Is 80% of .xxx going to be defensive?

Is the new adults-only top-level domain going to turn out to be just as big of a trademark shakedown as some had feared?
EasySpace, a British domain name registrar, claims that 80% of its .xxx pre-orders are from organizations outside the porn industry.
“Out of the hundreds of businesses that have rushed to pre-register with Easyspace ahead of the opening of the Sunrise phase for .XXX domains on 7 September 2011, only 20% of them are from the adult industry,” the company said in a press release.
EasySpace is just one rather small registrar, of course, and its marketing of .xxx is very much in the “Protect your brand” camp, so its numbers may not necessarily hold up industry-wide.
The company is charging $189.99 ($310) for non-porn defensive registrations, an almost 100% markup on the registry fee.
Still, 80% is a big number, and likely to be used by critics not only of .xxx but of new TLDs in general.

The first .xxx porn site has gone live

Casting.xxx tonight has become officially the first live porn site to use a .xxx domain name.
It’s very not safe for work, of course, but if you head over there right now you can watch a handful of streaming videos, according to sources.
Casting.xxx is the first site to use a domain granted under ICM Registry’s Founders Program, which let the registry sell off or basically give away premium names to publishers.
ICM says it’s allocating about 1,500 domains to about 35 Founders, which is quite a lot more domains than I was expecting.
The .xxx top-level domain has been active in the domain name system for a few months now, but to date the only resolving domains have been those belonging to registry manager ICM.
Casting.xxx is registered to a Really Useful Ltd, which appears to have been set up purely to build sites on .xxx domains, of which casting.xxx is the first of several.
The .xxx sunrise period begins next month, with landrush in November and general availability slated for December.

ICM gives away .xxx domains to porn stars (video)

It seems that pretty much every time I’ve written about .xxx over the last five or six years the article has been mentioned, or focussed on, how the porn business hates it.
For a change, here’s a shameless propaganda video (possibly NSFW) that ICM Registry produced during a recent, evidently quite boozy, party at Platinum Lace, a strip joint in London.

Context: ICM was sponsoring the party.
The people heard supporting .xxx are either porn actresses who’ve just been given their .xxx domains, employees of the Paul Raymond stable of top-shelf men’s magazines, or domain registrars.
One of the interviewers is “Mario”, a Z-lister known for being annoying on the TV show Big Brother last year. I figured his 15 minutes were already up, but I guess not.
The other is ICM’s sales director Vaughn Liley. He’s the one who starts interviews with the question “So, do you think .xxx will be good for the industry, or great?”
Watch out, David Frost.
Also seen posing, though not speaking, is Ben Dover, pretty much the only mainstream-famous porn video producer ever to come out of the UK.

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.

CNN asks: Will .xxx domains cost $185,000?

If you’ve ever doubted what a rarefied world we work in, check out this new CNN interview with ICM Registry, which confusingly conflates .xxx with ICANN’s new top-level domains program.
Anchor Pauline Chiou uses the approval of new gTLD program as a segue into a brief interview with ICM president Stuart Lawley about the forthcoming .xxx sunrise period.
“If they want to apply for this one-time block do they have to pay this $185,000?” she asks
She goes on to press Lawley into launching a defense of ICANN’s program that I doubt he was expecting.

You’ll notice that Chiou also refers to ICANN as the “Internet Corporation for Assigned Names” and flatteringly describes it as “the group that oversees the development of the internet”.
For a casual viewer, it would be fairly easy to come away from this interview assuming Lawley works for ICANN, and that .xxx domains could cost $185,000.

ICM reveals .xxx launch dates, extends sunrise

Citing demand, ICM Registry has lengthened the .xxx sunrise period, which begins September 8, by three weeks. It will now end October 28, running for 50 days.
The new deadlines apply to all three sunrises, which will run concurrently.
Sunrise A-T – for porn publishers with trademarks.
Sunrise A-D – for porn publishers with matching domains in other TLDs.
Sunrise B – for anyone outside the porn business who wants to “turn off” their trademark in .xxx to prevent cybersquatting.
Successful Sunrise B applicants will see their chosen domains resolve to a standard information page explaining that the domain is not available for registration.
Post-launch, anyone can register a non-resolving domain that returns an NXDOMAIN response, but they’ll have to pay for it annually. Sunrise B applicants pay a one-time fee.
If applicants from Sunrise A and Sunrise B both apply for the same domains, the porn applicant will be given precedence, although they will be warned about possible trademark infringement.
If more than one Sunrise A applicant applies for the same domain, the fight will be taken to an auction, managed by Pool.com. Auction rules will be published at a later date.
The sunsrise is outlined in a policy document (pdf) ICM published on its web site today that sets out the rules for its pre-launch period.
The company has not yet announced details of its Charter Eligibility Dispute Resolution Procedure, nor its Rapid Evaluation Service, though it has said it expects them to cost between $750 and $1,500, depending on what deals it can come to with dispute resolution providers.
The Rapid Evaluation Service, previously referred to as “rapid takedown” will be an interesting one.
It’s expected to be a little like the Uniform Rapid Suspension process ICANN’s new gTLDs will have to implement, except it will only take about 48 hours to take down an obviously cybersquatted domain.
ICM says it expects to publish these policies before the sunrise begins.
Landrush is now expected to run November 8 until November 25. General availability will begin December 6.

Will Larry Flynt sue over .xxx domains?

The porn publisher Hustler is “prepared to take whatever legal action may be necessary” to stop ICM Registry letting people register its trademarks in .xxx, according to a report.
I’ve been hearing rumors for several weeks that some companies are so unhappy about having to pay to block their brands in .xxx that they may consider legal action.
Now Xbiz reports that Hustler has said it refuses to be “shaken down” by the registry, but that ICM has not responded to its written demands for protection.
But will the company sue ICM (and ICANN?) over what may amount to just a few thousand dollars in defensive registration fees? And on what grounds?
In the US, the Anticybersquatting Consumer Protection Act, which has been on the books since 1999, is rather friendly to registries unless they behave really, really badly.
ICM will have some of the strongest trademark protection mechanisms of any gTLD, suggesting that it could have quite a strong defense to a cybersquatting claim.
Hustler could of course decide to sue based on a different law.
Threats of lawsuits are something that new gTLD applicants will need to bear in mind if they plan to apply for a TLD that encompasses an industry or community, as .xxx does.
Even if applicants manage to win the support of a portion of the affected industry, community members that think they’re likely to be cybersquatted or lose valuable real estate may well resort to the courts.
This is why about 30% of every new gTLD application fee goes into an ICANN war chest reserved in part for legal fees. ICANN knows what could be coming down the pike.
Xbiz quoted Hustler attorney Jonathan Brown saying: “We are constantly policing the registration and use of domain names that attempt to capitalize on Hustler’s trademarks.”
But the record shows that the company does not appear to be an especially aggressive enforcer of its marks in other top-level domains.
The magazine’s parent, LFP, has filed 29 UDRP complaints since 2002, all relating to Hustler and Barely Legal and, apart from hustler.tv, all for .com domains. The most recent filing was in 2009.
The company does not own the string “hustler” in .net, .org, .info, .biz or in a number of high-visibility ccTLDs that I checked. It does, however, own hustler.mobi.

Firm offers .xxx trademark checks

We’ve seen domain “reservation” services and “preregistration” services, now the soon-to-launch .xxx top-level domain is getting a pre-sunrise trademark verification service.
Trademark Fact Check is a new offering from EnCirca president Tom Barrett and Mark Kudlacik, formerly of NetNames and now president of Checkmark Network.
It’s an automated tool for checking whether a trademark will qualify for the .xxx sunrise period – and the sunrise periods of other new gTLDs – according to the service’s web site.
The output, among other things, consists of a list of domain names you qualify to register in the sunrise.
It supports about 30 national jurisdictions.
Checks will cost $10 a pop, but Barrett and Kudlacik think they can save applicants money.
If a sunrise application is rejected due to a filing error, the only option is to pay again to file again, which for .xxx is likely to cost at least $200 with the cheapest registrars.
There’s a money back guarantee if Trademark Fact Check says an application will pass and it does not.
I’m not sure how much of a market there will be for this kind of thing when the new gTLDs start to launch in 2013 and sunrise trademark validation will be largely handled by the Trademark Clearinghouse.

.xxx domains to get free virus scans from McAfee

ICM Registry has signed up with security software outfit McAfee to provide automatic virus scanning for all web sites hosted at .xxx domain names.
Under the $8 million deal, “every .XXX domain will be scanned for vulnerabilities such as SQL injection, browser exploits and phishing sites, reputational analysis and malware”, ICM said in a press release.
The subscription, which is based on the McAfee Secure offering, will be included in the price of the domain, which is expected to start at around $75 at the cheapest registrars.
McAfee normally charges a lot more than that; ICM has basically negotiated a bulk discount for its customers.
There are two ways to take advantage of the deal.
First, webmasters can choose to put some code on their sites that displays the McAfee Secure logo, potentially increasing customer confidence and ergo sales.
McAfee reckons sales can go up by as much as 12% when sites use this “trust mark”, based on some split-testing it did a couple years ago (results may vary, it adds).
Second, because McAfee is going to automatically scan every .xxx domain every day, whether the registrant wants it or not, porn surfers will be able to use McAfee SiteAdvisor, a free browser plug-in, to verify that a .xxx site is, for want of a better word, clean.
Whether you like .xxx or not, you’ve got to admit that this probably counts as a rare example of “innovation” from a domain registry.
On the flipside, registrars that already offer such services as add-ons, such as Go Daddy, won’t get the up-sell if ICM is giving it to every registrant from the registry side.
But that doesn’t seem to have stopped any registrars from signing up to sell .xxx domains.
Oddly, the press release does not name McAfee as the service provider, but its brand is all over the ICM web site so embarrassment is probably not a factor.
McAfee currently has about 80,000 sites using the service, which could easily grow to 500,000 or more if ICM gets as many registrations as it expects to.

How the US shaped the new ICANN

The US government pushed hard for ICANN to pay more attention to international governments, which caused it to delay .xxx and the new top-level domains program, a new document reveals.
A transcript of a December 2010 meeting between ICANN’s board and National Telecommunications and Information Administration chief Larry Strickling, published following a disclosure request by DomainIncite, outlines America’s “tough love” policy over ICANN.
It reveals that Strickling hauled ICANN over the coals over its opaque decision-making, its failure to adequately address its Affirmation of Commitments obligations, and its apparent lack of respect for its Governmental Advisory Committee.
The era of ICANN engaging maturely and in earnest with governments, witnessed over the last six months, arguably began in that meeting room in Cartagena, the evening of December 7, 2010.
But it did so partly because it fitted with Obama administration policy.
Strickling told the board that the multi-stakeholder model of internet governance was critical to US public policy on other matters, but that he wanted to ensure “the reality fits the model”:

we are cheerleaders for this. But as I’ve said to several of you, there’s a model but then there’s the reality. And it is incumbent on us at this particular point in time, more so than perhaps ever before, to do what we can to ensure the model, that the reality fits the model.
…
what it comes back to at the end of the day is our concern that we want to be able to demonstrate to the rest of the world that the quality of decision-making by this organization is absolutely top drawer.

ICANN was failing to live up to these ideals, he said. This was particularly true in the case of the new gTLD program, which many had expected ICANN to approve in Cartagena.
Strickling said that ICANN had not done enough to evaluate the pros and cons of the program:

I’ve heard expressed the idea that somehow I or the United States is opposed to the expansion of top-level domains. That’s not the case. I don’t have a view one way or the other. Frankly, that’s up to you to decide.
What I do care about is that when you decide that question, that you do it with a quality of decision-making with all of the information in front of you that you ought to have with the experts having given you the opportunity to ask questions and evaluate the pros and cons of decisions as fully as possible.

He later added:

It’s very clear that there are a lot of warning signs, just in the studies that have been done so far, incomplete as they are, to suggest that rushing headlong into this issue, I think, could be a mistake.
But I want to very quickly kind of backtrack from that remark in the sense that I don’t think it’s my place, in my role, to tell you how to make your decisions in terms of what the outcome should be.
And I do think I have a role to play and will play the role of evaluating the quality of decision-making, which largely is processes, but at the end of the day it really comes down to did the board have in front of it the facts it needed to have to make an informed decision, and does their decision, as reflected in their report of that decision, reflect a reasoned, mature, responsible decision.

It’s impossible to tell precisely what the tone of the meeting was from the transcript, but it’s possible to infer from the content that it was likely that of a parent scolding an unruly child.
At one point in the transcript, director Rita Rodin Johnston refers to Strickling as “Dad”, and Strickling says moments later that he does not want to “play schoolteacher” .
Seemingly pushing for it to mature as an organization, he urged ICANN to engage more seriously with the GAC, which had concluded a frustrating public meeting with the board just minutes earlier.

I don’t know what all of the top challenges are to ICANN in the next three to five years, but I absolutely believe that in that top three will be the issue of ICANN’s relations with foreign governments.
…
I think you all are missing a tremendous opportunity to deal with this issue of ICANN and Internet governance and the role of foreign governments, and it’s absolutely incumbent upon you all to find a way to work with the GAC along the lines that Heather [Dryden, GAC chair] and her fellow members expressed to you today.
…
I think that’s important for your ultimate preservation as an independent organization, and I cannot, I guess, emphasize enough the importance of working out these processes with the GAC in terms of receiving their advice, treating it with respect by responding to it promptly and fully, sitting down and mediating with them where it appears there are disagreements.

His words hit home.
Later that week, ICANN deferred a decision on approval of .xxx, pending formal discussions with the GAC, and it arranged to meet with the GAC in Brussels to discuss the new gTLDs program.
Over the last six months we’ve seen numerous changes to the Applicant Guidebook – addressing the concerns of trademark owners, for example – as a result of these consultations.
The structure of this process also appears to been formed during this private Cartagena meeting.
Strickling clashed with then-chairman Peter Dengate Thrush on their respective interpretations of ICANN’s bylaws as they relate to rejecting GAC advice.
Dengate Thrush expressed a view that could be characterized as “vote first, consult later” (my words, not his), which Strickling dismissed as “silliness”.
Strickling evidently won the argument; ICANN this year has started consulting formally with the GAC prior to voting on important issues.
The first beneficiary of this policy was .xxx applicant ICM Registry, which Strickling addressed directly during the Cartagena meeting:

But let me just say I don’t know how — based on, as I understand the facts on both top-level domains and ICM, how you can possibly have a mediation this week, in terms of the fact that information has not been provided to the GAC that they’ve asked for, the fact that they do not feel they understand exactly what the board has disagreed with and why.

This appears to be the reason we’re looking at .xxx domain names hitting the market in September, rather than right now.
Finally, I find it ironic that, given the meeting’s focus on transparency, it was Strickling, rather than ICANN, who asked for a transcription of the talks to be made.

>>PETER DENGATE THRUSH: We are currently scribing this session. But under our rules if you want us not to scribe this, we just turn it off.
>>LAWRENCE STRICKLING: I’m fine to be on the record. I have spoken to some of you individually, and I urged every one of you who I talked to individually to share my views as far as they wished. And I have absolutely no problem with anything I say here being in the public record.

Despite this exchange, the transcript did not become part of the public record until last Friday, 30 days after I filed a request using ICANN’s Documentary Information Disclosure Policy, which is a little like its Freedom Of Information Act.
I wish I’d filed it sooner.
You can download the PDF of the transcript here.