.xxx domains go live

Click here: icmregistry.xxx, then come back.
That’s right. After ICM Registry’s almost 11 years of campaigning, and almost $20 million in legal and other expenses, .xxx domain names are actually live in the domain name system.
ICANN, IANA, the US government and VeriSign, in that order, have all agreed to delegate the internet’s newest gTLD, and the first few .xxx domains went live within the last couple hours.
The domains sex.xxx and porn.xxx are now also resolving to placeholder sites. They’re currently “safe for work”, but possibly not for much longer.
IANA has a .xxx page, complete with a lengthy delegation report (in a snazzy new pdf format) that broadly explains the convoluted process ICANN used to ultimately, albeit reluctantly, approve the TLD.

North Korean domain to change hands

ICANN is set to redelegate .kp, the country-code top-level domain for North Korea, when its board of directors meets next week.
It’s less than four years since .kp was first created. In September 2007, IANA delegated the ccTLD for the first time to the Korea Computer Center, a Pyongyang-backed governmental organization.
The technical side of the registry is currently handled by KCC Europe, a German company, but while some .kp domains still resolve, the official registry web site has been offline for months.
The redelegation is part of the ICANN board’s consent agenda. This means that, barring surprises, it will simply be rubber-stamped with no substantive discussion.
Because ccTLD redelegations are handled in private, we won’t know who the new registry manager is until after the handover happens and the IANA report is published.
In other ccTLD news, ICANN may also create three new internationalized domain name ccTLDs, for Serbia (.срб ), Algeria (الجزائر) and Morroco (المغرب).
Those delegations are part of the board’s regular agenda for its April 21 meeting, and will be discussed.

Governments dig in over new TLD objections

World governments have offered to compromise with ICANN on several disagreements relating to the new top-level domains program, but have dug their heels in on others.
ICANN’s Governmental Advisory Committee has finally published its updated “scorecard”, which states its position on the current state of negotiations, some 18 days after it was expected.
The document (pdf) provides the GAC’s response to the ICANN board of directors’ response to the GAC’s original list of objections to the program’s Applicant Guidebook.
Yeah, it’s getting a bit complex.
In the interests of wordcount, I’m going to focus here mainly on the issues where there still appears to be notable conflict.
This is a preliminary analysis.
Controversial TLDs
The GAC doesn’t want any “controversial” strings to be approved as new TLDs. As such, it wants governments to be able to object to any TLD application, for any reason, and without paying to have their objections evaluated by third parties.
ICANN attempted to compromise by saying that it would enable the GAC to provide advice to the board about specific applications within the 45-day comment window after the applications are published.
The GAC doesn’t appear to be satisfied by this, however. While it said it will try to provide advice during that window, it points out that the ICANN bylaws do not put any time limits on GAC advice.
The GAC also wants a separate “early warning system”, whereby the GAC would get at least 60 days, “finishing prior to the Initial Evaluation period”, to submit objections.
The idea is that applicants could withdraw from the process with a substantial refund if they received notice that governments were likely to object to their choice of TLD.
Assuming the GAC expects the warning system to finish before Initial Evaluation begins (rather than ends), this could add two months to the time needed to process applications, currently estimated at eight months for the simplest applications.
Under the current plan in the Applicant Guidebook, after the application window closes, ICANN spends a month privately checking the submissions for completeness. The five-month Initial Evaluation, which encompasses the 45-day open public comment period, immediately follows.
Perhaps aware of the delays its idea could cause, the GAC suggests that “ICANN should pass details of applications to the GAC as soon as they are lodged.”
This seems unworkable.
Most potential applicants have been playing their cards very close to their chests when it comes to the strings they plan to apply for.
The application window is expected to run for 60 to 90 days. If a company’s application were revealed to the GAC towards the beginning of that period, there would be a real risk of that information being leaked to potential competitors in other countries.
If you’re applying for “.baseball” in a selection of foreign languages, do you want competitors in those countries potentially being tipped off about your application while they still have time to prepare a rival bid?
If applicants knew the GAC was to be told about applications and applicants before the window closed, the vast majority of applications would very likely be filed on the very last possible day, defeating the object of early GAC notice.
Another probably unworkable GAC proposition it continues to stand by is the idea that applicants should be allowed to amend their application if they receive notice of a government objection.
This obviously creates a big loophole for gaming, allowing crafty applicants to scope out the competitive landscape before committing to a TLD – you could get dozens of placeholder applications for .porn, to be amended to .puppies or whatever when the inevitable GAC objection arrived.
Trademark Protection
Surprisingly, there’s nothing in the new GAC scorecard that addresses trademark protection concerns. Zip.
Does this mean the GAC and board have settled their differences and reached a consensus? Or does it mean that the most recent discussions have been so lacking in substance that the GAC has nothing to add beyond what it said before San Francisco?
From the new GAC paper, it’s impossible to tell for sure either way, but I will note that it’s refrerred to as a “draft” account of “proposed” responses, which suggests it’s not yet complete.
Registrar-Registry Cross Ownership
ICANN wants to start allowing registries and registrars to “vertically integrate” by executing both functions under the same corporate umbrella.
Concerns about market power and possible anti-competitive behavior would be referred to national competition regulators under some circumstances.
But some GAC members have heard back from their competition ministries, and they’re not buying it:

The Board response is considered insufficient by the colleagues of some GAC members who are responsible for Competition and anti-Trust issues. They have requested that ICANN provide a more reasoned argument as to why they have rejected the GAC’s proposal and why the Board feels that ex-ante measures are less preferable to ex-post measures for minimising problems associated with anti-competitive behavior.

Community TLDs
Currently, the Guidebook allows applicants to voluntarily self-designate as a “community” TLD, which requires community support to be documented.
But it would currently still be possible for a company to, for example, apply for a “.bank” as a regular TLD, showing no support from banks. The onus would be then on banks to object.
The GAC wants to change this, and continues to request that any string purporting to represent a certain set of users should be required to show support for that community:

The GAC’s domestic constituents have a reasonable expectation that applicants for new gTLD strings that clearly suggest they represent specific communities should be required to so indicate in their application and should demonstrate that they have the support of that community or the relevant authorities/entities responsible for that community.

In the absence of such changes, the GAC wants governments to be able to object on behalf of those communities without having to pay for a third-party panel to handle the objection.
The GAC does appear to have given some ground here, responding to ICANN’s concern that introducing a subjective categorization process for TLDs is “inherently problematic”.
The GAC now says that in the absence of special treatment for regulated industries, there should be more stringent vetting for applicants across the board, to prevent crooks getting their hands on a TLD.
Law Enforcement
The GAC wants new TLD registries to be obligated to cooperate with law enforcement agencies, criminal and civil, no matter what the jurisdiction. It wants this text inserted into the Guidebook:

A registry operator must respond in a timely manner to a request concerning any name registered in the TLD from any government agency that is conducting a lawful investigation or official proceeding inquiring into a violation of or failure to comply with any criminal or civil statute or any regulation, rule, or order legally issued pursuant thereto.

The proposal would only require the operator to “respond” to the law enforcement inquiry.
This could imply that, a registry based in the US would have to cooperate with, for example, a German investigation into a domain hosting Nazi memorabilia or a Saudi probe into pornography, and that a Canadian registry would have to cooperate with US authorities investigating sites selling prescription medicine across their mutual border.
Geographic Names
If you’re applying for a TLD representing a geographic region, the GAC would like you to be beholden forever to the governmental entity which backed your bid.
The GAC “insists” that this text be included in new TLD registry contracts:

In the event that the TLD was delegated to Registry Operator pursuant to the consent of a governmental entity to use a geographic name related to the jurisdiction of such governmental entity, the parties agree that, notwithstanding any provision contained in this Agreement, in the event of a dispute between such governmental entity and Registry Operator, ICANN will comply with a legally binding decision in such jurisdiction in favor of such governmental entity related to the TLD.

So if you successfully apply for .alabama, having obtained the support of the Alabama governor, but a subsequent administration wants to hand the TLD to another company for whatever reason, ICANN would have to comply.
If ICANN does not make this a condition of the Guidebook, the GAC expects many governments will not give their consent to any geo-TLD applications under their jurisdiction.
More Delays?
The new GAC advice carries the dateline April 12, which is 18 days later than the ICANN board was expecting it, according to the resolution it passed in San Francisco last month.
If ICANN wishes to strictly stick to the timetable it approved in SF, its staff now have just three days to incorporate the latest advice into the next Guidebook, which is scheduled to be published this Friday.
It’s also pretty clear that the GAC still requires clarification from ICANN on some of the outstanding issues. As well as some areas of agreement, there are several other points of conflict I’ve not explored in this piece.
But this all may not spell doom for the timeline just yet, however. By my reckoning, there’s at least a couple of weeks’ worth of flexibility baked into the schedule.
The Guidebook could, feasibly, still be approved June 20 in Singapore, as ICANN’s leadership hopes.

New TLDs make it into election manifesto

Welsh nationalist Plaid Cymru has become possibly the first political party to make getting a new top-level domain an election manifesto promise.
Plaid’s manifesto for the Welsh Assembly elections, published today (pdf), says: “We will continue to support the creation of a Welsh cultural and linguistic internet domain dotCymru.”
One of the party’s core goals is further independence from the UK, so it makes perfect sense for it to throw its weight behind the dotCYM initiative.
Wales is, of course, currently represented under the umbrella of .uk, along with England, Scotland and Northern Ireland.
dotCYM had planned to apply for .cym, but had to change it due to ICANN’s rules that forbid TLDs that match three-letter strings on the ISO 3166 list, on which CYM is reserved for the Cayman Islands.
The word “Cymru” is Welsh for “Wales”, pronounced “cumri”.
(via @antonyvc)

VeriSign to offer different prices to different registrars?

VeriSign may be able to offer differential pricing for .net domain names under the just-published draft .net registry contract.
The current .net agreement expires at the end of June, but VeriSign has a presumptive right of renewal.
The newly negotiated contract has a new “Special Programs” clause would enable VeriSign to offer pricing incentives to registrars in “underserved geographies” not available to other registrars.
Here’s the meat of the paragraph:

Registry Operator may for the purpose of supporting the development of the Internet in underserved geographies provide training, technical support, marketing or incentive programs based on the unique needs of registrars located in such geographies to such registrars, so long as Registry Operator does not treat similarly situated registrars differently or apply such programs arbitrarily. Registry Operator may implement such programs with respect to registrars within a specific geographic region, provided, that (i) such region is defined broadly enough to allow multiple registrars to participate and (ii) such programs do not favor any registrar in which Registry Operator may have an ownership interest over other similarly situated registrars within the same region.

Later, the part of the contract that limits VeriSign’s registry fee and requires uniform pricing among all registrars has been amended to specifically exclude these special programs.
The contract does seem to envisage differential registrar pricing, within certain geographic parameters, perhaps enabling VeriSign to stimulate growth in low-penetration markets.
It’s probably too early to speculate, given that we don’t know what incentives VeriSign has in mind, but it’s not difficult to imagine a scenario where particularly attractive pricing could cause a bunch of shell companies to emerge in, say, Africa or Asia.
For now, the provision would only apply to .net domains, but VeriSign has been known to use .com as a venue for dry runs of services it wants to offer in .com. The .com contract is up for renewal next year.
The proposed .net contract (pdf) contains a number of other changes (pdf), some of which mirror language found in other registry contracts, some of which are new.
There’s a provision for VeriSign to be able to “prevent” the registration of certain names, such as those that would have led to the Conficker worm spreading, in order to protect the security of the internet.
Some of the things that have not changed are also quite interesting.
With ICANN’s recent “vertical integration” decision, which will allow registries and registrars to own each other, you’d think the .net contract renegotiation would be the perfect opportunity for VeriSign to signal its intentions to get into the registrar business, as Neustar already has.
But it has not. The contract contains the same prohibitions on cross ownership as the earlier version.
And as Domain Name Wire noted, the new contract would allow VeriSign to continue to increase its prices by 10% every year until 2017.
That could lead to a maximum of about $9 per domain per year, including ICANN fees, by the time the deal is next up for renewal, if VeriSign exercised the option every year.
There’s an ICANN public comment period, open until May 10.

Why ICANN’s CEO did not vote on .xxx

President and CEO Rod Beckstrom has explained his decision to abstain from voting on ICM Registry’s .xxx top-level domain when it came before the ICANN board last month.
As expected, Beckstrom provided substantially the same explanation for his abstention as he did at the Brussels meeting last June – not on the merits of .xxx, but because he had legal concerns.
Specifically, he abstained because he objected to one of the majority findings of an Independent Review Panel, which forced .xxx back to the table last year after ICANN had tried to reject it.
Beckstrom wrote, in a recently published statement (pdf):

while I accept the contribution to ICANN’s accountability and transparency provided by the existence and the use of the independent panel review process, I nonetheless remain concerned about the determination by two of the three panelists that the ICANN board should not use business judgment in the conduct of its affairs.

This refers to the “business judgment rule”, a piece of California law under which courts give deference to the judgment of company directors, unless their decisions were made in bad faith.
If an IRP panel – the last port of appeal for companies upset with ICANN’s decisions – were required to use this rule, it would substantially raise the bar for a successful complaint.
But the panel in the case of ICM Registry versus ICANN (the only such panel to date) decided, by a 2-1 vote, that ICANN’s actions should be “appraised not deferentially but objectively.”
This allowed ICM to win its case by merely showing ICANN had acted outside its bylaws, and not necessarily in bad faith.
The dissenting IRP panelist, Dickran Tevrizian, wrote: “The rejection of the business judgment rule will open the floodgates to increased collateral attacks on the decisions of the ICANN Board of Directors”.
However, the IRP did not specifically rule that ICANN “should not use business judgment” as Beckstrom’s statement suggests, just that the IRP was not obliged to defer to it.
Beckstrom’s statement also gives a shout-out to the Governmental Advisory Committee:

In addition, I note the concerns of the GAC, which while not expressed as a clear decision, was nonetheless directional.

As I previously blogged, ICANN approved the .xxx contract over the objections of some members of the GAC, using the fact that the GAC’s official advice was vague enough to be worked around without explicitly rejecting it.
Beckstrom, incidentally, did not even sign the .xxx contract with ICM, which I believe is a first for an ICANN registry contract. It was instead signed by general counsel John Jeffrey.
(via InternetNews.me)

Man writes to ICANN with Whois look-up

A second person has asked ICANN for “a list of all registered domains”, using the organization’s freedom of information policy.
Jorge Sabate made a Documentary Information Disclosure Policy filing (pdf) last December, published this week, in which he made the request. He added:

If you are unable to provide the whole information, i would like to know the dste [date] was created the domain name christiansmith.com

That’s right. Sabate’s method of doing a Whois look-up on a single domain name appears to involve asking ICANN for a database of all 200 million registered domain names.
He’s not the first person to use the DIDP to make such a strange request. One Barry Carter asked for the same list last September, and was similarly unsuccessful.
No such database exists, of course, so ICANN had to rebuff both men.
But to answer your question, Mr Sabate: christiansmith.com was originally registered November 13, 1998.

ICANN sponsors line up for Singapore

ICANN’s web page for its Singapore meeting has gone live, and the organization looks to have already attracted almost $200,000 in sponsorship fees.
The meeting, which officially begins June 19 at the Raffles City Convention Center, is widely expected to be the meeting when ICANN finally signs off on its Applicant Guidebook for new top-level domains.
As such, I expect it’s going to see a fair bit of sponsor interest.
Prices have been reduced somewhat since the San Francisco meet last month, due to some complaints from domain name companies, but there are still some big-ticket opportunities, including a $250,000 Diamond deal and two $150,000 Platinum Elite deals.
So far, five sponsors have already signed up, the biggest spenders being Neustar and the Public Interest Registry, which have both opted for $75,000 Platinum-tier arrangements.
Don’t expect any lengthy security briefings this time around – Singapore is one of the safest cities in the world, due in part to its harsh judicial system. You’re more likely to get beaten up under court order than by a mugger.
The weather: hot and wet.
The host of the meeting, which is ICANN’s 41st, is the Infocomm Development Authority of Singapore.

ICANN doubles .xxx fees

ICANN has doubled the amount it will charge ICM Registry to register .xxx domain names, adding potentially hundreds of thousands of dollars to its top line.
The two parties yesterday signed a registry agreement (pdf), but it has been revised in quite significant ways since the last published version.
In short: ICANN has substantially increased its revenue whilst substantially reducing its risk.
Notably, ICANN will now charge the registry $2 per .xxx domain per year, compared to the $1 anticipated by the version of the contract published in August 2010 (pdf).
With ICM hoping for 300,000 to 500,000 registrations in its first year, that’s a nice chunk of change. Porn domains could be a $1 million business for ICANN quite soon.
For comparison, successful applicants under the new generic top-level domains program will only have to pay $0.25 per domain per year, and that fee only kicks in after 50,000 domains.
If there’s a .sex or a .porn, they’ll pay an ICANN fee an eighth of ICM’s.
Text from the new gTLD Applicant Guidebook that allows ICANN to raise fees in line with US inflation has also been added to ICM’s contract.
ICANN said in a blog post that the increases “account for anticipated risks and compliance activities”. It appears to be expecting trouble.
A number of other changes address the legal risks and compliance problems ICANN seems to be anticipating.
The contract now allows ICANN to more easily impose monetary fines on ICM for non-compliance, for example.
A new mediation procedure has been added to resolve disputes, to come between face-to-face talks and formal arbitration.
The contract would also would oblige ICM to pay for ICANN’s legal costs in the event of a third-party dispute, such as an Independent Review Panel hearing, being filed.
While the original contract required ICM to indemnify ICANN against third-party lawsuits, the revised version also includes a broad waiver (pdf) “to resolve all outstanding dispute/possible litigation matters” between ICM and ICANN.
I am not a lawyer, but it appears that ICM has signed away a fairly comprehensive chunks of its rights, and has agreed to shoulder most of the risk, in order to get its hands on the potentially lucrative deal.

Greek IDN blocked due to non-existent domain

Greece’s request for .ελ, a version of .gr in its local script, was rejected by ICANN because it looked too much like .EA, a non-existent top-level domain, it has emerged.
Regular readers will be familiar with the story of how Bulgaria’s request for .бг was rejected due to its similar to Brazil’s .br, but to my knowledge the Greeks had not revealed their story until this week.
In a letter to the US government, George Papapavlou, a member of ICANN’s Governmental Advisory Committee, called the process of applying for an IDN ccTLD “long and traumatic”.
He said that Greece had to jump through “completely unnecessary” hoops to prove its chosen string was representative of the nation and supported by its internet community, before its application was finally rejected because it was “confusingly similar” to a Latin string.
“IANA has no right to question languages or local Internet community support. Governments are in the position of expressing their national Internet communities,” Papapavlou wrote.

The capital letters version of .ελ (ΕΛ) was considered to be confusingly similar to the Latin alphabet letters EA. The possibility of such confusion for a Greek language speaker, who uses exclusively Greek alphabet to type the whole domain name or address, to then switch into capital letters and type EA in Latin alphabet is close to zero. After all, there is currently no .ea or .EA ccTLD.

That’s true. There is no .ea. But that’s not to say one will not be created in future and, due to the way ccTLD strings are assigned, ICANN would not be able to prevent it on stability grounds.
Papapavlou called for “common sense” to be the guiding principle when deciding whether to approve an IDN ccTLD or not.
That is of course only one side of the story. Currently, ICANN/IANA does not comment on the details of ccTLD delegations, so it’s the only side we’re likely to see in the near future.