Interpol wants to join the GAC

Interpol plans to apply to join ICANN’s Governmental Advisory Committee as an observer, according to ICANN.
The news came in a press release this evening, detailing a meeting between ICANN president Rod Beckstrom and Interpol secretary general Ronald Noble.
The meeting “focused on Internet security governance and enhancing common means for preventing and addressing Internet crime”. Beckstrom said in the release:

We seek the active engagement of law enforcement in our multi-stakeholder community where all parties are welcome. We recognize Interpol as an important international leader in this field. We are very pleased by its expression of interest in joining the ICANN Governmental Advisory Committee as an observer.

The GAC already has about 20 members with “observer” status, which can be granted to any intergovernmental or treaty organization.
Also in attendance at the meeting in Lyons, France, was ICANN’s new chief of security, Jeff Moss, VP of government affairs Jamie Hedlund, and Alice Jansen of its Organizational Reviews unit.
Law enforcement has been trying to get a louder voice at ICANN for some time, and calls have grown in volume given the increasing use of domain names as tools to shut down crooks.
At ICANN’s recent meeting in San Francisco, Interpol’s top cop on the child abuse imagery beat, Michael Moran, launched a withering critique of what he saw as the industry’s failure to help police the web.
Moran called for a system to be put in place for law enforcement to more easily be able to shut down peddlers of such content and more easily track the abusers.

Poor nation support crucial to new TLD talks

Whether to provide discounts for new top-level domain applicants from poor countries has become a critical obstacle in the process of getting ICANN’s new gTLD program approved.
Not only are its policy-making bodies going through a bout of infighting over proposals to help developing nations, but it is also being seen as a “major political risk” to ICANN’s global credibility.
Sources say that the Governmental Advisory Committee is increasingly concerned that a lack of support for poorer nations could used to bash the gTLD program and discredit ICANN itself.
There are fears that the Group of 77 could use the perception that ICANN works primarily for the benefit of the developed world to push for more UN-based governmental control of the internet.
These concerns were apparently raised during the ICANN Board-GAC teleconference on Friday, and will continue to be discussed in the run-up to the Singapore meeting.
Merely applying for a new gTLD will cost a minimum of $185,000 in direct ICANN fees, potentially rising dramatically in the case of complex or contested applications.
That sum also excludes the many more hundreds of thousands of dollars required to create an application that meets ICANN’s stringent financial and technical stability demands.
Many have estimated that an application for a new gTLD could require an first-year outlay of easily over $1 million.
Unsurprisingly, this may exclude applicants from poorer nations, particularly non-profit and community-based initiatives.
There’s a worry that if support mechanisms are not in place for the first round of applications, culturally or commercially valuable IDN gTLDs will get snapped up by wealthy western companies.
Warning: More Acronyms Ahead
To come up with solutions to this problem, ICANN in April 2010 asked for what is now called the “Joint SO/AC Working Group on New gTLD Applicant Support” – JAS for short.
JAS was chartered by, and comprised of members of, the Generic Names Supporting Organization and the At Large Advisory Committee, two of ICANN’s policy bodies.
Earlier this month, JAS submitted its draft second milestone report (pdf) was submitted to the ICANN board. It’s more of a collection of ideas than a structured framework for applicant support.
It calls for, among other things, fees and financial commitments reduced by as much as three quarters for applicants from about 50 poor nations, if they can show they are (essentially) worthy and needy.
It also suggests that such applicants could have their requirements to support the new DNSSEC and IPv6 technologies from day one – which would raise start-up costs – eliminated.
Unfortunately, the GNSO and ALAC apparently had quite different expectations about what the JAS would produce, and since January the group has been working under a split charter.
Registries and registrars were (and are) worried that JAS was going too far when it recommended, for example, discounted application fees.
Because ICANN has priced applications on a cost-recovery basis, there’s a real concern that discounts for poor applicants will translate into higher fees for wealthier applicants.
Broadly, it’s an example of the usual tensions between commercial domain name industry stakeholders and other groups playing out through quite arcane due process/jurisdictional arguments.
For the last couple of weeks, this has manifested itself as a row about the fact that JAS submitted its report the report was submitted to the ICANN board before it was approved by the GNSO.
Mind The GAC
If it’s the case, as sources say, that the GAC is urgently pressing for applicant support measures to be available in the first round of new gTLD applications, this puts another question mark over ICANN’s ability to approve the Applicant Guidebook in Singapore a month from now.
The GAC “scorecard” of problematic issues has since November stated that ICANN should adopt the findings of the JAS.
But today the JAS is nowhere near producing a comprehensive solution to the problem. Its recommendations as they stand are also unlikely to attract broad support from registry/registrar stakeholders.
Many of its current suggestions are also highly complex, calling for ICANN to establish special funds, staggered payment or repayment programs and additional applicant background checks.
They would take time to implement.
There’s been some talk about the idea that ICANN could approve the Applicant Guidebook before the JAS work is complete, but I’m not sure how realistic that is or whether it would receive the GAC blessing.
If the GAC is worried that ICANN’s very legitimacy could be at risk if it goes ahead with the program before the developing world is catered for, we could be looking at another big roadblock.

Still no new TLDs agreement with GAC

ICANN and its Governmental Advisory Committee have yet to resolve their differences over the new top-level domains program, putting a question mark over the current approval timetable.
In a joint statement released early this morning, following a teleconference on Friday, the ICANN board and GAC confirmed that their talks have not yet concluded.
But ICANN still thinks approval of the program’s Applicant Guidebook could come by June 20, the second day of the forthcoming Singapore meeting:

The latest discussion and ICANN Board and GAC agreement on the benefits of having a face-to-face meeting in Singapore pave the way to possible Board consideration of program approval on 20 June 2011.

This seems to serve as confirmation that the board and GAC will meet for a last-ditch attempt at compromise on June 19. ICANN has already moved around schedules to accommodate the meeting.
Outstanding areas of disagreement continue to include rights protection mechanisms for trademark holders and processes for governmental objections to controversial TLD applications.
Negotiations so far have comprised at least four days of face-to-face talks over the last few months, which had mixed results.
ICANN has given a lot of ground already, but it seems that it has not gone far enough for the GAC. Chair Heather Dryden said in the statement:

the GAC appreciates the time taken by the Board to discuss remaining issues on the call and looks forward to continued progress as a clear signal that the Board is committed to enabling the formulation of true community consensus in developing policy that is in the global public interest as well as increasing the overall accountability and transparency of the organization.

The current talks take place against the backdrop of the renewal of ICANN’s IANA contract with the US Department of Commerce and NTIA, which gives ICANN many of its powers.
Larry Strickling, head of the National Telecommunications and Information Administration, has publicly indicated that he may use the renewal as leverage to squeeze concessions from ICANN.
Two weeks ago, he said that he was “unclear” about whether June 20 was a realistic target for Guidebook approval.
Recently, Strickling also met with European Commissioner Neelie Kroes where they found common ground on new gTLDs and ICANN’s accountability and transparency goals.

.brand TLDs still face barriers

Companies planning to apply for “.brand” top-level domains still have concerns that ICANN’s new gTLD program does not adequately cater to their unique requirements.
ICANN has so far resisted calls from the likes of the Coalition for Online Accountability to create clearly delineated categories of gTLD, instead favoring the one-size-fits-all approach.
But one type of gTLD where the Applicant Guidebook has started to introduce exceptions to the rules is the so-called “.brand”.
In its latest draft, for example, the Guidebook’s Code of Conduct for vertically integrated registries/registrars does not apply to single-registrant TLDs such as .brands.
The Guidebook also makes it mostly clear that ICANN does not intend to re-assign .brands to different registry operators in the event that the brand decides to discontinue the TLD.
But those who are working with potential .brand applicants still have concerns.
Co-existence
Arguably biggest outstanding problem to emerge from the latest set of comments filed with ICANN is the notion of “co-existence”, raised by the likes of Valideus, ECTA and the Business Constituency.
The Guidebook currently calls for TLDs that are potentially confusing in meaning or appearance to be lumped into the same “contention sets” from which only one winner will emerge.
The worry is that this will capture companies with similar sounding brands. ECTA called for a mechanism to exclude .brands from these requirements:

The Draft Applicant Guidebook 6 does not take into account either co‐existence agreements or natural co‐existence. Currently a successful application from NBC in round one would preclude ABC or BBC or NBA in future years. Equally, should both EMI, the music company and ENI, the energy company apply, they would be placed in a Contention Set and could in theory face each other in an auction. In the real world these companies co‐exist.

It’s an interesting point, and not one that’s received a great deal of airplay in recent discussions.
There’s also the problem that companies with two-letter brands, such as HP or BP, are essentially banned from getting their .brand, because there’s a three-letter minimum on new TLDs.
Geographic name protections
The ICANN Governmental Advisory Committee has pushed hard for the protection of geographical terms at the second level in new gTLDs, and has won significant concessions.
One of the results of this is that if Canon, say, has .canon approved, it will be unable to immediately use usa.canon or japan.canon domains names – one of the most logical uses of a .brand.
ICANN plans to enable registries to loosen up these restrictions, but the Guidebook does not currently spell out how this will happen, which leaves a significant question mark over the value of a .brand.
ECTA wrote in its comments to ICANN:

This prohibition severely limits brand owners unnecessarily. On the contrary a .brand domain should provide clients with an intuitive replacement for ccTLDs. It would seem to be more logical if Internet users could replace www.mycompany.de with www.de.mycompany rather than having to type www.mycompany/de.

Registrar discrimination
The BC has called for the Guidebook to be rephrased to made it clear that .brand TLDs should not have to offer their domains through a multitude of registrars on “non-discriminatory” terms.
The BC wants this language adding to the rules: “Single-Registrant TLDs may establish discriminatory criteria for registrars qualified to register names in the TLD.”
Given .brands will have essentially one customer, it would be a pretty crazy situation if more than one registrar was approved to sell them. It may be a hypothetical risk, but this is a strange industry.
UDRP
All new gTLD registries will have to abide by the Uniform Dispute Resolution Process. The problem is that successful UDRP cases generally result in a domain name being transferred to the complainant.
This could result in a situation where a third-party trademark holder manages to win control a domain name in a competitor’s .brand TLD, which would be intolerable for any brand owner.
The BC suggests that domains won in this way should be allowed to be set to “reserved and non-resolving” instead of changing hands.

Governments back Olympic domain bans

ICANN’s Governmental Advisory Committee has called for a ban on domain names containing terms relating to the Red Cross and Olympics movements.
Both organizations have for some time been calling for their trademarks to be added to the list of specially reserved strings that nobody will be able to register under new top-level domains.
The GAC “strongly supports” these demands.
In a piece of uncharacteristically straightforward advice (expect much more of this in the wake of the .xxx decision), GAC chair Heather Dryden wrote to ICANN:

The GAC advises the ICANN Board to approve these requests and to direct staff to reflect the Board’s approval in the May 30, 2011 version of the Applicant Guidebook.

It’s special pleading, of course, but there’s plenty of precedent for the Olympics, Red Cross and Red Crescent being given special protection under national laws, as Dryden notes in her letter.
I’d guess that this is a bone ICANN may be willing to throw, given that it has more important unresolved issues still to discuss with the GAC, some of which could delay the new gTLD program.
The Applicant Guidebook’s current list of reserved names includes the names of ICANN and related organizations, several terms used in networking, and country names.

The 10 dumbest moments from that new TLDs Congressional hearing

The US House of Representatives last week held an oversight hearing into ICANN’s new top-level domains program.
As I may have mentioned, the House Subcommittee on Intellectual Property, Competition and the Internet hearing was set up to be pretty one-sided stuff.
It was clear from the start that ICANN senior vice president Kurt Pritz was going to have his work cut out, given how the panel of five other witnesses was loaded against him.
But as the hearing played out, it quickly became apparent that the real challenge lay not with his fellow witnesses — most of whom were either sympathetic to ICANN from the outset or occasionally forced to leap to its defense — but with the members of the Subcommittee.
While some Congressmen had merely bought into the positions of the trademark lobby, others were so far out of their depth you couldn’t even see the bubbles.
Here, in purely my personal opinion and in no particular order, are the Top 10 Dumbest Moments.
1. Chairman Goodlatte buys the FUD
Subcommittee chairman Bob Goodlatte’s opening statement appeared to have been written with significant input from the intellectual property lobby.
At the very least, he seemed to have accepted some of the more extreme and questionable positions of that lobby as uncontroversial fact.
Two examples:

With every new gTLD that is created, a brand holder will be forced to replicate their internet domain portfolio.
…
The roll-out of these new gTLDs will also complicate copyright enforcement, making it harder and more costly to find and stop online infringers.

He also, on more than one occasion, advocated a “trademark block list” – the Globally Protected Marks List, an idea even the ICANN Governmental Advisory Committee has now rejected.
2. Whois privacy services are Bad
A couple of Congressmen and a couple of witnesses stated that Whois accuracy needs to be enforced more stringently by ICANN, and that Whois proxy/privacy services help criminals.
I took the liberty of doing Whois queries on the official campaign web sites of all 25 members of the Subcommittee, and found that 11 of them use privacy services.
That’s 44% of the committee. Studies have estimated that between 15% and 25% of all registrations use proxy/privacy services, so Congressmen appear to be relatively hard users.
Here’s the list:
Rep. Steve Chabot, Rep. Darrell Issa, Rep. Mike Pence, Rep. Jim Jordan, Rep. Ted Poe, Rep. Jason Chaffetz, Rep. Ben Quayle, Rep. Ted Deutch, Rep. Jerry Nadler, Rep. Zoe Lofgren, Rep. Tim Griffin.
It also turns out that dei.com, the domain name Rep. Issa bragged about owning during the hearing, has phoney data in its Whois record.

You can report him to ICANN here, if you’re so inclined.
It’s likely, of course, that these domains were registered by their staff, but I think we’re allowed to hold Congressmen to at least the same high standard they expect of the rest of us.
3. New TLDs will help porn typosquatters
Mei-lan Stark, an IP lawyer from Fox and the International Trademark Association, used the recent UDRP case over myfox2detroit.com as an example of abuse that could happen in new TLDs.
The domain directed visitors to a porn-laden link farm and was rightly deemed by WIPO to be confusingly similar to myfoxdetroit.com, the genuine Fox 2 Detroit site.
But, as Pritz pointed out later in the hearing, myfox2detroit.com is a .com domain. It’s not in a “new” TLD.
Fox, it transpires, has not registered the string “myfoxdetroit” in any other gTLD. Neither have the cybersquatters. It’s clearly not a brand that is, or needs to be, on Fox’s defensive registrations list.
That said, the “typo” myfoxdetroit.co, along with several other Fox .co domains, has been actually cybersquatted, so maybe Stark had a point.
4. Say Watt?
Rep. Mel Watt, the Subcommittee’s ranking member, couldn’t get a handle on why the pesky foreigners aren’t able to use their own non-Latin scripts in existing gTLDs.
I was beating my head against my desk during this exchange:

[After Stark finished explaining that she thinks IDN gTLDs are a good idea]
Watt: So, you think other languages. And that can’t be done in the .com, .net lingo as well?
Stark: Not today. Not the way the system is currently.
Watt: Yeah, well, not the way it’s done today, but what’s the difference? You all keep talking about innovation. Changing somebody’s name is not innovation. Allowing somebody to use a different name is not innovation. That’s not adding anything new to life that I can tell. Mr DelBianco, Mr Metalitz, help me here.
DelBianco: You’re right, just adding a new label to an existing page or content doesn’t really truly create innovation. However, 56% of the planet cannot even type in the domain name…
Watt [interrupting]: That’s not a function of whether you call something “Steve” or whether you call it “net” is it? You can put the Steve in front of the net, or you can put it dot-net, dot-Steve, dot-Watt, Steve, Steven…. you haven’t really created anything new have you?
DelBianco: You haven’t there, but 56% of our planet can’t use our alphabet when they read and write…
Watt [interrupting]: Tell me how this is going to make that better as opposed to what we have right now.
DelBianco: For the first time an Arabic user could type an entire email address in all Arabic, or a web site address in all Arabic.
Watt [interrupting]: Why can’t the current system evolve to do that without new gTLDs?

To Watt’s credit, he did put the witnesses on the spot by asking if any of them were opposed to new gTLDs (none were), but by the time his five minutes were up he was in serious danger of looking like a stereotypically insular American politician.
5. New TLDs are like T-shirts (or something)
Almost everything the NetChoice Coalition’s Steve DelBianco said, whether you agree with his positions or not, was sensible.
But when he started producing props from under the table, including one of the bright yellow custom “TLD-shirts” that AusRegistry International has been printing at recent ICANN meetings, I was giggling too hard to follow his train of thought.
Apparently the new TLDs program is like a T-shirt printing machine because, well… a T-shirt printing machine is more complicated than a label maker, which was the visual simile DelBianco used last time he appeared before the Subcommittee.
It was fun to see Congressmen treated like five-year-old kids for a minute. God knows some of them deserved it.
6. New TLDs will cost Fox $12 million
Stark stated that Fox has about 300 trademarks that it will need to enforce in new TLDs. Given ICANN has predicted 400 new TLDs, and estimating $100 per defensive registration, she “conservatively” estimated that Fox will have to pay $12 million to protects its marks in the first round.
Really?
The same ICANN study that estimated 400 applications being filed in the first round also estimated that as many as 200 of them are likely to be “.brand” TLDs in which Fox will not qualify to register.
A substantial proportion of applications are also likely to have a “community” designation and a restricted registrant policy that, in many cases, will also exclude Fox.
Does Fox really also need to register 300 brands in every city TLD or linguistic TLD that will be approved? Does Fox News broadcast in Riga? Does it have a Basque language TV station?
Not even World Trademark Review was convinced.
7. China is going to take over the internets
The Subcommittee spent far too much time talking around this meme before deciding that China is a sovereign nation that can do pretty much whatever it wants within its own borders and that there’s nothing much a House committee can do about it.
8. Literally everything that came out of Rep. Issa’s mouth
Former car alarm entrepreneur Darrell Issa talked confidently, as if he was the guy on the committee with the geek credentials, but pretty much everything he said was witless, impenetrable waffle.
He started with the premise that it costs a “fraction of a fraction of a fraction of a fraction of a penny” to route traffic to an IPv6 address (why this is relevant, he didn’t say), then asked:

Why, when I go to Go Daddy, do I have to pay between $10 and $10,000 for a name and not from a tenth of a cent to 10 cents for a name?
…
Why in the world are there so many reserved [ie, registered] names? If I want a good name from Go Daddy… the good names, that I might want, have been already pre-grabbed and marketed in an upward way, higher. Why is it that they’re not driven down? Real competition would imply that those names are driven down to a penny for a user and prohibited from being camped on in order to resell.

Issa is a Republican, so I was quite surprised to hear him apparently advocate against the free market and the rule of supply and demand in this way, and with such a poor grasp of the economics.
Issa’s premise that it costs an imperceptible fraction of a cent to resolve a domain may be true, but only if you’re talking about a single resolution. VeriSign alone handles 57 billion such queries every day.
It adds up. And that’s just resolution, ignoring all the costs carried by the registries and registrars, such as payment processing, security, marketing, Whois (and, in the case of Issa’s domains, Whois privacy and accuracy enforcement), paying staff, rent, facilities, hardware, bandwidth…
Pritz told Issa as much, but he didn’t seem interested in the answer. He instead turned to CADNA’s Josh Bourne, to ask a meandering question that, after listening to it several times, I still don’t understand.
9. Rod Beckstrom gets paid millions
Rep. Maxine Waters was very concerned that ICANN CEO Rod Beckstrom has a salary of over $2 million, “guaranteed”.
She flashed up a copy of what I believe was probably Mike Berkens’ The Domains article about ICANN salaries, from early 2010, but she clearly hadn’t read beyond the headline.
Beckstrom’s salary is $750,000 per annum. He can (and does) get a bonus if he hits his undisclosed performance targets, but it still adds up to less than $1 million a year and pales in comparison to what he’s probably going to earn when he leaves ICANN.
As Berkens accurately reported, Beckstrom has a three-year contract, so he gets a minimum of $2.2 million in total over the period he’s employed as ICANN’s CEO.
People can (and do, continually) question whether he’s earning his money, particularly when he does things like not turning up to Congressional hearings, but his salary is not set at anywhere near the level the Subcommitee heard.
10. This is so important we need more hearings (btw, sorry I’m late)
Several Congressmen called for further hearings on new gTLDs. They’re shocked, shocked, that ICANN is considering doing such a thing.
Some of those calling for further scrutiny weren’t even in the room for much of the hearing, yet saw fit to decree that the subject was so important that they needed more time to investigate.
Whether this turns out to be just more political theater remains to be seen.

US wants to delay new TLDs

With ICANN seemingly hell-bent on approving its new top-level domains program at its Singapore meeting, June 20, the US government wants to slam the brakes.
Congressmen from both sides of the aisle this week said the launch should be put on hold, and yesterday Lawrence Strickling, head of the NTIA, said he does not believe June 20 is realistic.
In a speech before the Global Internet Governance Academic Network, GigaNet, in Washington DC yesterday, Strickling said that ICANN needs to pay more heed to the advice of its Governmental Advisory Committee before it approves the program.

I commend ICANN for its efforts to respond to the GAC advice. Nonetheless, it is unclear to me today whether ICANN and the GAC can complete this process in a satisfactory manner for the Board to approve the guidebook on June 20, 2011, as ICANN has stated it wants to do.

While discussing the ongoing boogeyman threat of an International Telecommunications Union takeover of ICANN’s functions, he added:

Unless the GAC believes that ICANN has been sufficiently responsive to their concerns, I do not see how the Guidebook can be adopted on June 20th in Singapore in a manner that ensures continuing global governmental support of ICANN.

That’s incredibly strong stuff.
Strickling is suggesting that if ICANN rejects GAC advice about what goes into the new TLDs Applicant Guidebook, ICANN may be able to kiss international governmental support goodbye, potentially threatening the organization’s very existence.
And it wasn’t the only threat he raised.
The National Telecommunications and Information Administration is in the process of renewing and possibly amending ICANN’s IANA contract, which gives it the power to introduce new TLDs.
If anyone in any government is in a position to bargain directly with ICANN, it’s Strickling. He tackled this position of power head-on in his speech:

I heard from yesterday’s House hearing that some of the witnesses proposed that we use this contract as a vehicle for ensuring more accountability and transparency on the part of the company performing the IANA functions. We are seriously considering these suggestions and will be seeking further comment from the global Internet community on this issue.

I believe the only witness to raise this issue at the hearing was Josh Bourne of the Coalition Against Domain Name Abuse. He wants a full audit of ICANN before the IANA contract is renewed.
The Congressional “oversight” hearing in question, before the House Subcommittee on Intellectual Property, Competition and the Internet, was not much more than a kangaroo court.
The Representatives in attendance read from prepared statements and from questions they frequently seemed to barely understand, stated fringe opinions as fact, asked inane questions that demonstrated the loosest of grasps on the subject before them, then came to the (foregone) conclusion that the new gTLD program should be delayed pending further work on protecting trademark holders.
I’m not saying these politicians need to be subject matter experts, but if the words “intellectual property” and “the internet” are in your job description, you ought be embarrassed if the words “new BGLTs, or whatever they’re called” come out of your mouth in public.
The Subcommittee has no direct power over ICANN, of course, beyond the fact that it belongs to the legislature of the country where ICANN is based.
But Strickling does.
In his speech yesterday, he also made it quite obvious that the NTIA currently has no plans to push ICANN further along the road to full independence by signing a Cooperative Agreement instead of a procurement contract for the IANA function.
That proposal was made by ICANN CEO Rod Beckstrom, and supported by a small number of others in the industry, including Vint Cerf. But Strickling said:

The fact is, however, that NTIA does not have the legal authority to transition the IANA functions contract into a Cooperative Agreement with ICANN, nor do we have the statutory authority to enter into a Cooperative Agreement with ICANN, or any other organization, for the performance of the IANA functions.

The Beckstrom proposal always seemed like a long shot, but to have it dismissed so casually will surely be seen as a setback on the road to true ICANN independence from the US.

Europe asked the US to delay .xxx

European Commissioner for the Digital Agenda Neelie Kroes asked the US Department of Commerce to delay the introduction of the .xxx top-level domain after ICANN approved it, I can reveal.
In an April 6 letter to Secretary of Commerce Gary Locke, a copy of which I have obtained, Kroes expressed dismay with ICANN’s decision, and wrote (my emphasis):

I would therefore consider it necessary for the [ICANN Governmental Advisory Committee] to reflect, at a senior level, on the broader implications of the Board’s decision on .XXX, and to do so before the TLD is introduced into the global Internet. I assume that the United States government would appreciate the opportunity to hear the views of other countries on this important issue, and I very much hope therefore that I can count on your support for such an initiative.

The letter was sent after ICANN had approved .xxx, but nine days before the National Telecommunications and Information Administration instructed VeriSign to add it to the DNS root.
It seems to be an implicit request for the NTIA to delay .xxx’s go-live date to give the Governmental Advisory Committee of ICANN time to regroup and consider how best to continue to oppose the domain.
As I reported this morning, assistant secretary Lawrence Strickling replied to Kroes later in April, agreeing with her in principle but saying that to intervene could do more harm than good.
Kroes objected on the grounds that GAC had “no active support” for .xxx, that national-level blocking of the TLD could threaten internet stability, and that parents will be given a “false sense of security” if they choose to filter .xxx domain names.
She also didn’t buy ICANN’s rationale for its decision, saying it contained “mostly procedural arguments that do not adequately reflect the significant political and cultural sensitivities” created by .xxx.
She additionally noted that:

Most importantly, perhaps, are the wider consequences that we have all have to deal with as a result of this decision. We are both aware of the broader geo-political Internet governance debate that continues regarding the legitimacy of the ICANN model. I am concerned therefore that ICANN’s decision to reject substantive GAC advice – of which there is also an apparent risk in relation to the new generic TLD process – may be detrimental to the multi-stakeholder, private sector-led model which many of us in the international community have been stoutly defending for years.

This seems to be a reference to the longstanding debate over whether the International Telecommunications Union, or another intergovernmental body, may be better suited to overseeing domain name system policy.
In his reply to Kroes, Strickling offered to meet her by teleconference or in person in Brussels, in order to discuss how to proceed.
The fallout from .xxx’s approval may not be over by a long shot.
UPDATE: Read the Kroes letter: Page One, Page Two.

ICANN brings “loser pays” to domain disputes

ICANN has significantly strengthened brand-owner protections in new top-level domains by proposing, amongst other things, a new “loser pays” model for some cybersquatting disputes.
The Uniform Rapid Suspension process, which is designed to give trademark owners a quick, cheap way to take down obvious examples of cybersquatting, may now occasionally carry a response fee.
According to ICANN’s newly revised Applicant Guidebook, which was published early this morning:

A limited “loser pays” model has been adopted for the URS. Complaints listing twenty-six (26) or more disputed domain names will be subject to an Response Fee which will be refundable to the prevailing party. Under no circumstances shall the Response Fee exceed the fee charged to the Complainant.

In other words, if a somebody registers more than 25 domains that appear to infringe upon the trademarks of a single company, they will have to pay a few hundred dollars, refundable, if they want to defend their case. Judging from UDRP history, this will likely apply to very few people.
The number 25 comes from the May 2009 report of ICANN’s Implementation Recommendation Team, which devised many of the new gTLD program’s rights protection mechanisms.
This change is one of several made in the new Guidebook, addressing concerns raised by the Governmental Advisory Committee, which had consulted closely with the IP lobby.
The GAC didn’t get everything it wanted, however. It had asked for repeat cybersquatters to lose their right to respond under the URS, but ICANN declined, citing the need for due process.
But the Guidebook does now also require new TLD registry operators to offer two types of rights protection mechanism during their launch phase, as the GAC had requested.
Whereas earlier drafts mandated either a Trademark Claims service or a Sunrise period, now registries will have no choice: they have to offer both at a minimum.
The Trademark Claims services notifies registrants if they try to register a domain name that matches a trademark registered in a central Trademark Clearinghouse.
The registrant will have to certify that they’re not infringing any rights before they get the domain. If they do register it, the affected trademark holder will receive a notification that the domain has been registered and can choose to take action such as filing a URS claim.
The idea behind the service is to deter cybersquatters, possibly reducing brand owners’ costs from having to defensively register their names in all new TLDs.
The Sunrise period, which is now also mandatory, is not entirely dissimilar to the sunrise periods we’ve come to expect from new TLD launches over recent years.
The new Guidebook states that the Trademark Claims service must be offered for at least 60 days after a new TLD enters general availability and the Sunrise must be at least 30 days before.
The fact that both services are now mandatory has helped ICANN address the thorny question of what should constitute a valid trademark.
Earlier drafts of the Guidebook required trademarks to have been subject to “substantive review” – a check by a national authority that the trademark is for real and in use.
The worry was that speculators could game the system by picking up large numbers of trademarks in countries that give them away like candy. It’s happened before.
But the review requirement was criticized by the GAC and others as it excluded trademarks in much of the world outside of the US.
In response to these criticisms, ICANN has removed the reference to substantive review. Instead, the yet-to-be-decided manager of the Trademark Clearinghouse will be given the task of validating that each trademark submitted is legit.
Companies need only submit a declaration and a single piece of evidence of use in order to get into the Clearinghouse, thus enabling them to partake of the Sunrise.
No such validation will be required in order to participate in the Trademark Claims service, though brand owners will need to be listed in the Clearinghouse for both mechanisms.
Evidence of use will also be needed to file URS complaints, but that can be done separately at the time of filing, with no need for a Clearinghouse registration.
ICANN chairman Peter Dengate Thrush, himself an IP lawyer, once stated, possibly in jest, that no matter what you do, you can be certain that IP lawyers will demand more protections.
Whether the rights protections mechanisms included in the Guidebook are now sufficient to calm trademark interests’ nerves remains to be seen.

ICANN gives governments powers over new TLDs

ICANN has made some significant concessions to government demands in the newly published revision of its new top-level domains Applicant Guidebook.
After lengthy consultations with its Governmental Advisory Committee over the last few months, ICANN has updated the rulebook to address the vast majority of GAC concerns.
We’ve gone from the “proposed final Applicant Guidebook” published in November to the “April 2011 Discussion Draft” that appeared on the ICANN web site in the wee hours of this morning.
On first perusal, it appears that ICANN has walked the fine lines between GAC advice, hard-fought community consensus and common sense more or less successfully.
While the new Guidebook gives plenty of ground to the GAC, making it a more integral part of the new TLDs approval process, it avoids adopting some of its more problematic requests.
In this post, I’ll look at the powers ICANN has given to governments to object to TLDs.
Early Warning System
While ICANN has sensibly not given individual governments the right to veto TLDs they are not happy with, they do get substantially more input into the approval process than in previous drafts.
The major update to the Guidebook is a new Early Warning system that will allow governments to pre-object to TLDs they don’t like.
An Early Warning, which can only be filed by the GAC chair, is “an indication that the application is seen as potentially problematic by one or more governments.”
Applicants in receipt of such a warning will have 21 days to decide whether to drop out of the process, receiving a $148,000 refund, 80% of their $185,000 application fee.
But they won’t have to. The warning is just a heads-up that the GAC or some of its members may formally object at a later stage. A warning does not represent a GAC consensus position.
The Early Warning process will run for 60 days, at the same time as the public comment period that begins the day the applications are published.
Advice of Doom
Any applicants that decide to ignore such a warning face the possibility of receiving a formal GAC objection, which could come at any point in the first seven months after the applications are published.
This is now being called “GAC Advice on New gTLDs”. It could be quite a powerful tool:

GAC Advice on New gTLDs that includes a consensus statement from the GAC that an application should not proceed as submitted, and that includes a thorough explanation of the public policy basis for such advice, will create a strong presumption for the Board that the application should not be approved.

This is pretty close to a GAC veto, but it crucially requires GAC consensus. The Guidebook explains:

GAC Advice on New gTLDs should identify objecting countries, the public policy basis for the objection, and the process by which consensus was reached.

Even if the GAC reaches consensus, the ICANN board will be able to overrule its objections in accordance with its bylaws, in much the same way it just did with .xxx (in practice, I suspect .xxx may ultimately prove a fairly unique exception to the rule).
The Guidebook indicates that any wishy-washy, non-consensus, politician-speak advice given by the GAC will not be considered grounds for rejecting an application. The objection must be specific, grounded, and it must have support.
Importantly, ICANN has not conceded to the GAC’s request to allow applicants to amend their applications to remedy the GAC’s concerns.
As I noted earlier in the week, this could have led to companies gaming the system, and ICANN has ruled out amendments for precisely that reason.
Freebies
Individual governments will of course be allowed to object to any application using any of the other procedures that the Guidebook allows, such as the Community Objection.
ICANN’s problem is that these processes carry third-party fees, and governments don’t think they should have to pay these fees (for some reason that’s never been adequately explained).
Addressing this concern, the new Guidebook says that ICANN will cover each national government to the tune of $50,000 to fund a single objection.
That’s a total of potentially well over $1 million, funded from ICANN’s reserves. ICANN expects that governments will coordinate their objections to limit its costs.
Overall, it appears that ICANN has addressed pretty much everything the GAC wanted in terms of objections procedures. With a couple of reasonable exceptions, the GAC has received what it asked for.
Members may not be completely happy with ICANN’s decrees on what form GAC advice must take in order to have a useful impact, but in general it seems that this could well now be a closed issue.
In my next post, I’ll look at how intellectual property protection changes in the new Guidebook.