Ombudsman dealing with new gTLDs complaint

ICANN Ombudsman Chris LaHatte is investigating a complaint related to the new generic top-level domains program.
Speaking to DI today, LaHatte declined to disclose the nature of the complaint or the identity of the complainant, but said he hoped to have the case resolved in a few weeks.
He may publish an official report about the investigation, he said. This would be the first such report to emerge from the Ombudsman’s office since October 2009.
The often-overlooked Ombudsman is not mentioned at all in the Applicant Guidebook, but it is an avenue open to applicants who believe they’ve been treated unfairly.
LaHatte said it’s “unlikely but conceivable” that he will receive complaints about unfair behavior when applications start being processed – and rejected – later this year.
The Ombudsman’s job is to look into allegations of unfairness in ICANN staff actions or the decisions of its board of directors.
But LaHatte said he believes he would be able to also handle complaints about the program’s outside evaluators, if applicants believe they have been treated unfairly.
“There will be some people who prefer to litigate and some who would prefer to come to me,” he said. “The message I would like to send to the community is that my door is always open.”
But he warned that the Ombudsman is not a “court of appeal” for applicants who simply disagree with adverse decisions.
The Ombudsman job has in the past been criticized for being relatively toothless – the role answers to the ICANN board and has no direct power other than the ability to make recommendations.
LaHatte characterized his ability to effect change as a “moral persuasion”.
He said he’s received 23 complaints so far in January, already double what his predecessor received per month, but many of these will be out his jurisdiction — cases of ICANN being blamed for domain theft or a registrar problem, for example.

ICANN: antitrust law does not apply to us

ICANN says it “does not engage in trade or commerce” and therefore US antitrust laws do not apply to its approval of the .xxx top-level domain, according to court documents.
The organization and .xxx operator ICM Registry yesterday submitted their coordinated responses to the antitrust lawsuit filed by YouPorn owner Manwin Licensing.
ICANN claims it cannot be held liable under antitrust law and ICM has accused Manwin of filing a nuisance lawsuit because it missed its opportunity to secure some premium .xxx domain names.
Manwin sued in November, alleging ICANN and ICM illegally colluded to deliver “monopolistic conduct, price gouging, and anti-competitive and unfair practices”.
The company, which runs the largest porn sites on the internet, claims ICANN should have opened the .xxx contract to competitive bidding and that ICM’s sunrise policies amounted to “extortion”.
It wants a California District Court to shut down .xxx entirely.
But ICANN has now argued that Manwin’s antitrust claims cannot possibly apply to it because it is a charitable, public-interest organization:

ICANN cannot, as a matter of law, be liable under the antitrust laws with respect to the conduct alleged in the Complaint because ICANN does not engage in “trade or commerce.”
…
[ICANN] does not sell Internet domain names, it does not register Internet domain names, and it certainly is not an Internet pornographer. ICANN does not make or sell anything, it does not participate in any market, and its Bylaws expressly forbid it from participating in any of the markets referenced in the Complaint.

Its motion to dismiss (pdf) goes on to say that the introduction of .xxx is actually pro-competition, and that Manwin only sued because it is scared of losing market share.

Plaintiffs claim to be upset with the manner in which ICM is operating the new .XXX registry, but since Plaintiffs already operate (by their own admission) some of the most successful pornographic websites on the Internet, websites that will continue to operate irrespective of anything ICM might do, what the Plaintiffs are really complaining of is the potential competition that their websites may face from the operation of .XXX.

ICM Registry makes similar arguments in its motion to dismiss (pdf):

what Plaintiffs are really complaining about is the fact that they lost the opportunity to purchase the least expensive defensive registry options offered by ICM because they missed the deadline

But ICM also says that the lawsuit falls foul California’s laws against so-called SLAPPs (“strategic lawsuits against public participation”), basically nuisance suits designed to suppress speech.
Declarations from CEO Stuart Lawley (pdf) and marketing director Greg Dumas (pdf) detail conversations between Manwin and ICM in the run-up to the gTLD’s approval and launch.
Manwin managing partner Fabian Thylmann offered to invest in ICM in July 2010, but Lawley declined, according to an ICM exhibit (pdf).
By October 2010 these offers had turned to legal threats, according to Dumas’ declaration:

Manwin saw the introduction of the .XXX sTLD as a threat to Manwin’s dominance over the adult Internet industry. At that time, Thylmann said that he would do whatever he could to stop .XXX. Specifically, Thylmann said that if ICANN approved the .XXX sTLD, Manwin would file a lawsuit against ICM to disrupt its ability to conduct business

Shortly after ICANN’s December 2010 meeting in Cartagena concluded with an ambiguous resolution on .xxx’s future, Thylmann rebuffed Dumas’ overtures about the .xxx Founders Program.
He predicted in an email to Dumas that ICANN’s Governmental Advisory Committee would force ICANN to reject .xxx, adding “the .xxx domain is useless even if it comes to market”, according to an ICM exhibit.
In September 2011, when the .xxx launch was already well underway, Manwin demanded thousands of free premium .xxx domains and a veto over some registry policies, according to Dumas:

Manwin demanded that ICM: allocate a minimum of several thousand .XXX domain names to Manwin free of charge; commit to prevent IFFOR from making any policies that ban or restrict the operation of user-generated content “tube” sites on .XXX domains; grant across-the-board discounts on all .XXX domain registrations; and allow Manwin to operate certain ‘premium’ or high value domain names, such as “tube.xxx,” through a revenue sharing arrangement between Manwin and ICM.

ICM says that these demands were accompanied by legal threats.
The lawsuit and Manwin’s boycott of companies using .xxx domains has harmed ICM’s business, according to the company’s court filings.
The case continues.

End in sight for Go Daddy’s 60-day transfer lock

Go Daddy’s unpopular 60-day domain name lockdown period, which prevents customers moving to other registrars, could be reduced to as little as five days under new ICANN policy.
ICANN’s GNSO Council this week voted to amend the Inter-Registrar Transfer Policy, which is binding on all registrars, to clarify when and how a registrar is allowed to block a transfer.
Today, Go Daddy has a policy of preventing transfers for 60 days whenever the registrant’s name is changed in the Whois record.
It’s designed to help prevent domain name hijacking, but to many customers it’s frustrating and looks shady; as a result it’s one of the most frequently cited criticisms of the company.
Other registrars may have similar policies, but Go Daddy is the only one you ever really hear complaints about.
Some have even posited that the practice violates the IRTP, which explicitly prevents registrars spuriously locking domains when customers update their Whois.
But ICANN’s compliance department has disagreed with that interpretation, drawing a distinction between “Whois changes” (cannot block a transfer) and “registrant changes” (can block a transfer).
Essentially, if you change your name in a Whois record the domain can be locked by your registrar, but if you change other fields such as mailing address or phone number it cannot.
Go Daddy and other registrars would still be able prevent transfers under the revised policy, but they would have to remove the block within five days of a customer request.
This is how ICANN explains the changes:

Registrar may only impose a lock that would prohibit transfer of the domain name if it includes in its registration agreement the terms and conditions for imposing such lock and obtains express consent from the Registered Name Holder: and
Registrar must remove the “Registrar Lock” status within five (5) calendar days of the Registered Name Holder’s initial request, if the Registrar does not provide facilities for the Registered Name Holder to remove the “Registrar Lock” status

Registrars may have some freedom in how they implement the new policy. Unblocking could be as simple as checking a box in the user interface, or it could mean a phone call.
Go Daddy, which was an active participant in the IRTP review and says it supports the changes, supplied a statement from director of policy planning James Bladel:

In the coming months, Go Daddy is making a few changes to our policy for domains in which the registrant information has changed.
We believe this new procedure will continue to prevent hijacked domain names from being transferred away, while making the transfer experience more user-friendly for our customers.

The changes were approved unanimously by the GNSO Council at its meeting on Thursday.
Before they become binding on registrars, they will have to be approved by the ICANN board of directors too, and the soonest that could happen is at its February 16 meeting.
The changes are part of a package of IRTP revisions – more to come in the near future – that have been under discussion in the ICANN community since 2007. Seriously.

25 companies register for new gTLDs

ICANN has just announced that 25 companies have registered with its TLD Application System, one week after it opened the application window for its new generic top-level domains program.
This does not necessarily mean that only 25 gTLDs have been applied for. Each TAS account can handle up to 50 applications, according to ICANN.
We already know that one of the signed-up TAS users is Minds + Machines, and it has applied for 20 gTLDs already.
“I can state firmly that one week into the process, the application system for the new domain names is functioning just as it should,” ICANN CEO Rod Beckstrom said in a press release.
The application window opened January 12 and will close April 12. The deadline for registering with TAS is March 29.
Most registry service providers and other industry observers have predicted 1,000 to 1,500 applications in total, possibly a little more depending how crazy the dot-brand applicants get.
But ICANN isn’t commenting. It stated: “Until [May 1], ICANN will not comment publicly about any specific application, the total number of applications received, or who has submitted applications.”

Stop the nonsense about TLD-squatting

Barely a day has passed recently without a news report about how companies are being forced to apply for new top-level domains to prevent cybersquatters moving in on their brands.
It’s complete nonsense, of course, brought about by a lack of basic research coupled with years of bad feeling towards the domain name industry and an ICANN new gTLDs outreach campaign that spent six months failing to effectively tackle widely held misconceptions.
Cybersquatters are not going to apply for new gTLDs. If they do, they won’t be approved.
Unfortunately, this does not mean that we’re not going to see lots of “defensive” new gTLD applications.
Due to the way the program is structured, it may actually make strategic sense for some companies to apply for a dot-brand gTLD even if they are otherwise pretty clueless about domain names.
It worries me to think that a few years from now the TLD space – which is currently running at almost 100% utilization – will start to resemble the second level in pretty much every major TLD, with lots of essentially unused, redundant defensive domain names.
I don’t think this will be good for the domain name industry or ICANN.
That said, what looks good for ICANN and the domain name industry is of little concern to brand owners – they just want to make sure their brands are not damaged by the program.
I’ve written a 4,500-word paper analyzing the actual need for companies to file “defensive” gTLD applications, which is now available to DomainIncite PRO subscribers.

Little interest in Russian gTLDs?

Despite being given the opportunity to launch top-level domains in Cyrillic script, only a handful of companies from Russia are expected to apply to ICANN for new gTLDs.
That’s according to Andrey Kolesnikov, CEO of Coordination Center for TLD RU, which runs the country’s .ru and .РФ registries.
“There won’t be many applications from Russia, only from about 10 companies,” he said at a recent press conference, while estimating at least 1,000 applications overall.
Just 10 applicants is a surprisingly low estimate, given the resurgence of interest in Russian domain names in 2011.
The year-old .РФ (.rf, for Russian Federation) domain has been a roaring success in volume terms. Launched in late 2010, it now has about a million registered domains.
CC itself is planning to apply for .ДЕТИ, which means “.children” in Russian.
RU-Center, the largest Russian registrar, intends to apply for the city-gTLDs .МОСКВА and .moscow.
Other IDN-friendly nations may be more enthusiastic about new gTLDs. ICANN CEO Rod Beckstrom said last week that he heard that Indian companies could apply for as many as 100.

Two new vice presidents at ICANN

ICANN has appointed two new vice presidents to head up its European and Latin American offices.
British former civil servant Nigel Hickson, who ICANN says has experience working in European Union politics, is the new VP for Europe.
Rodrigo de la Parra, the newly appointed VP for Latin America, is an internal promotion. Since January 2011 he has been ICANN’s Regional Liaison for Latin America.
He formerly held senior positions within Mexican telecommunications regulator Cofetel and was Mexico’s representative on ICANN’s Governmental Advisory Committee.
Both positions are new. The VP of Europe job was originally given to French software executive Thomas Spiller, but he quit before he even started last August.

GAC gets more power to block controversial gTLDs

While the new version of ICANN’s new generic top-level domains Applicant Guidebook contains mostly tweaks, there’s a pretty big change for those filing “controversial” applications.
The Guidebook now grants the Governmental Advisory Committee greater powers to block gTLD applications based on minority government views.
ICANN has adopted poorly-written, ambiguous text approved by the GAC at its meeting in Dakar last October, which lowers the threshold required to force the ICANN board to consider GAC advice.
The changes essentially mean that it’s now much easier for the GAC to force the ICANN board to the negotiating table if a small number of governments object to a gTLD application.
In the September Guidebook, a GAC consensus objection was needed to force the ICANN board to manually approve controversial applications. Now, it appears that only a single country needs to object.
This is the relevant text:

The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.

Applications for .gay, of which there are expected to be at least two, will almost certainly fall into this category.
If you’re applying for a potentially controversial gTLD, you can thank the GAC for the fact that your road to approval is now considerably less predictable.
It’s also worth bearing in mind that the GAC is allowed to file an objection based on any aspect of the application – not just the chosen string.
So, for example, if you’re applying for .bank or .pharma and your application falls short of one government’s expected consumer safeguards, you may also see a GAC “concerns” objection.
In cases where the GAC objects to an application, the ICANN board of directors does have the ability to overrule that objection, if it provides its rationale, much as it did with .xxx.
However, .xxx was a special case, and ICANN today is under a regime much friendlier to the GAC and much more nervous about the international political environment than it was 12 months ago.
Make no mistake: GAC Advice on New gTLDs will carry weight.
This table compares the types of GAC Advice described in the Applicant Guidebook published in September with the one published last night.
[table id=5 /]
It should also be noted that since Dakar the GAC has defined consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”.
In other words, if some GAC members push for a GAC consensus objection against a given gTLD, other GAC members would have to formally object to that proposed objection in order to prevent the minority view becoming consensus.
It’s a pretty low threshold. The .gay applicants, among others, are going to have a nerve-wracking time.

ICANN opens new gTLD program

It’s scarcely believable given the delays and threats, but ICANN opened its new generic top-level domains program to applications this morning at a minute after midnight UTC.
The TLD Application System, ICANN’s custom web tool for submitting applications, is now live.
If you have $5,000 burning a hole in your pocket, you can sign up for TAS to check it out at any time between now and March 29 at 2359 UTC.
A new English version of the Applicant Guidebook – the ninth – has also been published, mostly merely correcting and clarifying parts of the text.
Applications, with the remaining $180,000 part of the fee, are due by April 12 at 2359 UTC.

Whois verification rules coming this year

No more Donald Duck in the Whois?
Registrars could be obliged to verify their customers’ identities when they sell domain names under new rules proposed for later this year, according to ICANN president Rod Beckstrom.
He told National Telecommunications and Information Administration boss Larry Strickling today that the new provisions could make it into the new Registrar Accreditation Agreement by March.
Beckstrom wrote:

ICANN expects that the RAA will incorporate – for the first time – Registrar commitments to verify WHOIS data. ICANN is actively considering incentives for Registrars to adopt the anticipated amendments to the RAA prior to the rollout of the first TLD in 2013.

The RAA is currently being renegotiated by ICANN and the registrar community, following governmental outrage about the RAA at its meeting in Dakar last October.
If new Whois rules are added to the RAA, it will be up to registrars to decide whether to implement them immediately or wait until their existing ICANN contracts expire — hence the need for “incentives”.
Documents ICANN has been posting following its RAA meetings have been less than illuminating, so the letter to Strickling today is the first public insight into what the new contract may contain.
Whois verification, which is often found at the top of the wish-lists of intellectual property and law enforcement communities, is of course hugely controversial.
Civil rights advocates believe that checking registrant identities will infringe on rights to privacy and free speech, while not helping to prevent crime. Actual criminals will of course not hand over their true identities when registering domain names.
The process of verifying Whois data may also wind up making domain names more expensive, due to the costs registrars will incur implementing or subscribing to automated verification systems.
Nevertheless, the anti-new-gTLDs campaign in Washington DC led by the Association of National Advertisers recently led to Whois – a separate issue – being placed firmly on the new gTLDs agenda.
The chairman of the Federal Trade Commission, as well as Strickling, both wrote to ICANN to express concern about the lack of progress on strengthening Whois over the last few years.
Beckstrom’s letter to Strickling can be read here. His reply to FTC chairman Leibowitz – which also schools him in why new gTLDs probably won’t increase fraud – can be read here.