War of words over .jobs “breach” claims

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

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

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

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

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

Rules for registry-registrar mergers proposed

ICANN has revealed how it intends to enable incumbent domain name registries to also become registrars, ending a decade of cross-ownership restrictions.
The industry shake-up could allow companies such as VeriSign, Neustar and Afilias to become accredited registrars in their own top-level domains later this year.
Hypothetically, before long you could be able to go directly to VeriSign for your .com domains, to Afilias and Public Interest Registry for .info and .org, or to Neustar for .biz.
The changes could potentially also kick off a wave of consolidation in the industry, with registry operators buying previously independent registrars.
ICANN’s proposed process is straightforward, requiring just a few amendments to the registries’ existing contracts, but it could also call for governmental competition reviews.
Registries will have to agree to abide by a Code of Conduct substantially the same as the one binding on wannabe registries applying later this year under the new gTLD program.
The Code is designed to stop registries giving their affiliated registrars unfair advantages, such as lower prices or preferential access to data, over other ICANN-accredited registrars.
Registries would also have the option to adopt the registry contract from the new gTLD Applicant Guidebook wholesale, although I expect in practice this is unlikely to happen.
ICANN would be able to refer vertical integration requests to national competition authorities if it determined that cross-ownership could cause “significant competition issues”.
VeriSign would be the most likely to be hit by such a review, but it’s also the only registry that does not appear to have been particularly hamstrung over the years by the forced separation rules.
The proposed process for registries to request the contract changes has been posted to the ICANN web site and is now open for public comment.

Congress to hear from new TLD opponents

ICANN senior vice president Kurt Pritz is set to face a grilling at a Congressional hearing into new top-level domains on Wednesday, judging from the just-published witness list.
Of the other five panelists before the House Subcommittee on Intellectual Property, Competition and the Internet, all are quite critical of ICANN and/or its new gTLDs program:
Steve Metalitz, an IP lawyer and vice-chair of ICANN’s intellectual property constituency, which continues to push for even tougher rights protection mechanisms in the Applicant Guidebook.
Mei-lan Stark, senior VP of IP at Fox Group Legal, also closely involved with the International Trademark Association.
Steve DelBianco, executive director of NetChoice (of which VeriSign is a member), part of the ICANN business constituency. Last time he appeared before a Congressional committee, he called for more rights protections mechanisms and a slower new TLD rollout.
Michael Palage, lawyer/consultant and former ICANN board member. He has recently written articles calling for ICANN to pay more attention to its Governmental Advisory Committee (which, as we know, has a strong focus on IP protection nowadays).
Josh Bourne of the Coalition Against Domain Name Abuse, CADNA, one of the fiercest critics of the program. CADNA thinks new TLDs will cost businesses hundreds of millions of dollars in defensive registrations.
It’s a one-sided panel, with no strong proponents of new TLDs — such as likely applicants — among the witnesses.
Pritz is going to be in the firing line, and no mistake.

ICANN hires hacker Dark Tangent as security chief

Noted white-hat hacker Jeff “Dark Tangent” Moss is to join ICANN as its new chief security officer.
Moss founded the Black Hat and Def Con hacker conferences (which I highly recommend), and was once a director of firewall vendor Secure Computing.
If you’re not familiar with security lingo, “hacker” in this context means he’s one of the good guys. He’s also one of a couple dozen members of the US Department of Homeland Security’s Advisory Council.
The ICANN press release announcing the appointment (pdf) is filled with plaudits from some of the industry’s top DNS security geeks.
Paul Vixie, chairman and chief scientist of the Internet Systems Consortium is quoted as saying:

This is a great hire for ICANN. Jeff’s been in the infosec community since the dawn of time and not only knows where the weak spots are but also how they got that way, and what needs to be done and by whom. He’s the ideal person to drive ICANN’s security agenda.

He’s also been named vice-president. He starts work at the ICANN Washington DC office tomorrow.

ICM adds another .xxx registrar

DomainMonster has become the latest registrar, the first in the UK, to announce support for ICM Registry’s upcoming .xxx porn-only top-level domain.
The company said it has been accredited by ICM, and that it will start taking pre-orders for the domains on its Domainbox reseller platform soon.
Others registrars to have announced that they plan to carry .xxx domains over the last few months include Network Solutions, Blacknight, EnCirca, RRPProxy.net and United Domains.
I’m not sure if any have been officially accredited yet — no .xxx registrars show up on ICANN’s offical list.
DomainMonster CEO Matt Mansell said: “We anticipate the .XXX launch to be the biggest we’ve seen in recent years. The demand our support teams are seeing already far outstrips anything that’s gone before.”
ICM has previously projected somewhere between 300,000 and 500,000 registrations after launch. It took around 600,000 pre-reservations in the few years before it was approved by ICANN.
Getting .xxx accrediation is said to be quite a lengthy process. Registrars have to answer 14 detailed questions, including agreeing to abide by ICM’s policies and detailing how they plan to promote the domains.

Pritz to defend ICANN in Congress

ICANN has confirmed that Kurt Pritz, its point man for the new top-level domains program, will represent the organization at a Congressional hearing next week.
As I reported yesterday, The House Subcommittee on Intellectual Property, Competition and the Internet will hold an “ICANN Generic Top-Level Domains (gTLD) Oversight Hearing” on May 4.
Pritz is senior vice president of stakeholder relations. He has led the development of the new gTLD Applicant Guidebook for the last few years.
Some, such as GNSO Council chair Stephane Van Gelder, have already expressed surprise that ICANN CEO Rod Beckstrom will not be attending.
The last time Congress dragged ICANN to Capitol Hill, in 2009, it was former CEO Paul Twomey who took the brunt of the questioning.
As Domain Name Wire recounts, ICANN took a good kicking on that particular occasion.
The focus of next week’s hearing is expected to be the intellectual property implications of new TLDs.

Congress to question new TLDs rollout

The US Congress is to investigate ICANN’s new top-level domains program next week.
The House Subcommittee on Intellectual Property, Competition and the Internet will hold an “ICANN Generic Top-Level Domains (gTLD) Oversight Hearing” on Wednesday May 4 at 10am local time.
The hearing has been called at the direction of the committee’s chairman, Rep. Bob Goodlatte.
The list of witnesses has yet to be published, but I’d be surprised if we don’t see a representative of the intellectual property lobby in attendance.
It will also be interesting to see who from ICANN is put forward to defend the new gTLD program.
ICANN is accustomed to being hauled over the coals on Capitol Hill every year or so, but I believe that this is the first time it has been subject to a US “oversight” hearing since it signed the Affirmation of Commitments in September 2009.
The AoC ostensibly separated ICANN from direct US control, in favor of a multi-stakeholder approach that gave voice to all national governments.

Was Facebok.com really stolen?

The domain name’s strange history raises questions.
The typo domain facebok.com is currently at the center of an unusual legal battle that has put a respected domain name registrar’s ICANN accreditation at risk.
EuroDNS, as I reported last week, has been handed an ICANN breach notice for failing to transfer the domain to Facebook, which won it in a slam-dunk UDRP complaint last September.
If it does not hand over the domain by May 11, it stands to lose its ability to sell domain names.
But the registrar says it is a defendant in a lawsuit, filed in its native Luxembourg, which has put a jurisdictional question mark over its ability to legally transfer the domain.
According to EuroDNS, the suit was filed by a company calling itself “Facebok.com Inc”, on September 24 last year, just one week after the UDRP case was decided.
This suspiciously named company alleges that the domain is its rightful property, and that it was stolen by the respondent in the UDRP case, one Franz Bauer of Munich, Germany.
The suit names Bauer, Facebook and EuroDNS as defendants.
A review of historical Whois records shows that Bauer has been associated with the domain facebok.com since August 2009, after it emerged from a few years behind a Whois privacy shield.
The address in the Whois, then and now, seems to be a hotel in Munich.
However, on September 21, 2010, a few days after WIPO informed Bauer he had lost the UDRP, the contact information in the Whois changed to a Hushmail email address and:

Company: FACEBOK.COM, INC.
Name: Facebok Domains Facebok Admininstrator
Address: IPASA Building, 3rd Floor, 41 Street Off Balboa Avenue, Bella Vista District
City: Panama City
Country: PANAMA
Postal Code: 83256

That address is shared by Panama Offshore Legal Services, a company that offers corporate formation services to individuals outside of Panama, with the promise of “global asset protection, privacy, investment diversification, tax minimization, affordability and convenience.”
Facebok.com Inc, which is suing EuroDNS, Facebook and Bauer, therefore appears to be an offshore shell company. The question is: who’s behind it?
At the time the domain’s Whois changed from Bauer to Facebok.com Inc, it was in ClientTransferProhibited status, meaning it could not be transferred to another registrar, but that the registrant was free to change his contact information at will.
By early October, the Whois record had reverted back to Bauer.
The domain facebok.com currently directs fat-fingered web surfers to a variety of affiliate scams, depending on where they live, that rely upon users completing spurious surveys and not reading the fine print when they sign up for pricey mobile phone messaging services.
With 500 million Facebook users, many of whom will be youngsters, silver surfers, or may not use ASCII as their primary script, the site is likely to be getting a fair bit of traffic.
Compete.com estimates it received roughly 4,000 to 8,000 visits per month last year. Alexa gives the site a rank of roughly 154,000. Both sites show a huge traffic spike in March.

Aussies to back city TLD bids

Australian authorities are planning to back bids for .melbourne and .sydney top-level domains, according to a report in The Australian.
The article quotes an official from the New South Wales Premier’s Office saying there’s a plan to release a tender for the right to operate .sydney, and somebody from the City of Melbourne saying they’re “actively considering” .melbourne.
The report does not spell out the expected uses of the TLDs. I expect some of the strategy will depend on what business plans the successful registry operator comes up with.
The current draft of ICANN’s Applicant Guidebook protects city names, demanding applicants show proof of support or non-objection from the relevant public authorities.
The only exception is when the applied-for string matches a non-capital city name, but is not intended to represent that city.
That’s designed to allow brand or generic TLDs that match smaller place names — think .phoenix or .buffalo.
With the latest revision of the Guidebook, it is noted that it is up for national governments to decide what the appropriate entity to support a city TLD bid is, which could complicate matters,
There’s already a Facebook group devoted to a .melbourne application.

Two-horse race for ICANN board seat

A seat on ICANN’s board of directors opens up in June, and two people have been nominated to fill it.
Avri Doria and Bill Graham will face a ballot to see who will replace Rita Rodin Johnson, whose term expires at the end of ICANN’s Singapore meeting, June 24.
It’s not an open ballot, of course. The seat is designated to be occupied by a member of ICANN’s Generic Names Supporting Organization’s Non-Contracted Parties House.
That’s basically the half of the GNSO policy-making body made up of representatives of organizations that are not domain name registrars or registries — they have no contracts with ICANN.
Doria works at a Swedish university. She sits in the Non-Commercial Stakeholders Group, and is a former chair of the GNSO Council.
Graham was once Canada’s representative on and vice-chair of ICANN’s Governmental Advisory Committee, and is now head of strategic global engagement at the Internet Society.
Only 13 members of the NCPH get to vote. Whichever candidate receives eight votes or more, wins.