it not also protect CNN? Or Microsoft or Coke or Google? None of these brands are registry-reserved, according to Whois.
The trademark lobby will raise this question, no doubt. ICM has its own celebrity Globally Protected Marks List for .xxx, which only applies to individuals, they could argue.
There are some differences, of course.
Celebrities sometimes find they have a harder time winning cybersquatting complaints using UDRP if they have not registered their names as trademarks, which can be quite hard to come by, for example.
(UPDATE: And, of course, they may not qualify for ICM’s sunrise period if they don’t have trademarks, as EnCirca’s Tom Barrett points out in the comments below).
In addition, celebrity skin is a popular search topic on the web, which may give cybersquatters a greater impetus to register their names as domains, despite the high price of .xxx.
Also, if a registry were to reserve the brand names of, say, the Fortune 1000, it would wind up blocking many dictionary or otherwise multi-purpose strings, which is obviously not usually the case with personal names.

ICM reveals tough .xxx cybersquatting rules

ICM Registry has finally taken the wraps off its rapid domain name takedown service, which promises to make life difficult for cybersquatters in the .xxx top-level domain.
The Rapid Evaluation Service, as it is known, is basically a souped-up version of the familiar UDRP that tilts the overall balance in favor of legit trademark holders.
It’s designed for companies or individuals who don’t want to be associated with .xxx domain names, and has the remedies to match.
Using RES, brand owners will be able to get a domain temporarily suspended in less than a week, and later have it switched off for good.
That’s right, if a name is lost under RES it goes into registry-reserved status. The complainant does not get control of the domain, and they don’t have to pay recurring renewal fees.
But it will not be cheap. The National Arbitration Forum is the only organization authorized to handle RES work, and it’s charging $1,300 per domain, with no discounts for multiple-domain cases.
RES does not replace UDRP, but it is based on it.
Like UDRP, its three pillars are the domain’s confusing similarity with the complainant’s trademark, the rights and legitimate interests of the registrant, and the question of bad faith registration.
While much of the RES has been copied straight from the UDRP, there are key differences.
ICM has codified some of the good case law that has emerged from the last decade of UDRP and eschewed some of the bad, arguably making RES less open to interpretation.
Notably, unless you’re filing to protect a personal name — celebrities, porn stars or just the average Jo(e) — RES is for nationally registered, in-use trademarks only. Other marks don’t seem to count.
Typos are explicitly included in the definition of confusing similarity (no microsfot.xxx), as are brand+keyword domains (microsoftporn.xxx).
Phonetic similarity also makes an appearance, which seems like it could open a great big can of worms.
The bad faith component of RES is very similar to UDRP, but with the addition of a typosquatting ban and the removal of the requirement to show the registration was made for “commercial gain”.
As far as registrants are concerned, there are some additional protections you won’t find in UDRP, notably this text, which seems to specifically make many generic terms immune:

(iii) the domain name in the .XXX TLD has a primary meaning apart from its secondary meaning as a trademark or service mark associated with the complainant, and is being used in connection with its primary meaning in association with which the complainant has not acquired distinctiveness in the adult-entertainment industry.

Technically, and very hypothetically, I interpret this to mean that if you registered apple.xxx (which you won’t) and used it to publish videos of men recreating that scene from American Pie, you probably couldn’t lose the domain to an RES complaint.
I expect this is largely of concern to companies that have registered trademarks that correspond to dictionary words. They may have to use UDRP as usual.
RES has previously been billed as a 48-hour solution, but in reality cases could take anywhere between three and five days before a Preliminary Decision is handed down.
After a complaint is filed, there’s a one-business-day turnaround for an administrative check, then another two business days for the panelist to decide what to do.
If a respondent has lost three or more RES cases in a year, the panelist will be entitled to presumptively consider them an “abusive registrant” for a preliminary decision.
Preliminary decisions can stop a domain resolving immediately, if the panelist thinks the complainant is likely to win and that there’s no “substantial likelihood of harm” to the registrant.
Registrants then have 10 days to respond before a final decision is made. If they default, maybe because they’re on vacation, they have up to three months to appeal.
In short, we’re looking at the bastard son of UDRP here.
I suspect the trademark lobby is going to quietly love it. If that’s the case, it might help the domain industry look a bit more respectable.
If you’re more likely to be a respondent than a complainant, you’d be well-advised to familiarize yourself with RES (and ICM’s other policies) before investing in gray-area .xxx domains.
The huge glaring problem with the policy as far as I’m concerned is that neither ICM or NAF is going to publish any of its decisions in full, only aggregated statistics.
This is ostensibly to protect the identities of the complainants, but it’s also going to cover up (probably inevitable) sloppy decision-making, which won’t be good for confidence in the .xxx TLD.
But if somebody cybersquats your mom, you’ll probably be glad of it.

FSC steps up anti-.xxx campaign

The Free Speech Coalition is trying to rally its supporters into a legal nastygram campaign against ICM Registry ahead of the launch of .xxx next month.
The California-based porn trade group wants webmasters to inform ICM that if it sells their trademarks as .xxx domains, they may sue.
It’s released a template letter (pdf) for members to use. It reads, in part:

ICM is now on notice that the registration of any domain name using the .XXX extension that is identical or confusingly similar to one of the trademarks or domains listed on Exhibit A will violate (COMPANY NAME)’s intellectual property rights and constitute an unfair business practice. ICM must take steps to prevent such activity before it can occur. Failure to take affirmative steps to prevent this conduct will establish ICM’s substantial liability.

The FSC believes that because .xxx is squarely aimed at porn webmasters, it smells like a shakedown a lot more than a more generic-sounding string would.
Its tactics are interesting – encouraging others to issue legal threats instead of doing it itself.
As I’ve previously noted, top-level domain registries based in the US have a pretty good legal defense against cybersquatting suits under the Anticybersquatting Consumer Protection Act.
Whether those defenses extend to claims of trademark infringement is a different matter. As far as I know, a sponsored gTLD manager has never been sued on these grounds.
The .xxx gTLD is of course one of the most cybersquatting-unfriendly namespaces ever, in terms of the number and strength of its trademark protection mechanisms.

IFFOR names .xxx porn council members

The five porn industry members of the body which will set the rules for .xxx domains have been named by the International Foundation For Online Responsibility.
IFFOR is the policy shop set up by ICM Registry to oversee the new top-level domain. It will be funded to the tune of $10 a year from every .xxx domain registration.
The newly announced members of its Policy Council are:
Jerry Barnett, managing director of Strictly Broadband, a UK-based video-on-demand provider.
Florian Sitta, head of the legal department of the large German porn retailer Beate Uhse.
Trieu Hoang, based in Asia, counsel for AbbyWinters.com.
Chad Bellville, a US-based lawyer who advertises UDRP services.
Andy Kayton, general counsel for WebPower, which runs iFriends (a pornographic webcam service) and ClickCash, a large affiliate network.
Both Americans are members of the First Amendment Lawyers Association, according to IFFOR.
It will be interesting to see what the adult industry makes of this. Usually when a porn company throws in with ICM Registry and .xxx there’s a bit of a backlash on webmaster forums.
That said, I doubt these names will come as much of a surprise. Some if not all of the companies these people represent have already engaged in the .xxx Founders Program.
IFFOR’s non-porn Policy Council members were named in June.

Go Daddy confirms .xxx pricing, will host porn sites

Go Daddy has revealed its pricing scheme for .xxx domain names and confirmed that it will indeed host the porn sites that use them.
When .xxx goes into general availability in December, Go Daddy will charge $100 per name per year.
That’s surprisingly high – a $40 markup on the $60 ICM Registry fee – for a registrar generally known for its reasonable prices.
I know of at least two registrars planning to sell .xxx more cheaply – the UK’s DomainMonster ($75 if bought in bulk) and Spain’s DinaHosting ($67). There may be others I haven’t come across yet.
Sunrise period pricing at Go Daddy is $210 for applications from the adult entertainment industry and $200 for trademark holders from outside the industry. Landrush prices will be $200 too.
Those fees represent some of the better deals I’ve seen for .xxx’s pre-launch phases.
The prices have not yet been published on the Go Daddy web site, but a company spokesperson confirmed that some of its larger customers have been privately notified.
That apparently includes Mike Berkens, who broke the news last week.
Go Daddy also confirmed that it will host .xxx porn sites, though only on its paid-for hosting accounts.
I’ve always been a little confused by Go Daddy’s hosting terms of service. By my reading, porn was outright banned. Apparently I was dead wrong.
The company’s general counsel, Christine Jones, said in a statement:

Go Daddy’s Web hosting agreement does not currently prohibit pornography, except in the case of ad-supported hosting. Those terms will continue for all TLDs, including .xxx, unless otherwise prohibited by our agreements with the various registry operators.

I know I’m not the only person out there who was confused by the ToS, but I can’t think of a better person to clarify the situation than the company’s top lawyer.

ICM makes $4m from .xxx Founders

ICM Registry made just shy of $4 million from its Founders Program, which allocated premium .xxx domain names to porn webmasters.
As Elliot’s Blog reported, uber-domainer Frank Schilling’s Name Administration has picked up 33 .xxx domains for a seven-figure sum.
Schilling got his hands on the likes of amateur.xxx, asian.xxx, hardcore.xxx, hot.xxx, porno.xxx and many other “super premiums” domains.
He said in a statement provided by ICM:

I believe that .XXX, unlike many other new TLDs, offers SLD registrants the opportunity for long term type-in traffic. Many people navigate in a way that suggests they believe .XXX existed all along. Few strings other than .XXX share this attribute.

ICM president Stuart Lawley said that .xxx was a popular type-in TLD long before it even existed on the internet. Apparently the non-existent .web is also pretty good for traffic.
While on the face of it selling these super-premiums to a domainer may look like ICM shirking its duties to its sponsored community, Schilling like all .xxx Founders has committed to develop web sites at all of his .xxx names – the domains are not for flipping.
ICM says it has allocated some 1,500 domains to 35 registrants under the Founders Program.
Beate-Uhse, Germany’s biggest adult retailer, has picked up kostenlos.xxx (“free”) among others.
Channel 1 Releasing, a Californian gay porn publisher, has grabbed several domains related to its niche, such as muscle.xxx and jock.xxx.
I understand one UK company has also decided to rebrand its entire stable around the .xxx extension.
While many domains sold for six figures, not all Founders paid big bucks – many got their names for the standard registration fee in exchange for their development commitments.

.xxx reveals new gTLD support problems

It’s late 2012. You’ve spent your $185,000, fought your way through objections, won your contention set, and proved to ICANN that you’re technically and financially capable of running a new generic top-level domain.
The registry contracts have been signed. But will your gTLD actually work?
The experiences of .xxx manager ICM Registry lately suggest that a certain amount of outreach will be needed before new gTLDs receive universal support in applications.
I’ve encountered three examples over the last few days of .xxx domain names not functioning as expected in certain apps. I expect there will be many more.
Skype. Type http://casting.com into a chat window and Skype will automatically make the link clickable. Do the same for the .xxx equivalent, and it does not.
Android, the Google mobile platform. I haven’t tested this, but according to Francesco Cetaro on Twitter, unless you manually type the http:// the domain doesn’t resolve.
TweetDeck, now owned by Twitter. It doesn’t auto-link or auto-shorten .xxx domains either, not even if you include the http:// prefix.
This problem is well known from previous new gTLD rounds. ICANN even warns applicants about it in the Applicant Guidebook, stating:

All applicants should be aware that approval of an application and entry into a registry agreement with ICANN do not guarantee that a new gTLD will immediately function throughout the Internet. Past experience indicates that network operators may not immediately fully support new top-level domains, even when these domains have been delegated in the DNS root zone, since third-party software modification may be required and may not happen immediately.
Similarly, software applications sometimes attempt to validate domain names and may not recognize new or unknown top-level domains.

As a 10-year .info registrant, I can confirm that some web sites will still sometimes reject email addresses at .info domains.
Sometimes this is due to outdated validation scripts assuming no TLD is longer than three characters. Sometimes, it’s because the webmaster sees so much spam from .info he bans the whole TLD.
This is far less of an issue that it was five or six years ago, due in part to Afilias’s outreach, but just this week I found myself unable to sign up at a certain phpBB forum using my .info address.
I understand ICM has also been reaching out to affected app developers recently to make them aware that .xxx now exists in the root and has resolvable domains.
ICANN also has released code in C#, Java, Perl, and Python (though not, annoyingly, PHP) that it says can be easily dropped into source in order to validate TLDs against the live root.
The last beta was released in 2007. I’m not sure whether it’s still under development.
(UPDATE: CentralNic CTO Gavin Brown has knocked up a PHP implementation here.)