Donuts makes private deal with wine-makers

Donuts inked a private side-deal with wine-making regions in order to launch the .wine and .vin new gTLDs
The company signed both Registry Agreements with ICANN late last week, after the wine regions and the European Union stopped complaining.
The EU and regions had filed Cooperative Engagement Process objections with ICANN, saying that Donuts should be forced to protect “geographic indicators” such as Napa Valley and Champagne.
CEPs are often precursors to Independent Review Process complaints, but both were dropped after Donuts came to a private deal.
“The CEP filed by the Wine Regions was withdrawn because we came to a satisfactory private arrangement with the Registry concerned, Donuts,” David Taylor of Hogan Lovells, who represented the wine-making regions, told DI.
Details of the deal have not been disclosed, but Donuts does not appear to have committed to anything that could create compliance problems with ICANN in future.
“It has been a successful negotiation between private parties that avoids policy precedents,” Taylor said. “There are no special changes to these registry agreements (e.g., no new PICs)”
PICs are Public Interest Commitments, enforceable addenda to Registry Agreements that oblige the registry to adhere to extra rules.
So are GIs protected in .wine or not? For now, Taylor won’t say.
“My view is that this is not a victory for either side of the GI debate,” he said. “This is a victory for the wine community (consumers and producers) and ultimately the new gTLD program.”

Grogan hopeful of content policing clarity within “a few weeks”

ICANN may be able to provide registrars, intellectual property interests and others with clarity about when domain names should be suspended as early as next month, according to compliance chief Allen Grogan.
With ICANN 53 kicking off in Buenos Aires this weekend, Grogan said he intends to meet with a diverse set of constituents in order to figure out what the Registrar Accreditation Agreement requires registrars to do when they receive abuse complaints.
“I’m hopeful we can publish something in the next few weeks,” he told DI. “It depends to some extent on what direction the discussions take.”
The discussions center on whether registrars are doing enough to take down domains that are being used, for example, to host pirated content or to sell medicines across borders.
Specifically at issue is section 3.18 of the 2013 RAA.
It requires registrars to take “reasonable and prompt steps to investigate and respond appropriately” when they receive abuse reports.
The people who are noisiest about filing such reports — IP owners and pharmacy watchdogs such as LegitScript — reckon “appropriate action” means the domain in question should be suspended.
The US Congress heard these arguments in hearings last month, but there were no witnesses from the ICANN or registrar side to respond.
Registrars don’t think they should be put in the position of having to turn off what may be a perfectly legitimate web site due to a unilateral complaint that may be flawed or frivolous.
ICANN seems to be erring strongly towards the registrars’ view.
“Whatever the terms of the 2013 RAA mean, it can’t really be interpreted as a broad global commitment for ICANN to enforce all illegal activity or all laws on the internet,” Grogan told DI.
“I don’t think ICANN is capable of that, I don’t think we have the expertise or resources to do that, and I don’t think the ICANN multistakeholder community has ever had that discussion and delegated that authority to ICANN,” he said.
CEO Fadi Chehade recently told the Washington Post that it isn’t ICANN’s job to police web content, and Grogan has expanded on that view in a blog post last week.
Grogan notes that what kind of content violates the law varies wildly from country to country — some states will kill you for blasphemy, in some you can get jail time for denying the Holocaust, in others political dissent is a crime.
“Virtually everybody I’ve spoken with has said that is far outside the scope of ICANN’s remit,” he said.
However, he’s leaving some areas open for discussion,
“There are some constituents, including some participants in the [Congressional] hearing — from the intellectual property community and LegitScript — who think there’s a way to distinguish some kinds of illegal activities from others,” he said. “That’s a discussion I’m willing to have.”
The dividing line could be substantial risk to public health or activities that are broadly, globally deemed to be illegal. Child abuse material is the obvious one, but copyright infringement — where Grogan said treaties show “near unanimity” — could be too.
So is ICANN saying it’s not the content police except when it comes to pharmacies and intellectual property?
“No,” said Grogan. “I’m saying I’m willing to engage in that dialogue and have that conversation with the community to see if there’s consensus that some activities are different to others.”
“In a multistakeholder model I don’t think any one constituency should control,” he said.
In practical terms, this all boils down to 3.18 of the RAA, and what steps registrars must take to comply with it.
It’s a surprisingly tricky one even if, like Grogan, you’re talking about “minimum criteria” for compliance.
Should registrars, for example, be required to always check out the content of domains that are the subject of abuse reports? It seems like a no-brainer.
But Grogan points out that even though there could be broad consensus that child abuse material should be taken down immediately upon discovery, in many places it could be illegal for a registrar employee to even check the reported URL, lest they download unwanted child porn.
Similarly, it might seem obvious that abuse reports should be referred to the domain’s registrant for a response. But what of registrars owned by domain investors, where registrar and registrant are one and the same?
These and other topics will come up for discussion in various sessions next week, and Grogan said he’s hopeful that decisions can be made that do not need to involve formal policy development processes or ICANN board action.

Barclays probably not breaching contract, says ICANN compliance chief

Barclays doesn’t seem to have violated its new gTLD registry agreements, despite admitting to criminal charges related to currency manipulation, according to ICANN’s top compliance executive.
Allen Grogan, chief contract compliance officer, told DI today that a “literal” reading of the Registry Agreements for .barclays and .barclaycard would not see the bank in breach.
“As far as I know we haven’t received a formal compliance complaint about it. If we received a complaint we would investigate it,” Grogan said.
“At first blush I wouldn’t see a clear-cut violation of the literal language of the agreement,” he said.
Barclays’ suitability to be a new gTLD registry has come under the spotlight in CircleID blog posts recently, first by domainer George Kirikos and then Internet Commerce Association counsel Phil Corwin.
All RAs contain a provision that allows ICANN to terminate the contract if any officer or director of the registry is convicted of a financially-related misdemeanor or any felony.
Barclays was one of five banks that recently fessed up to felony currency market fixing charges in the US, paying a combined $2.5 billion fine.
However, as Kirikos, Corwin and now Grogan have pointed out, the RA only talks about crimes committed by officers and directors, not the companies themselves.
Grogran pointed out that to hold a corporation accountable for its crimes long after the fact might be a bit excessive.
Criminal employees and directors can be fired, but a company cannot fire itself.
“Does that means for the next hundred years ICANN or no other corporation should do business with them?” he said.

ICANN ponders rejecting all closed generics

ICANN is thinking about rejecting all the remaining “closed generic” new gTLD applications from the current round.
According to minutes of a June 5 New gTLD Program Committee meeting published last night, ICANN is considering two options.
First, it could “prohibit exclusive generic TLDs in this round of the New gTLD Program and consult with the GNSO about developing consensus policy for future rounds”.
Or, it could initiate a “community process… to develop criteria to be used to evaluate whether an exclusive generic applicant’s proposed exclusive registry access serves a public interest goal.”
The NGPC has not yet reached a decision.
The rejection option would be fastest and easiest, but risks the wrath of companies that applied for closed generics — which were always envisaged when the new gTLD rules were being developed — in good faith.
Alternatively, developing a process to measure the applications against the “public interest” would be very time-consuming, possibly not even feasible, and would add even more delay to competing applicants.
This is one of the longest-delayed responses to the Governmental Advisory Committee’s April 2013 Beijing communique, which said “exclusive registry access should serve a public interest goal.”.
Closed generics, which ICANN now calls “exclusive access” gTLDs, are dictionary words that the applicant proposes to keep for itself, allowing no third parties to register names.
There are currently only six new gTLD applications that are stubbornly sticking to their original closed generic position.
Applicants for another 175 gTLDs have either changed their applications to allow third-party registrants or denied that they ever even planned to give themselves exclusive access.
Of the six hold-outs, three are delaying their respective contention sets while ICANN endlessly mulls the problem.
Here’s a table showing the affected strings.
[table id=33 /]
The applicants for the closed generics have each submitted responses explaining why they believe their proposals serve the public interest. They’re largely corporate legalese bibble.

US Congresspeople tell ICANN to ignore GAC “interference”

A bispartisan group of US Congresspeople have called on ICANN to stop bowing to Governmental Advisory Committee meddling.
Showing characteristic chutzpah, the governmental body advises ICANN that advice from governments should be viewed less deferentially in future, lest the GAC gain too much power.
The members wrote (pdf):

Recent reports indicate that the GAC has sought to increase its power at the expense of the multistakeholder system. Although government engagement in Internet governance is prudent, we are concerned that allowing government interference threatens to undermine the multistakeholder system, increasing the risk of government capture of the ICANN Board.

The letter was signed by 11 members of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, which is one of the House committees that most frequently hauls ICANN to Capitol Hill to explain itself.
Most of the signatories are from the Republican majority, but some are Democrats.
It’s not entirely clear where they draw the line between “engagement” and “interference”.
The letter highlights two specific pieces of GAC input that the signatories seem to believe constitute interference.
First, the GAC’s objection to Amazon’s application for .amazon. The letter says this objection came “without legal basis” and that ICANN “succumbed to political pressure” when it rejected the application.
In reality, the GAC’s advice was consensus advice as envisaged by the Application Guidebook rules. It was the US government that succumbed to political pressure, when it decided to keep its mouth shut and allow the rest of the GAC to reach consensus.
The one thing the GAC did wrong was filing its .amazon objection outside of the window envisaged by the Guidebook, but that’s true of almost every piece of advice it’s given about new gTLD applications.
Second, the Congresspeople are worried that the GAC has seized for its members the right to ban the two-letter code representing their country from any new gTLD of their choosing.
I’ve gone into some depth into how stupid and hypocritical this is before.
The letter says that it has “negative implications for speech and the world economy”, which probably has a grain of truth in it.
But does it cross the line from “engagement” to “interference”?
The Applicant Guidebook explicitly “initially reserved” all two-letter strings at the second level in all new gTLDs.
It goes on to say that they “may be released to the extent that Registry Operator reaches agreement with the government and country-code manager.”
While the rule is pointless and the current implementation convoluted, it comes as a result of the GAC engaging before the new gTLD program kicked off. It was something that all registries were aware of when they applied for their gTLDs.
However, the GAC’s more recent behavior on the two-letter domain subject has been incoherent and looks much more like meddling.
At the ICANN meeting in Los Angeles last October, faced with requests for two-character domains to be released, the GAC issued formal advice saying it was “not in a position to offer consensus advice on the use of two-character second level domain names”.
ICANN’s board of directors accordingly passed a resolution calling for a release mechanism to be developed by ICANN staff.
But by the time February ICANN meeting rolled around, it had emerged that registries’ release requests had been put on hold by ICANN due to letters from the GAC.
The GAC then used its Singapore communique to advise ICANN to “amend the current process… so that relevant governments can be alerted as requests are initiated.” It added that “Comments from relevant governments should be fully considered.”
ICANN interpreted “fully considered” to mean an effective veto, which has led to domains such as it.pizza and fr.domains being banned.
So it does look like thirteenth-hour interference but that’s largely because the GAC is often incapable of making its mind up, rarely talks in specifics, and doesn’t meet frequently enough to work within timelines set by the rest of the community.
However, while there’s undoubtedly harm from registries being messed around by the GAC recently, governments don’t seem to have given themselves any powers that they did not already have in the Applicant Guidebook.

Canada shrugs over .sucks

The Canadian trade regulator has sent ICANN a big old “Whatever” in response to queries about the legalities of .sucks.
The response, sent by Industry Canada’s deputy minister John Knubley yesterday, basically says if the intellectual property lobby doesn’t like .sucks it can always take its complaints to the courts.
Other than opening and closing paragraphs of pleasantries, this is all Knubley’s letter (pdf) says:

Canada’s laws provide comprehensive protections for all Canadians. Canada has intellectual property, competition, criminal law and other relevant legal frameworks in place to protect trademark owners, competitors, consumers and individuals. These frameworks are equally applicable to online activities and can provide recourse, for example, to trademark owners concerned about the use of the dotSucks domains, provided that trademark owners can demonstrate that the use of dotSucks domains infringes on a trademark. Intellectual property rights are privately held and are settled privately by the courts.

There’s not much to go on in there; it could quite easily be a template letter.
But it seems that Vox Populi Registry has been cleared to go ahead with the launch of .sucks, despite IP owner complaints, at least as far as the US and Canadian regulators are concerned.
The Federal Trade Commission was equally noncommittal in its response to ICANN two weeks ago.
Vox Populi is based in Canada. It’s still not entirely clear why the FTC was asked its opinion.
ICANN had asked both agencies for comment on .sucks’ legality after its Intellectual Property Constituency raised concerns about Vox Pop’s “predatory” pricing.
Pricing for .sucks names in sunrise starts at around $2,000.
ICANN told DI in April that it was in “fact finding” mode, trying to see if Vox Pop was in breach of any laws or its Registry Agreement.
The .sucks domain is due to hit general availability one week from now, June 19, with a suggested retail price of $250 a year.
If anything, the $250 says much more about Vox Pop’s business model than the sunrise fees, in my opinion.

ICANN Compliance probing Hunger Games domain

ICANN’s Compliance department is looking into whether Donuts broke the rules by activating a domain name for the forthcoming The Hunger Games movie.
Following up from the story we posted earlier today, ICANN sent DI the following statement:

We are well aware of this issue and are addressing it through our normal compliance resolution process. We attempt to resolve compliance matters through a collaborative informal resolution process, and we do not comment on what happens during the informal resolution phase.

At issue is whether Donuts allowed the movie’s marketers to launch thehungergames.movie before the new gTLD’s mandatory 90-day “controlled interruption” phase was over.
Under a strict reading of the CI rules, there’s something like 10 to 12 days left before Donuts is supposed to be allowed to activate any .movie domain except nic.movie.
Donuts provided the following statement:

This is a significant step forward in the mainstream usage of new domains. One of the core values of the new gTLD program is the promotion of consumer choice and competition, and Donuts welcomes this contribution to the program’s success, and to the promotion of the film. We don’t publicly discuss specific matters related to ICANN compliance.

I imagine what happened here is that Donuts got an opportunity to score an anchor tenant with huge visibility and decided to grasp it with both hands, even though distributor Lion’s Gate Entertainment’s (likely immovable) launch campaign schedule did not exactly chime with its own.
It may be a technical breach of the ICANN rules on name collisions — which many regard as over-cautious and largely unnecessary — but it’s not a security or stability risk.
Of course, some would say it also sets a precedent for other registries to bend the rules if they score big-brand backing in future.

.wine no longer blocked after EU drops complaint

Donuts and ICANN are currently in the process of signing new gTLD agreements for .wine and .vin, after the European Union and wine sellers dropped objections.
As of today, both gTLDs are “In Contracting” rather than “On Hold”, according to ICANN’s web site.
ICANN revealed earlier this week that the European Union and various wine trade associations have both dropped their Cooperative Engagement Process complaints.
CEP is less formal precursor to a much more expensive and lawyer-hungry Independent Review Process complaint.
With the CEPs out of the way, Donuts is now free to sign its contracts.
Donuts won the auction for .wine back in November, but its application was frozen due to ongoing arguments about the protection of “geographic indicators” representing wine-making regions.
Governments, particularly in Europe and Latin America, had protested that .wine and .vin should not be allowed to launch until areas such as Rioja and Champagne were given special privileges.
Last October, ICANN CEO Fadi Chehade told the French government that it was negotiating with applicants to get these protections included in the contracts.
Either Donuts has agreed to such protections, or the EU and wine-makers have gotten bored of complaining.
My feeling is the former is probably more likely, which may be controversial in itself.
There is no international agreement on GI protection — the US and Australia opposed the EU’s position on .wine — so this may be seen as a case of ICANN creating new rights where none previously existed.

Is The Hunger Games’ new .movie domain illegal?

Donuts may have launched its best new gTLD anchor tenant in violation of ICANN rules.
The company revealed earlier this week that The Hunger Games movies are using thehungergames.movie to promote the fourth and final installment of the wildly successful “trilogy”.
The domain name even features in the trailer for the film, which currently has over 1.7 million YouTube views.
But it has been claimed that Donuts activated the domain in the DNS two weeks before it was allowed to under its ICANN registry contract.
It boils down to “controlled interruption”, the controversial mechanism by which registries mitigate the risk of potentially harmful name collisions in the DNS.
Under ICANN’s rules for CI, for 90 days registries have to implement a wildcard in their zone file that redirects all domains other than nic.[tld] to 127.0.53.53 and your-dns-needs-immediate-attention.[tld].
“The Registry Operator must not activate any other names under the TLD until after the 90-day controlled interruption period has been completed,” the rules say, in bold text.
Donuts’ .movie was delegated on or around March 26, which means when thehungergames.movie was activated there were still about two weeks left on the .movie CI clock.
As far as I can tell from reading ICANN documentation on CI, there are no carve-outs for anchor tenants.
The .movie zone file has five other domains related to The Hunger Games in it — the only names other than nic.movie — but they don’t seem to resolve.
There’s no actual security or stability risk here, of course.
If .movie had used the old method of blocking a predefined list of identified name collisions, thehungergames.movie would not have even been affected — it’s not on .movie’s list of collisions.
However, if ICANN decides rules have been broken and Donuts is forced to deactivate the domain, it would be a painfully embarrassing moment for the new gTLD industry.
It can perhaps be hoped that ICANN’s process of investigating such things takes about two weeks to carry out.
I’ve contacted Donuts for comment and will provide an update if and when I receive any additional information.

New gTLD trade group launches

A group of new gTLD registries have got together to form the TLD Operator Community, a new “think tank” devoted to the commercial aspects of running new TLDs.
According to its web site:

The TLD Operator Community is designed to provide all new TLD applicants with an opportunity to share their experiences, learn from each other and focus on the commercial realities of operating a TLD – away from the confines of ICANN, policy or technical discussions.

The group appears to be coordinated right now by ARI Registry Services.
The distinction between the TLD Operator Community and the Domain Name Association appears to be that the DNA has more of a focus on outreach and education beyond the industry.
The new group will hold an introductory webinar June 30 (or July 1, depending on your time zone) featuring speakers from Donuts, Vox Populi, dotBerlin, Barclays and others.