ICANN drops .jobs shut-down threat

ICANN has withdrawn its breach notice against .jobs registry Employ Media, opening the floodgates for third-party job listings services in the gTLD.
In a letter sent to the company earlier this week, ICANN seems to imply that it was wrong when it threatened in February 2011 to shut down .jobs for breaking the terms of its registry agreement:

ICANN has concluded that Employ Media is not currently in breach, but is instead in good standing under the Registry Agreement, with respect to the issues raised in the 27 February 2011 Notice of Breach letter.
…
ICANN will not seek to impose restrictions on new or existing policy initiatives within .JOBS as long as such conduct is consistent with the .JOBS Charter and the terms of the Registry Agreement.

The surprising move presumably means that Employ Media will be dropping its Independent Review Panel proceeding against ICANN, which was due to start in-person hearings next month.
The original breach notice alleged that the registry had gone too far when it sold thousands of generic domain names to the DirectEmployers Association to use for jobs listings sites.
This .Jobs Universe project saw DirectEmployers launch sites such as newyork.jobs and nursing.jobs.
The project was criticized harshly by the .JOBS Charter Compliance Coalition, an ad hoc group of jobs sites including Monster.com, which lobbied ICANN to enforce the .jobs contract.
The .jobs gTLD was originally supposed to be for companies to advertise only their own job openings.
The reasoning behind ICANN’s change of heart now is a little fuzzy.
Ostensibly, it’s because it received a letter December 3 from the Society for Human Resources Management, Employ Media’s policy-setting “sponsoring organization”.
The letter states that all of DirectEmployers’ domain names are perfectly okay registrations — “being used consistently with the terms of the .JOBS Charter” — and have been since the .Jobs Universe project started.
The domain names were all registered by DirectEmployers executive William Warren, who is a SHRM member as required by .jobs policy, the letter states.
Nothing seems to have changed here — it’s been Employ Media and SHRM’s position all along that the registrations were legit.
So did ICANN merely sense defeat in the IRP case and get cold feet?
Read the letters here.

ICANN demands the right to terminate .jobs

ICANN has asked the International Chamber of Commerce to rule that it has the right to terminate Employ Media’s .jobs contract.
It’s filed its response to Employ Media’s demand for arbitration over the disputed Universe.jobs service, which saw the registry vastly expand the .jobs space.
Employ Media “transcended the very intent behind creation of the TLD” with Universe.jobs, which allocated tens of thousands of .jobs domains to the DirectEmployers Association, ICANN said.
The organization wants the ICC to rule that it “may, but is not required to, terminate the Registry Agreement with Employ Media”, as it has already threatened.
Employ Media took ICANN to arbitration in May, after ICANN notified it that it was in breach of its registry agreement and they were not able to settle their differences in private talks.
The registry wants a declaration that it is not in breach.
But according to ICANN, Employ Media is still and has always been restricted to selling domains just to human resources professionals to promote jobs “within their own organizations”.
That’s despite ICANN’s approval of a contract amendment last year that allowed the registry to sell non-companyname .jobs domains.
This liberalization, ICANN says, did not allow the company to launch Universe.jobs, which monetizes at least 40,000 geographical and vocational .jobs through a massive third-party jobs board.
ICANN is now trying to frame the arbitration proceeding around a single question – was its breach notice “appropriate” or not?
The whole debacle is based around two interpretations of the .jobs Charter, which spells out who can register .jobs domains. This is what it says:

The following persons may request registration of a second-level domain within the .JOBS TLD:
– members of SHRM [the Society For Human Resources Management]; or
– persons engaged in human resource management practices that meet any of the following criteria: (i) possess salaried-level human resource management experience; (ii) are certified by the Human Resource Certification Institute; (iii) are supportive of the SHRM Code of Ethical and Professional Standards in Human Resource Management, as amended from time to time, a copy of which is attached hereto.

Employ Media’s interpretation is fairly literal and liberal – any signed-up SHRM member can register a .jobs domain and somebody at DirectEmployers is a member and therefore eligible.
Becoming a SHRM member is pretty straightforward and cheap. It’s not much of a barrier to entry.
ICANN argues that this interpretation is bogus:

Employ Media has espoused policies that allow a .JOBS domain name (or thousands of them) to be used for virtually any purpose as long as a human resource manager is propped up to “request” the domain. In doing so, Employ Media has failed to enforce meaningful restrictions on .JOBS registrations, as required by the Registry Agreement.

It further argues that Employ Media should have allocated premium .jobs domains through an “open, fair and transparent” process, rather than the “self-serving… backroom deal” with DirectEmployers.
Evidence now filed by ICANN shows that the two organizations have been arguing about this since at least November 2009, when Employ Media launched a Universe.jobs “beta”.
ICANN also now says that it has no problem with Universe.jobs, provided that Employ Media and SHRM amend their Charter policies to make the service retroactively compliant.
The more this dispute progresses and the more convoluted and expensive it becomes, the more it leaves me scratching my head.
You can download the latest arbitration documents from ICANN.

War of words over .jobs “breach” claims

Employ Media and ICANN have come to blows again over ICANN’s threat to shut down the .jobs registry for allegedly selling domain names in breach of its Charter.
Both parties are currently talking through their outside counsel, and the possibility of litigation has raised its head in public for the first time.
In the latest set of correspondence published by ICANN, Employ Media sharply (and ironically) criticized ICANN’s decision to publish an earlier set of correspondence on its web site.
The earlier email exchange, which I blogged about here, revealed that ICANN had asked the company to amend its Charter.
Two days later, Employ Media’s lawyers wrote to ICANN’s lawyers to express disappointment with the decision to post these emails, questioning ICANN’s commitment to good faith negotiations.

In light of this apparent bad faith action on ICANN’s part, Employ Media is questioning whether any hope remains for a full and fair exchange of ideas regarding a resolution of its dispute with ICANN.
…
[ICANN has] substantially hindered Employ Media’s ability to engage in productive and honest negotiations: all future communications will necessarily be more guarded and less open, given the expectation that they will be published to a larger audience

ICANN and Employ Media are currently in a “cooperative engagement” process – a less formal way to resolve their dispute than heading to an arbitration forum or court.
ICANN claims the registry is breaking its Charter commitments to the human resources industry by allocating tens of thousands of .jobs domain names to the Universe.jobs project, which is run by a partner, the DirectEmployers Association.
Independent jobs boards, represented by the the .JOBS Charter Compliance Coalition, believe that Universe.jobs is unfair and not compliant with Employ Media’s own policies.
Employ Media’s latest letter (pdf), which it demanded ICANN publish, drops hints about some of the behind-the-scenes talks (with my emphasis):

Had we known that any part of our communication was to be published, we would have certainly memorialized, in writing, your statements to us that ICANN very much wants to avoid an arbitration over this dispute, and that ICANN was therefore willing to agree to a process for approving a Charter amendment in order to do so. We would also have memorialized our positions, including our position that a Charter amendment is neither necessary nor desirable, but that we were considering acceding to ICANN’s request solely in the hopes of avoiding arbitration

ICANN’s lawyers’ response (pdf), sent April 26, says ICANN was merely fulfilling its transparency obligations by informing the community about the extension of the talks deadline.
They also said that the Employ Media should stop pretending to be surprised that ICANN issued the breach notice and is now asking for a Charter amendment.
ICANN further accused the registry’s lawyers of legal “posturing” which was “seemingly geared solely towards use in future litigation”.
Employ Media was due to deliver a proposed amendment to its Charter by yesterday. ICANN has said it will not take any further actions based on its breach notice until May 6.

Registry avoids .jobs shut-down

Employ Media has come to a deal with ICANN to avoid having its .jobs registry contract revoked, at least for the next few weeks.
Following discussions with ICANN’s lawyers, the company plans to amend its Charter, and has agreed to stop allocating non-company-name .jobs domain names until May 6.
ICANN threatened to terminate the .jobs registry deal in February, after Employ Media started allocating thousands of premium vocational and geographic domains to a partner, the DirectEmployers Association, to act as entry points for Universe.jobs.
In a breach notice (pdf), ICANN said that this use of .jobs domains “is inconsistent with the purpose stated in the .JOBS Charter and represented to the ICANN community”.
The .JOBS Charter ostensibly restricts registrations to human resources professionals, but in practice there’s a great big loophole that allows anybody to cheaply qualify for a domain.
In February, ICANN general counsel John Jeffrey told Employ Media:

By not establishing any meaningful restrictions on who may register second level registrations in the .JOBS TLD, Employ Media put in operation a TLD where anyone can register names, thus defeating the purpose for which the sponsored TLD came into existence.

In its response, the registry noted that it had followed ICANN’s proper procedures for introducing new “registry services”, such as the Phase Allocation Plan that allowed it to seed Universe.jobs.
It accused ICANN of bending to the wishes of the .JOBS Charter Compliance Coalition, a group of independent jobs sites operators that had objected to Universe.jobs.
Employ Media’s chief executive Brian Johnson wrote:

This is a sad day for both the Internet community and the international human resource management community. ICANN should be promoting competition and working cooperatively with its contractual parties, but instead is choosing to ignore the plain meaning of its contract with Employ Media in order to appease some apparently well‐financed and well‐connected provocateurs.

Since that letter (pdf) was sent, ICANN and the registry have been engaged in private discussions aimed at resolving the conflict, as allowed by the registry agreement.
In the latest set of correspondence, exchanged over the last week, it has emerged that ICANN has agreed to give Employ Media time to remedy the situation by amending its Charter.
The letters do not reveal whether the amendments will allow Employ Media to continue to offer Universe.jobs or not. I suspect they will.
The amendments may require the company to consult with its nominal sponsor, the Society for Human Resource Management.
ICANN wants a proposed Charter amendment on its desk by May 2. It has agreed to take no further action related to the breach of contract allegations until May 6.

ICANN threatens to shut down .jobs

In an unprecedented move, ICANN has threatened to cancel a top-level domain registry operator’s contract.
Employ Media, the .jobs registry, faces losing its TLD if it does not shut down Universe.jobs, the controversial jobs board operated by its partner, the DirectEmployers Association.
In a letter to the company (pdf), ICANN general counsel John Jeffrey wrote:

By not establishing any meaningful restrictions on who may register second level registrations in the .JOBS TLD, Employ Media put in operation a TLD where anyone can register names, thus defeating the purpose for which the sponsored TLD came into existence.
…
We are calling on Employ Media to take immediate actions to implement restricted registration policies that support the purpose for which the .JOBS top-level domain was established, and to cancel registrations and/or disavow themselves of the benefits of any registrations that are owned by related parties, if any.

The move comes following a complaint filed by the so-called .JOBS Charter Compliance Coalition, made up of jobs board such as Monster.com and CollegeRecruiter.com.
They’re annoyed that the registry licensed 40,000 premium geographic and vocational .jobs domains to DirectEmployers for Universe.jobs, which has started to compete with them.
Jeffrey wrote:

It appears that Employ Media and SHRM, through the Direct Employers Association, intend to use the .JOBS TLD primarily to compete with other internet job boards. Such use is inconsistent with the purpose stated in the .JOBS Charter and represented to the ICANN community.

The deal came as a result of a change to the .jobs registry contract, made through ICANN’s Registry Services Evaluation Process, that allowed Employ Media to lift a rule that restricted registered domain names only to the names of companies.
What the RSEP didn’t do was change the .jobs Charter, which restricts “who” may register .jobs domains. Yet, weirdly, the Charter is partly the basis for ICANN’s threat.
Jeffrey refers to the Charter restrictions, which are easily circumvented, as “specious” and “do not serve the international human resource management community”.
This is the Charter that ICANN approved back in 2005, and which hasn’t changed since, remember.
To come back into compliance, ICANN wants Employ Media to shut down Universe.jobs and get back to selling company-name registrations.
I think it’s likely Employ Media will appeal, possibly by taking the case to arbitration, as its contract allows.

Coalition complains to ICANN about Universe.jobs

The .JOBS Charter Compliance Coalition thinks Employ Media is violating its own policies by allowing Universe.jobs to be launched, and has complained to ICANN.
Coalition chief John Bell said the group, which comprises jobs sites such as Monster.com and CareerBuilder.com, “filed a formal notice” with ICANN’s compliance department December 17.
That was just one week after ICANN’s board of directors, at the Cartagena meeting, passed a resolution calling for ICANN staff to “closely monitor” the registry for charter violations.
“We are confident that ICANN is taking our claims seriously and we are looking forward to a favorable decision,” Bell said.
Universe.jobs was turned on by the DirectEmployers Association last week, using hundreds of generic domains, after ICANN give the registry the all-clear to start selling non-company-name domains.
The issue is whether this independent jobs board, which is fed traffic from domains such as usa.jobs, texas.jobs and marketing.jobs, is a permissible use of .jobs domains.
The Coalition thinks it isn’t. Employ Media thinks it is.
The Coalition has also apparently complained about NativeAmerican.jobs, another employer-independent jobs site, on behalf of NativeAmericanJobs.com.

Universe.jobs launches with hundreds of premium domains

The controversial Universe.jobs project has soft-launched, offering jobs listings at hundreds of premium geographic and vocational .jobs domains.
Country and state domains such as usa.jobs, gbr.jobs and texas.jobs, as well as industry domains such as firefighter.jobs and journalist.jobs are live and resolving.
If you visit, say, usa.jobs or rus.jobs, you’ll be presented with a bunch of job listings from the USA or Russia. If you visit retail.jobs, you’ll be bounced to usa.jobs/retail (at least, I was).
Even combinations, such as texas.nursing.jobs, seem to work.
I’ve no idea how many domains have been activated this way, but since all the geographics seem to be active I’m guessing it’s at least several hundred at the second-level.
The site, which is presented as a service of the DirectEmployers Association’s National Labor Exchange, currently says it’s in beta.
But the big questions now are: is this legit, and who owns the domains?
Employ Media, the .jobs registry, had to fight ICANN and mainstream commercial jobs boards in order to drop the contractual restrictions that previously limited .jobs to company names.
But some argued that, despite the relaxation of the string restrictions, employer-independent jobs sites such as Universe.jobs would still be verboten under Employ Media’s charter.
The .JOBS Charter Compliance Coalition, made up of newspaper associations and boards such as Monster.com, tried to get ICANN to reconsider its decision, but failed (kinda).
While the Coalition’s Reconsideration Request was unsuccessful, ICANN did say it will start to monitor Employ Media for compliance with its charter more closely.
More interestingly, perhaps, during the ICANN investigation Employ Media abruptly dropped plans to create a “self-managed” class of domains – names registered to itself, but “used” by third parties such as DirectEmployers.
Did it make good on its promise? It’s difficult to be certain, because the Whois for the many of the domains in question seems to be broken.
I’ve been able to establish that some older domains, such as usa.jobs and nursing.jobs, currently belong to DirectEmployers, but trying to figure out who owns some of the more recently registered geographical .jobs names is an excruciating process.
The Whois link buried at the bottom of the official Employ Media web site directs you to the Whois service provided by VeriSign (which runs the back-end registry infrastructure for .jobs).
VeriSign’s tool does not return the name of the registrant, only details such as the registration date, associated name servers, and the URL of the appropriate registrar’s Whois server.
In the case of all these geo domains, the registrar appears to be NameShare. The Whois server URL given by VeriSign points to a second tool, at whois.nameshare.com, that doesn’t work.
If you try to query, for example, usa.jobs (after filling out the Captcha) you get this message:

[r3] Error Message: Unsupported TLD .jobs

If you visit the NameShare homepage, you will be able to find a third .jobs Whois tool, at whois-jobs.nameshare.com/whois/. This doesn’t seem to work properly either.
This tool will tell you that the domain usa.jobs belongs to DirectEmployers.
However, almost every other Universe.jobs-related domain that I queried returned a “not found” message, even when the domain resolves and the VeriSign tools says it’s been registered for over a month.
I’m not sure what’s going on. Some kind of technical problem, no doubt.

Did .jobs win or lose in Cartagena?

Employ Media, the .jobs registry, had a victory in Cartagena last week, when the ICANN board voted not to overturn its August decision to allow .jobs to relax its registration policies.
The company will now be able to continue with its RFP process, allocate premium generic .jobs domains to its partners, auction them, and generally liberalize the namespace.
But the registry may not have got everything it wanted.
For at least a year, Employ Media, along with the DirectEmployers Association, has been pushing the idea of creating a massive free jobs board called universe.jobs.
The site would be fed traffic from thousands of premium geographic domains such as newyork.jobs, texas.jobs and canada.jobs, as well as vocational names such as nursing.jobs and sales.jobs.
Because Employ Media was previously only allowed to sell domains that corresponded to the names of companies, such as ibm.jobs and walmart.jobs, it asked ICANN to change its contract to allow these new classes of generic names to be registered.
The registry submitted a Registry Services Evaluation Process request, which was approved by the ICANN board in early August. The contract was amended shortly thereafter.
A few weeks later, a group of jobs sites including Monster.com, calling itself the .JOBS Charter Compliance Coalition, filed a Reconsideration Request, asking ICANN to reverse its decision.
The Coalition was concerned that the contract changes would enable universe.jobs, creating a potentially huge competitor with an unfair SEO advantage, while continuing to prohibit independent jobs sites from registering .jobs domains.
While the .jobs contract had been amended, the .Jobs Charter, which restricts those who can register .jobs domains to members of the human resources community, was not.
This potentially presented a problem for universe.jobs, as DirectEmployers may not have qualified to be a registrant under the charter.
But Employ Media’s RSEP proposal talked about creating a “self-managed class” of domains – the domains would belong to the registry but would be shared with third parties such as DirectEmployers.
That would have created an interesting precedent – registries would be able to keep hold of premium generic domain names and allow them to be “used” by only partner companies that agree to enter into revenue-sharing agreements.
But that “implementation method was withdrawn” by Employ Media after the ICANN Board Governance Committee asked about it as part of its Reconsideration Request investigation.
The BGC, while rejecting the Coalition’s request (pdf), also asked ICANN’s compliance department to keep a close eye on Employ Media, to make sure it does not overstep the bounds of its charter:

the BGC recommends that the Board direct the CEO, and General Counsel and Secretary, to ensure that ICANN’s Contractual Compliance Department closely monitor Employ Media’s compliance with its Charter

Even though its Reconsideration Request was denied, the .JOBS Charter Compliance Coalition counted both of these developments as a big win for its campaign, saying in a press release:

Given the Board’s commitment to aggressively monitor Employ Media’s implementation of the Phased Allocation Program, the Coalition is highly confident that ICANN will not permit Employ Media to register domain names to “independent job site operators” for purposes of operating job sites.

So does this mean that universe.jobs is dead?
Apparently not. Talk in the halls at the ICANN Cartagena meeting last week leads me to believe that the registry has figured out a way to launch the service anyway.
And DirectEmployers this Monday published a white paper (pdf), dated January 2011, which says universe.jobs will launch early next year.
DirectEmployers declined to immediately comment on its plans when I inquired this week, and the white paper sheds little light on the technicalities of the plan.
Judging from a promotion currently being run by EnCirca, a .jobs registrar, it seems that companies will only be able to list their jobs on universe.jobs if they own their own companyname.jobs domain.
EnCirca’s offer, which alludes to the .jobs sponsor, the Society for Human Resources Management, a “SHRM special“, says:

NEWS ALERT: December 13, 2010: ICANN has RE-CONFIRMED the .Jobs registry’s plan to allocate generic occupational and geographic-related .jobs domain names. Register your companyname.jobs to be part of this new initiative.

It will be interesting to see how domain allocations are ultimately handled.
While Employ Media’s request for proposals is ostensibly open, it looks a little bit like a smokescreen for its plan to hand big chunks of the .jobs namespace to the universe.jobs project.
But who will be the registrant of these domains? And will the allocations violate the .jobs charter? Will the registry carry on with its plan to create new “self-managed” class of domain names?
I think we’re going to have to wait for the new year to find out.

.jobs opponents get to the point

The .JOBS Charter Compliance Coalition has sent off another ream of text to ICANN, spelling out more clearly its objections to Employ Media’s plan to open up the .jobs namespace.
The Coalition wants ICANN to reject the registry’s plan to allocate thousands of premium .jobs domain names to partners including the DirectEmployers Association.
While previous filings danced around the issue, the latest Coalition missive makes it a little clearer what its beef is: it thinks DirectEmployers’ universe.jobs plan is bogus and should be blocked.
The documents were filed as part of an ongoing Reconsideration Request. The Coalition wants ICANN to reverse its decision to approve the .jobs “Phased Allocation Program”.
The program allows Employ Media to allocate “non-companyname” .jobs domains via an RFP process and, later, auctions and regular sales.
But the Coalition thinks it is a smokescreen designed to enable universe.jobs, a planned free jobs board that would be fed traffic from possibly thousands of premium generic domains.
Its objection boils down to the fact that Employ Media seems to be planning to register these premium domains to itself and allow DirectEmployers, which probably would not be a qualified HR registrant under the .Jobs Charter, to “use” them.
As the Coalition puts it:

Employ Media states that it intends to solicit plans under the Program “which may create a self managed class of domains registered in Employ Media’s name.” Presumably, in this “self-managed” scenario, Employ Media would register the domain names itself, and permit third parties to “use” the domains even if those third parties could not register them consistent with the Charter.

What we seem to have here is a case of a registry planning to monetize its premium domains by running them itself, in order to compete with companies that are barred from becoming registrants themselves.
This bothers the Coalition’s members, which all run jobs sites but would not qualify to register premium domains under the .Jobs Charter.
For Reconsideration Requests to be successful, the requester has to show that ICANN’s board did not have all the facts at its disposal, or failed to consider them, when it made its decision.
Having read through the recently published minutes and board briefing materials from the meeting at which the program was approved, the Coalition thinks it now has a stronger case.
Its latest filing accuses ICANN of failing to adequately investigate Employ Media’s claims about its program and of brushing off critics as “a bunch of sore losers that were afraid of a little competition”.
Referring to the universe.jobs plan and the “self-managed” domains, the Coalition wrote:

There is no indication that the ICANN Staff provided the Board with any analysis of this critical issue, or that the Board considered this material issue

It also wonders aloud whether the Board was even aware of the universe.jobs plan when the allocation program was approved back in August.
I may be reading it incorrectly, but it appears that ICANN’s board governance committee, which handles Reconsideration Requests, may be coming around to the Coalition’s way of thinking.
The BGC recently sent Employ Media’s sponsor, the Society For Human Resource Management, a list of questions about the program, including this one:

Did the SHRM PD Council intend to enable the Registry (Employ Media) to register domain names in the .JOBS sTLD for the purpose of allowing third-party job postings on those sites? If so, please explain how this consistent with the .JOBS Charter.

I’ll be interested in reading its response.

Employ Media answers .jobs critics

The .jobs registry has responded to insinuations from its critics that it set out to break its own sponsorship rules with a plan to open up the TLD to generic and geographic domain names.
In a filing with ICANN (pdf), Employ Media denies that its liberalization program would permit people from outside the human resources sector to register domains, in violation of its Charter.

Employ Media categorically rejects such allegations as unfounded speculation, and made solely to delay the launch of the .JOBS Phased Allocation Program.

The program, which would see non-companyname .jobs registrations allowed for the first time, has already been approved, but a Reconsideration Request was filed by the .JOBS Charter Compliance Coalition in an effort to get the decision reversed.
The Coalition is an ad-hoc group of jobs boards that believe Employ Media’s plans could harm their businesses by attracting users of nursingjobs.com (for example) to nursing.jobs.
Employ Media plans to allocate thousands of premium domains such as these to the DirectEmployers Association, in order to feed traffic to a huge free jobs board at universe.jobs.
The Coalition sent ICANN a list of questions for Employ Media, and ICANN followed up last week with 13 of its own questions, all of which seem to dance around the issue of whether this was kosher.
The registry’s responses, published by ICANN a couple of days ago (and subsequently disappeared), basically deny that it has done anything that would allow non-Charter registrants into its TLD.
It also seeks to put distance between itself and DirectEmployers:

At the time of the 5 August 2010 Board action [approving the program], Employ Media did NOT have any intention of registering names under the Phased Allocation Plan to any entity other than Employ Media.

That appears to be a roundabout way of describing its original plan to register all the premium names to itself, but to allow DirectEmployers to use them, basically hacking its own registry contract.
Universe.jobs, for example, is registered in Employ Media’s own name, but appears to be primarily operated by DirectEmployers (blog posts from Employ Media executives notwithstanding).