Fight as ICANN “backtracks” on piracy policing

ICANN has clarified that it will not terminate new gTLD registries that have piracy web sites in their zones, potentially inflaming an ongoing fight between domain companies and intellectual property interests.
This week’s ICANN 56 policy meeting in Helsinki saw registries and the Intellectual Property Constituency clash over whether an ICANN rule means that registries breach their contract if they don’t suspend piracy domains.
Both sides have different interpretation of the rule, found in the so-called “Public Interest Commitments” or PICs that can be found in Specification 11 of every new gTLD Registry Agreement.
But ICANN chair Steve Crocker, in a letter to the IPC last night, seemed to side strongly with the registries’ interpretation.
Spec 11 states, among other things, that:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

A literal reading of this, and the reading favored by registries, is that all registries have to do to be in compliance is to include the piracy prohibitions in their Registry-Registrar Agreement, essentially passing off responsibility for piracy to registrars (which in turn pass of responsibility to registrants).
Registries believe that the phrase “consistent with applicable law and related procedures” means they only have to suspend a domain name when they receive a court order.
Members of the IPC, on the other hand, say this reading is ridiculous.
“We don’t know what this clause means,” Marc Trachtenberg of the IPC said during a session in Helsinki on Tuesday. “It’s got to mean something. It can’t just mean you have to put a provision into a contract, that’s pointless.”
“To put a provision into a contract that you’re not going to enforce, has no meaning,” he added. “And to have a clause that a registry operator or registrar has to comply with a court order, that’s meaningless also. Clearly a registry operator has to comply with a court order.”
Some IPC members think ICANN has “backtracked” by introducing the PICs concept then failing to enforce it.
IPC members in general believe that registries are supposed to not only require their registrars to ban piracy sites, but also to suspend piracy domains when they’re told about them.
Registries including Donuts have started doing this recently on a voluntary basis with partners such as the Motion Picture Association of America, but believe that ICANN should not be in the business of content policing.
“[Spec 11] doesn’t say what some members of the IPC think it says,” Donuts VP Jon Nevett said during the Helsinki session. “To say we’re in blatant violation of that PIC and that ICANN is not enforcing that PIC is problematic.”
The fight kicked off face-to-face in Helsinki, but it has been happening behind the scenes for several months.
The IPC got mad back in February when Crocker, responding to Governmental Advisory Committee concerns about intellectual property abuse, said the issue “appears to be outside of our mandate” (pdf).
That’s a reference to ICANN’s strengthening resolve that it is not and should not be the internet’s “content police”.
In April (pdf) and June (pdf) letters, IPC president Greg Shatan and the Coalition for Online Accountability’s Steve Metalitz called on Crocker to clarify this statement.
Last night, he did, and the clarification is unlikely to make the IPC happy.
Crocker wrote (pdf):

ICANN will bring enforcement actions against Registries that fail to include the required prohibitions and reservations in its end-user agreements and against Registrars that fail to main the required abuse point of contact…
This does not mean, however, that ICANN is required or qualified to make factual and legal determinations as to whether a Registered Name Holder or website operator is violating applicable laws and governmental regulations, and to assess what would constitute an appropriate remedy in any particular situation.

This seems pretty clear — new gTLD registries are not going to be held accountable for domains used for content piracy.
The debate may not be over however.
During Helsinki there was a smaller, semi-private (recorded but not webcast live) meeting of the some registries, IPC and GAC members, hosted by ICANN board member Bruce Tonkin, which evidently concluded that more discussion is needed to reach a common understanding of just what the hell these PICs mean.

11 Comments Tagged: copyright, helsinki, ICANN, ipc, new gTLDs, pics, piracy

Brexit probably no big deal for UK domain owners

The UK may have suffered the most serious self-inflicted wound since the deep-fried Mars bar when it voted to leave the European Union last week, but it seems unlikely to have a huge effect on domain name registrants.
Most EU ccTLD registries do not require registrants to be based in the EU, and those that do have shown themselves flexible.
I surveyed the web sites of all 29 EU ccTLD registries, scouring FAQs and policy documents, to see if leaving the EU would cause conflicts for UK registrants.
All but one of these sites have comprehensive English versions available, which made the process very simple indeed.
It turns out the majority of the EU’s member states either have no geographic restrictions whatsoever or restrict registrations to only people and companies within their own nations.
I found five — six if you count .eu itself — that have policies that refer directly to a European Union presence in their rules and regulations.

• .fr (France) is restricted to residents of the EU and Iceland, Liechtenstein, Norway and Switzerland.
• .it (Italy) allows registrations from anyone in the European Economic Area, the Vatican, San Marino or Switzerland.
• .nl (Netherlands) allows regs from anywhere, but registry manager SIDN says may attach “additional conditions to legal and/or natural persons based outside the European Union”.
• .hu (Hungary) requires EU residency for individuals and companies wishing to register directly at the second level. There are no such restrictions at the third level.
• .bg (Bulgaria) requires a local Bulgarian presence for non-EU registrants.
• .eu (European Union) requires presence in the European Union, Norway, Iceland or Liechtenstein.

As you can see, even those with EU presence requirements are pretty flexible when it comes to bolting on additional eligible countries.
So-called Brexit — British exit from the EU — is unlikely to happen for two years or more, if it happens at all.
The thinking right now is that if/when the UK does finally formally leave it is likely to either become a member of the European Economic Area or have otherwise have negotiated a relationship with the EU not unlike Norway’s.
This would presumably make it fairly easy for ccTLD registries to plug the UK into their existing policies.
Any registry with a substantial number of existing UK registrants would of course have financial exposure to a Brexit, a likely incentive to modify their rules accordingly.
So for regular domain owners, Brexit is probably no big deal.
Whether the move would an impact on trademark holders or registrars are rather more complex matters that I have not looked at yet.

3 Comments Tagged: brexit, cctlds

Survey: more people know about new gTLDs but fewer trust them

People are becoming more aware that new gTLDs exist, but there’s less trust in them that there was a year ago, according to an ICANN-sponsored survey.
The second annual Global Consumer Survey, which was published late last week, shows that 16% of respondents had heard of specific new gTLDs, on average.
That’s up 2% on last year’s survey.
The number for TLDs added in the last year was 20%, with .news leading the pack with 33% awareness.
However, fewer people were actually visiting these sites: 12% on average, compared to 15% a year ago. For TLDs added in the last year, visitation averaged 15%.
And the amount of trust placed on new gTLDs added prior to the 2015 survey was down from 49% to 45% — half the level of .com, .org and .net.
For TLDs added since last year’s survey, trust was at 52% on average.
The 2015 survey looked only at .email, .photography, .link, .guru, .realtor, .club and .xyz. For this year’s survey, respondents were also asked about .news, .online, .website, .site, .space, .pics, .top, .bank, .pharmacy, and .builder.
The number of registered domains did not seem to have an impact on how aware respondents were on individual extensions.
.xyz, for example, had the lowest awareness of those used in the survey — 9% versus 5% in 2015 — despite being the runaway volume market leader and having scored PR coups such as Google’s adoption of abc.xyz for its new parent company, Alphabet.
Likewise, .top, second only to .xyz in the size league table, could only muster up 11% awareness.
.news, .email and .online topped the awareness list — with 33%, 32% and 30% respectively — despite having only about 500,000 names between them.
I’m not sure I buy much of this data to be honest. There’s some weirdness.
For example, the survey found that 28% of respondents claim to have visited a .email web site.
That’s a gTLD at least partially if not primarily designed for non-web use, with roughly 20,000 names that are not parked.
If over a quarter of the population were visiting .email sites, you might expect some of those sites to show up prominently in Alexa rankings, but they don’t.
But perhaps, if we take this survey as a measure of consumers perceptions, it doesn’t matter so much whether it reflects the reality of internet use.
The survey, conducted by Nielsen for ICANN, covered dozens of other aspects of internet use, including feelings on cybersecurity, navigation and such, and weighs in at 160 pages. Read it all over here.

7 Comments Tagged: ICANN, new gTLDs, trust

ICANN Ombudsman let go as role comes up for review

ICANN’s Ombudsman, Chris LaHatte, has been told his services are no longer needed.
His current contract expires July 27, but he’s been informed that it will not be renewed.
No reason has been given for the move.
Herb Waye, who took the role on an interim basis in 2011 after the departure of former Ombusdman Frank Fowlie, will step in again while ICANN looks for a permanent replacement.
LaHatte will continue on as an adviser during the transition.
The decision to replace LaHatte comes as the ICANN community begins on so-called Work Stream 2 of the IANA transition process, which includes a review of the role of the Ombudsman in ICANN’s power structure.
The Ombudsman’s job is currently to adjudicate on matters of fairness in ICANN’s activities.
He or she reports to the board and any advice given is non-binding.

Comment Tagged: ICANN, Ombudsman

Norway bans the Dutch from using dormant .bv

The Norwegian government has intervened to prevent a deal that would have allowed the sale of .bv domain names in the Netherlands.
Norwegian ccTLD registry Norid and Dutch counterpart SIDN said a deal to start using the dormant ccTLD fell apart after the government exercised its right of veto under Norway’s domain regulations.
.bv represents Bouvet Island, the remotest island in the world. It’s a Norwegian territory in the Antarctic, uninhabited but for seals.
It’s been delegated to Norway since 1997, but has never been used.
But BV is also the Dutch acronym for “Besloten vennootschap met beperkte aansprakelijkheid”, a corporate identifier that has pretty much the same meaning as “Ltd” or “LLC”.
Clearly, there was an opportunity to make a bit of extra pocket money for both registries, had SIDN been allowed to licence the use of the ccTLD, but the government intervention has scuppered all that.
SIDN said it had planned to use .bv as “a platform for validated business data”, but that now it will try to implement that idea in .nl instead.

5 Comments Tagged: .bv, bouvet island, cctlds, norid, sidn

Judge hands DotConnectAfrica another bizarre win

A California judge just handed ICANN another upset in the interminable legal battle waged against it by unsuccessful .africa applicant DotConnectAfrica.
Gary Klausner yesterday admitted he made a mistake when he earlier slapped ICANN with a preliminary injunction preventing .africa being delegated to DCA rival ZA Central Registry, but said his error did not have a huge bearing on that decision.
More remarkably, he’s now suggesting that ICANN may have been wrong to make DCA undergo the same Geographic Names Review as every other new gTLD applicant.
Both DCA and ZACR applied for .africa and had to go through the same evaluation processes, one of which was the Geographic Names Review.
Both had to show that they had support from 60% of the governments in Africa, and no more than one governmental objection.
ZACR had that support — though there’s legitimate dispute over whether its paperwork was all in order — while DCA did not. DCA also had over a dozen objections from African governments.
ZACR passed its geographic review, but DCA’s application was tossed out based on Governmental Advisory Committee advice before the review could be completed.
DCA took ICANN to an Independent Review Process panel, which ruled that ICANN had failed to live up to its bylaws and that DCA’s application should be returned to the evaluation process.
ICANN returned DCA’s application to the process at the point it had left it — before the geographic review was complete.
DCA then failed the review, because it has no support.
But when he granted the injunction against ICANN back in April, Klausner thought that DCA had actually passed the geographic review on the first pass. Not even DCA had claimed that; it was just a brain fart on his behalf.
He’s now admitted the mistake, but says the April ruling was not dependent on that misunderstanding.

The Court finds that the error in its factual finding was not determinative to its ultimate conclusion that there are serious questions going toward Plaintiff’s likelihood of success on the merits.

Now, he says that there may be some merit in DCA’s claim that it should have been allowed to skip the GNR due to the IRP’s recommendation that ICANN “permit DCA Trust’s application to proceed through the remainder of the new gTLD application process.”
Klausner wrote yesterday:

At this stage of litigation, it is reasonable to infer that the IRP Panel found that ICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper, and that the application should proceed to the delegation phase.

The problem with this thinking is that it was not the geographic panel that flunked DCA on the first pass, it was the GAC.
DCA got this document (pdf) from the geographic panel. It just says “Incomplete”.
If DCA succeeds in persuading a jury that it should have skipped the geographic panel, Africa could wind up with a .africa gTLD operator that none of its governments support and in circumvention of ICANN’s rules.
Yesterday’s ruling isn’t a killer blow against ICANN, but it does make me wonder whether Klausner — who is also hearing the much higher-profile Stairway to Heaven case right now — is really paying attention.
Anyway, he’s thrown out the ZACR/ICANN motion to reconsider the injunction, so the case is carrying on as before. Read the ruling here (pdf).

Comment Tagged: africa, dotconnectafrica, ICANN, lawsuit, zacr

Google offers reseller widget, signs first partners

Google’s registrar, Google Domains, has started offering a widget to make it easier to become a reseller.
The Google Domains widget has already been deployed by five web site builders — Big Cartel, Duda, Selz, Square and Webflow — the company said.
These companies have evidently embedded the software — a chunk of Javascript — into their web sites.
Google said it handles payment and DNS configuration — pointing the newly registered domains to the appropriate service — on behalf of its partners.
More details are here and here. For some reason Google is using domains.withgoogle.com for this program, even though it has a perfectly serviceable dot-brand in the root.

6 Comments Tagged: google, google domains, resellers, widget

Neustar to split into two

Neustar is to split into two companies and its domain name business is set for a rebranding.
The company said yesterday that it is breaking into an Order Management & Numbering Services company which will be called Neustar, and an Information Services company, which contains the domain business and will get a new name.
“The proposed spin-off will enable Neustar shareholders to own and value each business separately, allowing each company to attract the investor base most appropriate for its distinct investment profile,” said Neustar chair James Cullen.
That’s another way of saying the company is dumping all of its serious risk into the company that will remain Neustar.
Neustar currently holds the Local Number Portability Administration contract with the US government, under which it manages the central database of phone numbers.
It’s worth $496 million a year, but the US Federal Communications Commission has decided to switch to Ericsson unit Telcordia Technologies, which offered a better deal.
While Neustar is fighting the decision in court, its prospects don’t look great.
Separating the domain business from the numbering contract should insulate it from that risk.
The yet-to-be-named spin-off containing the domain business is worth $470 million a year, but most of that is unrelated to domain names. It will also offer Neustar’s marketing and security services.
It will be headed by current Neustar CEO Lisa Hook. CFO Paul Lalljie will bravely take the helm of the (probably) sinking Neustar ship.
The split is expected to take a year to implement.

2 Comments Tagged: neustar

One in seven new gTLD domain names are actually just numbers

Roughly one out of every seven new gTLD domain names active today is numbers-only before the dot, according to DI research.
It might be surprising to some that the DNS, designed to turn immemorable numbers into memorable names, is actually being used to register millions of numeric domains.
Using the almost 1,000 new gTLD zone files we had access to on July 19*, DI counted 20,933,637 unique domain names of which 3,259,684 were purely numeric.
In other words, 15.57% of new gTLD domain names only contain numbers before the dot.
Fourteen gTLDs have a third or more of their zones fully numeric. One is two-thirds numeric.
The reason for this, of course, is China.
Numeric domains are said to be popular in China due to the fact that digits are the only 10 characters permissible in DNS that Chinese speakers natively understand.
Many popular web sites in China use short, numeric .com or .cn domain names. Some short numeric domains have sold for six or seven figures to end-user companies.
So there’s a thirst for numerics among Chinese domainers, as well as domainers elsewhere who want to exploit the Chinese market.
I talked to a successful domainer recently who acquired thousands of numeric domain names purely to flip to Chinese investors.
Personally, I think the market is overblown. Data suggests there’s a limited appetite for numerics among actual end users.
Fewer than 2,700 of top one million most-visited domains, as ranked by Amazon’s Alexa service, are numeric. A quarter of a percent. Even if Alexa is wrong by a factor of 10, that’s still only 2.7% of the internet’s biggest sites using numeric domain names.
So which gTLDs are most exposed to the numeric market?
Surprisingly, given the registry’s reluctance to deeply discount its domains, two Donuts gTLDs — .gold and .run, both relatively small TLDs — top the table with 66.32% and 54.65% respectively.
I think these are anomalies. The majority of Donuts’ portfolio have far smaller percentages of numerics.
Fellow portfolio players Afilias (.bet, .kim) and Uniregistry (.lol, .mom) also feature prominently on the list.
Here’s the top 30 new gTLDs, ranked by the percentage of their zones that are numeric. It includes every gTLD over 20%.
[table id=43 /]
In absolute terms, the larger-volume registries naturally have the larger number of numeric domains in their zones.
XYZ.com’s .xyz alone has over 867,000 numeric domains in its zone. That’s a lot of names, but in percentage terms it’s below the industry mean.
.top, .wang, .win and club, all heavily marketed in China, fill out the top five in volume terms.
Here’s the top 30 gTLDs with the largest absolute number of numerics. They account for 3,099,981 numeric domains of the 3,259,684 industry total.
[table id=44 /]
While short domains are more attractive to investors and end users, the vast majority of numeric domains in new gTLDs are of course longer than five digits.
.xyz, for example, has over 757,000 numeric domains of six or more characters. .top, .wang and .win are also measured in the hundreds of thousands in this regard.
Four gTLDs — .club, .wang, .top and .xyz — are over 99% full when it comes to five-digit numeric domains (that is, they have over 99,000 numeric domains in their zones).
.win is over 95% full on that basis, after which the numbers drop sharply to 65% and below.
In terms of four-number domains, there are 10 gTLDs that are over 99% full and 16 over 90% full.
There are 36 new gTLDs over 90% full in terms of three-digit numeric domains. More than a dozen appear to be completely full (giving myself some wriggle-room for reserved names and those that otherwise don’t appear in the zone files).
So what to make of all this?
I’m not a domainer, but I’ve sometimes heard domainers compare domains to baseball cards.
Going with that analogy, I’d say that if the typical numeric domain name collection contains the odd vintage Babe Ruth**, he’s far outnumbered by cards depicting some guy’s kid playing catch in the park.
That may be true of all domain portfolios, numeric or otherwise, but I feel numerics exist primarily right now to be traded between domainers.
As long as this continues, new gTLD registries — at least the ones actually charging for their names — will continue to benefit.
* A note on methodology. Due to the way access to zone files via ICANN works (ie, sporadically) we were missing some zone files on July 19. Including the missing gTLD may alter the league tables presented above, but I don’t believe the missing data was significant to the overall totals. Only one of the top 100 gTLDs, a zone of about 28,000 names, was missing.
** I know nothing about baseball.

4 Comments Tagged: china, domainers, new gTLDs, numerics

DI implicated in .sucks “gag order” fight

Vox Populi, the .sucks registry, terminated Com Laude’s accreditation last week due to its belief that the brand protection registrar had leaked a “confidential” document to Domain Incite.
Vox Pop CEO John Berard tonight denied that the company he works for was carrying out a “grudge” against Com Laude, which in January led a charge against a Vox “gag order” on registrars.
As we reported on Friday, Vox terminated Com Laude‘s ability to sell .sucks domains directly, due to a then-unspecified alleged breach of the Registry-Registrar Agreement that binds all .sucks domain registrars.
It now turns out the “breach” was of the part of the .sucks RRA that states that Vox registrars “shall make no disclosures whatsoever” of “confidential informational”, where such confidential information is marked as such.
Berard told DI of the termination: “It was a specific act, violating a specific clause of the contract that had to do with breaching confidentiality, and that’s why the action was taken.”
The specific act was Com Laude allegedly sending DI — me, for avoidance of doubt — a confidential document.
“They have not said they didn’t do it,” Berard said.
He said that, given the amount of scrutiny Vox is under (due to the controversy it has created with its pricing and policies), “it would be crazy of us to ignore a contract breach”.
He declined to identify the document in question.
He said that Vox Pop deployed “forensic research” to discover the identity of the alleged leak.
“It was clear that something that was confidential was distributed, we wanted to know who distributed it,” he said. “We wanted to know who breached confidentiality.”
DI has only published one third-party document related to .sucks this year.
This is it (pdf). It’s a letter drafted by the Registrars Stakeholder Group and sent to ICANN. Here it is (pdf) as published on the ICANN web site.
DI has received other documents related to Vox Pop and .sucks from various parties that I have not published, but I’ve been unable to find any that contained the word “confidential” or that were marked as “confidential”.
According to the .sucks RRA (pdf), “confidential information” is documentation marked or identified “confidential”.
Everything I’ve ever written about .sucks can be found with this search.

1 Comment Tagged: com laude, ICANN, rra, sucks, vox populi