dotgay loses third .gay appeal

Death warrant or portent of impending legal action?
dotgay LLC has lost its third attempt to get ICANN to reconsider tossing its application for community priority status in the fight for the .gay gTLD.
According to ICANN, on Sunday its Board Governance Committee threw out dotgay’s third Request for Reconsideration, an attempt to give the company an unprecedented third go at the Community Priority Evaluation process.
CPEs allow community gTLD applicants to avoid expensive auctions, but dotgay has lost two primarily on the grounds that its definition of community includes people who are not gay.
Its latest RfR was pretty weak, based on a technicality about which staffers at the Economist Intelligence Unit (which carries out the CPEs) were in charge of verifying its letters of community support.
The rationale for the BGC’s determination, which still needs to be rubber-stamped by the full ICANN board, has not been published yet.
But it seems from a blog post that ICANN now expects .gay to go to auction, where there are four competing applicants in total.
ICANN does not usually publish blog posts on RfR decisions, but in the .gay case it has been keen to avoid being accused of any motivation beyond a dogged pursuit of correct procedure.
So will dotgay go quietly? It remains to be seen.
While all new gTLD applicants had to sign a release promising not to sue ICANN, .africa applicant DotConnectAfrica sued earlier this year and managed to get a sympathetic judge who seems bent on allowing the case to go to trial.

Verisign to get .com for six more years, but prices to stay frozen

ICANN and Verisign have agreed to extend their .com registry contract for another six years, but there are no big changes in store for .com owners.
Verisign will now get to run the gTLD until November 30, 2024.
The contract was not due to expire until 2018, but the two parties have agreed to renew it now in order to synchronize it with Verisign’s new contract to run the root zone.
Separately, ICANN and Verisign have signed a Root Zone Maintainer Agreement, which gives Verisign the responsibility to make updates to the DNS root zone when told to do so by ICANN’s IANA department.
That’s part of the IANA transition process, which will (assuming it isn’t scuppered by US Republicans) see the US government’s role in root zone maintenance disappear later this year.
Cunningly, Verisign’s operation of the root zone is technically intermingled with its .com infrastructure, using many of the same security and redundancy features, which makes the two difficult to untangle.
There are no other substantial changes to the .com agreement.
Verisign has not agreed to take on any of the rules that applies to new gTLDs, for example.
It also means wholesale .com prices will be frozen at $7.85 for the foreseeable future.
The deal only gives Verisign the right to raise prices if it can come up with a plausible security/stability reason, which for one of the most profitable tech companies in the world seems highly unlikely.
Pricing is also regulated by Verisign’s side deal (pdf) with the US Department of Commerce, which requires government approval for any price increases until such time as .com no longer has dominant “market power”.
The .com extension is now open for public comment.
Predictably, it’s already attracted a couple of comments saying that the contract should instead be put out to tender, so a rival registry can run the show for cheaper.
That’s never, ever, ever, ever going to happen.

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.

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.

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.

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).

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.

.sucks terminates Com Laude as “gag order” row escalates

Vox Populi, the .sucks gTLD registry, has terminated the accreditation of brand protection registrar Com Laude as part of an ongoing dispute between the two companies.
Com Laude won’t be able to sell defensive .sucks registrations to its clients any more, at least not on its own accreditation, in other words.
The London-based registrar is transferring all of its .sucks domains to EnCirca as a result of the termination and says it is considering its options in how to proceed.
The shock move, which I believe to be unprecedented, is being linked to Com Laude’s long-time criticisms of Vox Populi’s pricing and policies.
The registrar today had some rather stern words for Vox Pop. Managing director Nick Wood said in a statement:

We have always been critical of this registry and particularly its sunrise pricing model which we regard as predatory. We have advised clients where possible to consider not registering such names. We hope that all brand owners will think twice before buying or renewing a .sucks domain. After all, it is not possible to block out every variation of a trademark under .sucks. In our view, fair criticism is preferable to dealing with Vox Populi.

Ouch!
The termination is believed to be linked to controversial changes to the .sucks Registry-Registrar Agreement, which Vox Pop managed to sneak past ICANN over Christmas.
One of the changes, some registrars believed, would prevent brand protection registrars from openly criticizing .sucks pricing and policies. They called it a “gag order”.
Com Laude SVP Jeff Neuman was one of the strongest critics. I believe he was a key influence on a Registrar Stakeholder Group letter (pdf) in January which essentially said registrars would boycott the new RRA.
That letter said:

It’s ironic for a Registry whose slogan is “Foster debate, Share opinions” has now essentially proposed implementing a gag order on the registrars that sell the .sucks TLD by preventing them from doing just that

While the RRA dispute was resolved more or less amicably following ICANN mediation, with Vox Pop backpedaling somewhat on its proposed changes, Com Laude now believes the registry has held a grudge.
Its statement does not say what part of the .sucks RRA it is alleged to have breached.
Vox Pop has not yet returned a request for comment. I’ll provide an update should I receive further information.
Com Laude said in a statement today:

Jeff Neuman, our SVP of our North American business, Com Laude USA, led the effort in the Registrar Stakeholder Group to quash proposed changes to Vox Populi’s registry-registrar agreement, in order to protect the interests of brand owners and the registrars who work with them. Since then, Vox Populi has accused Com Laude of breaching the terms of the registry-registrar agreement, a claim we take seriously and refute in its entirety. We are now considering our further options.

Wood added:

We have informed our clients of the action being taken and all have expressed their support for the manner in which we have handled it. We are pleased to have received messages of support from across the ICANN community including other registry operators. Clearly there is strong distaste at the practices of Vox Populi.

Strong stuff.

Judge throws out DotConnectAfrica’s case against ZACR

South African registry ZACR did not engage in a fraudulent conspiracy with ICANN to get its .africa gTLD application approved, a court ruled yesterday.
The California judge in the case of DotConnectAfrica vs ICANN and ZACR threw out all of DCA’s claims against ZACR, approving ZACR’s motion to dismiss.
The judge said DCA had failed to make claims for fraud, contract intereference and unfair competition.
He also threw out DCA’s demand for ZACR’s .africa Registry Agreement to be scrapped.
The case is not over, however.
DCA’s claims against ICANN still stand and ICANN, perhaps regrettably, withdrew its own motion to dismiss the case weeks ago. The case still looks like heading to trial.
DCA reckons ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of its new gTLD application contract.
The judge has already ruled that the litigation waiver DCA signed when it applied for .dotafrica .africa may be unenforceable.
He also based a decision to give DCA’s claims the benefit of the doubt on a huge misunderstanding of the facts, which he has yet to address publicly.
You can read the judge’s latest order here (pdf).
Under an injunction DCA won, .africa cannot be delegated until the case is resolved.

At least one in 10 new gTLDs are shrinking

While the universe of new gTLDs is growing at a rapid clip, DI research shows that at least one in 10 individual new gTLDs are shrinking.
Using zone file data, I’ve also established that almost a third of new gTLDs were smaller June 1 than they were 90 days earlier, and that more than one in five shrunk over a 12-month period.
There’s been a lot written recently, here and elsewhere, about the volume boom at the top-end of the new gTLD league tables, driven by the inexplicable hunger in China for worthless domain names, so I thought I’d try to balance it out by looking at those not benefiting from the budget land-grab madness.
It’s been about two and a half years since the first new gTLDs of the 2012 round were delegated. A few hundred were in general availability by the end of 2014.
These are the ones I chose to look at for this article.
Taking the full list of delegated 2012-round gTLDs, I first disregarded any dot-brands. For me, that’s any gTLD that has Specifications 9 or 13 in its ICANN Registry Agreement.
Volume is not a measure of success for dot-brands in general, where only the registry can own names, so we’re not interested in their growth rates.
Then I disregarded any gTLD that had a general availability date after March 14, 2015.
That date was selected because it’s 445 days before June 1, 2016 — enough time for a gTLD to go through its first renewal/deletion cycle.
There’s no point looking at TLDs less than a year old as they can only be growing.
This whittling process left me with 334 gTLDs.
Counting the domains in those gTLDs’ zone files, I found that:

• 96 (28.7%) were smaller June 1 than they were 30 days earlier.
• 104 (31.1%) were smaller June 1 than they were 90 days earlier.
• 76 (22.7%) were smaller June 1 than they were 366 days earlier.
• 35 (10.4%) were smaller on a monthly, quarterly and annual basis.

Zone files don’t include all registered domains, of course, but the proportion of those excluded tends to be broadly similar between gTLDs. Apples-to-apples comparisons are, I believe, fair.
And I think it’s fair to say that if a gTLD has gotten smaller over the previous month, quarter and year, that gTLD is “shrinking”.
There are the TLDs.
[table id=42 /]
Concerning those 35 shrinking gTLDs:

• The average size of the zones, as of June 1, was 17,299 domains.
• Combined, they accounted for 605,472 domains, down 34,412 on the year. That’s a small portion of the gTLD universe, which is currently over 20 million.
• The smallest was .wed, with 144 domains and annual shrinkage of 12. The largest was .网址 (Chinese for “.website”) which had 330,554 domains and annual shrinkage of 7,487.
• The mean shrinkage over the year was 983 domains per gTLD. Over the quarter it was 1,025. Over the month it was 400.

Sixteen of the 35 domains belong to Donuts, which is perhaps to be expected given that it has the largest stable and was the most aggressive early mover.
Of its first batch of seven domains to go to GA, way back in February 2014, only three — .guru, .singles, and .plumbing — are on our list of shrinkers.
A Donuts spokesperson told DI today that its overall number of registrations is on the increase and that “too much focus on individual TLDs doesn’t accurately indicate the overall health of the TLD program in general and of our portfolio specifically.”
He pointed out that Donuts has not pursued the domainer market with aggressive promotions, targeting instead small and medium businesses that are more likely to actually use their domains.
“As initial domainer investors shake out, you’re likely to see some degradation in the size of the zone,” he said.
He added that Donuts has seen second-year renewal rates of 72%, which were higher than the first year.
“That indicates that there’s more steadiness in the registration base today than there was when first-year renewals were due,” he said.