ICANN to publish final new TLD rulebook before December

The ICANN board of directors said it will publish the final Applicant Guidebook for new top-level domains before the public meeting in Cartagena this December.
(UPDATE: that statement is not 100% accurate. See this post for an update.)
The decision came at the end of its two-day retreat in Trondheim, Norway yesterday, which seems to have left a number of important issues as yet unresolved.
The matters of registry-registrar cross ownership and morality and public order objections are both still unfinished business, while the intellectual property lobby has at least one bone thrown its way.
On the morality or “MOPO” problem, now known as the “Rec6” problem, the board had this to say:

The Board will accept the Rec6 CWG recommendations that are not inconsistent with the existing process, as this can be achieved before the opening of the first gTLD application round, and will work to resolve any inconsistencies.

The Rec6 working group had recommended a re-framing of the issue that would eliminate the possibility of any one government blocking a new TLD application based on its own laws and interests.
So the board resolution sounds like progress, until you realize that every decision on new TLDs made at the retreat is going to be re-evaluated in light of a shamefully eleventh hour wish-list submitted by the Governmental Advisory Committee on Thursday.
Having failed to get what it wanted through cooperation with the Rec6 working group, the GAC essentially went over the heads of the GNSO, taking its demands directly to the board.
So much for bottom-up policy making.

Resolved (2010.09.25.02), staff is directed to determine if the directions indicated by the Board below are consistent with GAC comments, and recommend any appropriate further action in light of the GAC’s comments.

In other words, the board may only accept the parts of the Rec6 recommendations that the GAC agrees with, and the GAC, judging from its latest missive, wants the first round of applications limited to purely “non-controversial” strings, whatever those may be.
The board also made no firm decision of the issue of registry vertical integration and cross-ownership. This is the entirety of what it said on VI:

The Board will send a letter to the GNSO requesting that the GNSO send to the Board, by no later than 8 October 2010, a letter (a) indicating that no consensus on vertical integration issues has been reached to date, or (b) indicating its documented consensus position. If no response is received by 8 October 2010, then the Board will deem lack of consensus and make determinations around these issues as necessary. At the time a policy conclusion is reached by the GNSO, it can be included in the applicant guidebook for future application rounds.

That’s actually borderline amusing, given that the GNSO working group on VI has recently been waiting for hints from the board about what it intends to do, rather than actually getting on with the job of attempting to create a consensus policy.
The bone I mentioned for the trademark crowd amounts to knocking a week off the length of time it takes to resolve a complaint under the Uniform Rapid Suspension policy.
The Trondheim resolutions also make it clear that the ICANN board will only be required to vote on a new TLD application in limited circumstances, such as when an objection is filed.
For all other applications, a staff mechanism for rapidly signing contracts and adding TLDs to the root will be created.

Crunch day for new TLDs

The ICANN board has kicked off a two-day retreat during which it will attempt to finalize the rules for applying for new top-level domains.
The big question for many is this: are more delays or the cards, or will ICANN finally put a firm timeline on the first new TLD application round?
One constituency that seems bent on more delays is the intellectual property community.
Dozens of organizations, including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola, told ICANN in late July that the current IP protections in version 4 of the Draft Applicant Guidebook are not good enough.
The proposed Uniform Rapid Suspension process has become bloated and burdensome and the Trademark Clearinghouse does not go far enough to proactively protect trademarks, they say.
Just this week, it emerged that the International Trademark Association has called for further studies into the potential economic harms of new TLDs, which could easily add a couple of quarters of delay.
But there are good reasons to believe ICANN is done with being pushed around by IP interests.
As I reported earlier this week, chairman Peter Dengate Thrush has recently publicly stated that the current state of intellectual property protection in the DAG is a compromise position reflecting the views of all stakeholders and that IP lawyers “have had their chance”.
It’s not just IP interests that will be affected by the ICANN board’s discussions this weekend. The board’s decisions on “vertical integration” will make or break business models.
The VI issue, which governs whether registrars can apply for new TLDs and whether registrars can act as registrars, is perhaps the most difficult problem in the DAG. The working group tasked with sorting it out failed to reach consensus after six months of debate.
The DAGv4 currently says, as an explicit placeholder, that there can be no more than 2% cross-ownership of a registry by a registrar and vice versa.
This would mean that registrars that want to get into the TLD game, such as Demand Media’s eNom, would not be allowed to apply.
It may also cause problems for publicly listed registries such as VeriSign and Neustar, or registries that already have registrar shareholders, such as Afilias.
The proposals on the table include raising the ownership cap to 15% to eliminating it altogether.
A move by ICANN to restrict ownership will certainly attract allegations of anti-competitive behavior by those companies excluded, while a move too far in the opposite direction could lead to accusations that the rules do not go far enough to protect registrants.
There are no correct answers to this problem. ICANN needs to find a balance that does the least harm.
Also up for debate will be the rules on how governments and others can object to new TLD applications on “morality and public order” grounds.
Following the report of a working group, which I blogged about here, it seems likely that the term “morality and public order” will be replaced entirely, probably by “Objections Based on General Principles of International Law”.
If the board adopts the recommendations of this “Rec6” working group, there will be no special provision in the Guidebook for governments to make objections based on their own national laws.
There’s also the suggestion that ICANN’s board should have to vote with a two-thirds super-majority in order to deny a TLD application based on Rec6 objections.
It’s another almost impossible problem. Some say the Rec6 recommendations as they currently stand are unlikely to appease members of the Governmental Advisory Committee.
In summary, ICANN’s board has just two days to define the competitive parameters of a market that could be worth billions, figure out how to politely tell some of the world’s largest IP rights holders to back off, and write the rule-book on international governmental influence in the new TLD process.
I predict a small boom in sales of coffee and pizza in the Trondheim region.

Christians defeated? No comment on .xxx

ICANN’s latest public comment period on the .xxx top-level domain closes today with nary a Christian in sight.
The latest forum is the sixth that ICM Registry has had to endure since it first filed its TLD application, and most of them have been marked by voluminous outcries orchestrated by US-based religious groups.
Organizations such as the Family Research Council have been responsible for tens of thousands of form-letter comments over the years, but this time they’re nowhere to be seen.
Their efforts lobbying the Bush administration were credited by some with killing off the TLD by back-channels a few years ago.
So have they given up, changed tactics, or did somebody just miss a memo? Beats me.
In other .xxx news, today I’ve also reported on recent developments at ICM, including a plan to create several free-to-list directory sites on “super-premium” .xxx domains. To find out more, head over to The Register.

Group wants trademark study before new TLDs launch

The International Trademark Association has told ICANN it believes a study into the economic “harms” of launching new TLDs is “essential” before the program gets under way.
INTA president Heather Steinmeyer wrote, in a September 8 letter (pdf) published today (my emphasis):

We applaud the recommendation… to conduct a study to assess the harms associated with intellectual property abuse and related forms of consumer fraud in the domain name system, including how the current gTLDs have affected intellectual property and consumers since their introduction. Indeed trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

Steinmeyer offered INTA’s assistance with any such study.
The recommendation she refers to can be found in “An Economic Framework for the Analysis of the Expansion of Generic Top-Level Domain Names”, a report prepared for ICANN by three independent economists in June.
That report made a number of suggestions for possible further studies of the possible benefits and harms (although Steinmeyer only mentions the harms) of introducing new TLDs. It did not make any firm conclusions.
Following a public comment period that ended July 22, the status of that report appears to be ‘in limbo’.
The public comments have not yet been compiled into a summary and analysis document and as far as I can tell no other action has been taken on the report’s recommendations.
At least one ICANN director, chairman Peter Dengate Thrush, seems to consider the problem of balancing trademark protection and other parties’ interests pretty much resolved.
Just last week, in a fairly strongly worded statement at the Internet Governance Forum in Vilnius, Lithuania, he said:

The IP lawyers… have had their chance to make all these cases in a five-year process, and the intellectual property protections that have been put in place are the result of a delicate balance that has been wrought with everybody in the community, not just with the IP lawyers. IP lawyers always want more protections.

ICANN to reconsider .jobs auction deal

ICANN will take a second look at its decision to allow the .jobs registry to allocate premium domain names to its partners, following an outcry from jobs boards including Monster.com.
The Board Governance Committee posted a brief note yesterday confirming that it will process the Reconsideration Request filed by the .JOBS Charter Compliance Coalition a month earlier.
This does not mean that the .jobs decision will be reversed. The BGC has the power to make recommendations to the ICANN board, which the board is free to accept or reject.
The Coalition is annoyed that ICANN has given Employ Media, the .jobs registry, a carte blanche to allocate premium dictionary and geographic domain names via an RFP process.
Many expect the registry to allocate substantial chunks of real estate to the DirectEmployers Association, under previously announced plans to create a free listings site at universe.jobs.
Under ICANN bylaws, the BGC now has 90 days to reach a decision.
The deadline for submissions in response to Employ Media’s RFP is this Friday.

Man asks ICANN for “list of all domains”

A man has used ICANN’s freedom of information procedure to ask for “a list of all registered domains”, forcing the organization to politely decline.
Barry Carter wrote (pdf):

Per http://www.icann.org/en/transparency/didp-en.htm please provide me a list of all registered domains (including all public registrant information). If you are unable to provide this information, please let me know why.

As you might imagine, with the number of registered domains in the gTLDs and ccTLDs numbering in the hundreds of millions, that’s what you might call a Big Ask.
ICANN’s response (pdf) patiently explains that it doesn’t have such a list and that assembling one would constitute an unreasonable request under its Documentary Information Disclosure Policy.
Still, worth a shot, eh?

ICANN urged to kill new TLD morality veto

ICANN has been asked to eliminate references to “morality and public order” objections from its new top-level domain application process.
A cross-constituency working group has advised ICANN’s board of directors to scrap the term and to ensure that whatever replaces it does not enable individual governments to veto new TLDs based on their own local laws.
The so-called “MOPO” or “MAPO” part of the Draft Applicant Guidebook attracted criticism because ICANN’s Governmental Advisory Committee seemed to want to use it to grant themselves the right to block any TLD application they deemed too controversial.
The fear from the GAC was that if nations started blocking whole TLDs at their borders, it could ultimately lead to the fragmentation of the DNS root.
The fear elsewhere was that some edgy TLD applications, such as .gay or .sex, could be rejected due to the unilateral objections of backward regimes, harming freedom of speech.
But if ICANN incorporates the working group’s new recommendations into the next version of the DAG, that probably won’t be allowed to happen.
The group this week forwarded an interim report to the ICANN board for its consideration. While incomplete, it already carries a few recommendations that managed to find consensus.
Notably, the report recommends that, “National law not based on international principles should not be a valid ground for an objection”, which would seem to scupper any chances of Uganda or the Holy See blocking .gay, for example.
The working group has so far failed to reach consensus on how governmental objections should be registered and processed, but one option is:

The Applicant Guidebook should allow individual governments to file a notification (not an objection) that a proposed TLD string is contrary to their national law. The intention is that an “objection” indicates an intent to block, but a “notification” is not an attempt to block, but a notification to the applicant and the public that the proposed string is contrary to the government’s perceived national interest. However, a national law objection by itself should not provide sufficient basis for a decision to deny a TLD application.

The working group, which counted a few GAC members among its number, has managed to unanimously agree that the awkward term “morality and public order” should be dumped.
One possible contender to replace it is “Objections Based on General Principles of International Law”.
The group has also discussed the idea that a supermajority vote could be required if the board decides to reject a TLD application based on a MOPO objection.
The report is a work in progress. The working group expects to send an updated document to the ICANN board shortly before its retreat later this month.
Whether any of this will be acceptable to the GAC as a whole is up for debate.

.xxx bigger than .asia

It has not and may never be delegated, but the .xxx top-level domain now has more pre-registrations than .asia, the last big gTLD launch, has live domains.
The ICM Registry web site currently counts 180,352 pre-regs. ICM tells me this number counts the unique strings that have been applied for, excluding duplicate applications.
By contrast, DotAsia’s two-year-old namespace had shrunk to 177,872 by the start of September, according to HosterStats.
ICM reported 110,000 pre-registrations at the time it re-entered contract talks with ICANN in late June; media coverage increased that to 162,000 within a couple of weeks.
The company has previously said that only 6,435 pre-regs were self-identified as defensive in nature, although this is disputed by its opponents at the Free Speech Coalition.

Bulgaria to appeal ICANN rejection

The Bulgarian government will appeal ICANN’s rejection of .бг, its proposed Cyrillic-script version of the .bg country-code top-level domain, according to reports.
“We have reasons to hope that our proposal may be accepted by the end of next year,” Deputy Transport Minister Parvan Rusinov said, according to Novinite.com.
ICANN rejected the string earlier this year due to its confusing similarity to Brazil’s ccTLD, .br.
The Bulgarian government conducted a online poll, offering its citizens the choice of a few lengthier alternatives, but .бг still came back the winner.
In today’s reports, Rusinov is quoted saying that the government could either file a modified application, or wait for the launch of an appeals procedure in 2011.
It does not appear that the IDN ccTLD Fast Track process currently allows appeals, so I can only assume that such a mechanism is under consideration as part of the upcoming process review. It has been rumored.
ICANN doesn’t talk about IDN fast track applications until they are approved, but Bulgaria’s government has been happily chatting to the local press for months.
Technology minister Alexander Tsvetkov was quoted back in June saying that the country would ask ICANN to reconsider its decision. If he meant a Reconsideration Request, that never happened.

One in five domains use a privacy service

As many as 20 million domain names are registered via Whois privacy or proxy services, an ICANN-sponsored study has found.
The study, conducted by the National Opinion Research Center, looked at a sample of 2,400 domains registered in .com, .org, .net, .info and .biz.
It found that 18% of these names used a privacy/proxy service to hide the contact details of the true registrant. Its margin of error means the actual number could be between 16% and 20%.
Extrapolating to the universe of 101 million domains registered in these five TLDs at the time the sample was taken in January 2009, NORC estimates that between 17.7 million and 18.4 million domains used a proxy.
NORC also estimates that the current number of private registrations could be “substantially higher” today, due to increased market traction for such services.

This, combined with the growth in registration numbers to over 115 million domain names as of January 2010, means that the actual number of privacy/proxy registrations among the top five gTLDs is likely to be substantially higher than 18 million.

When you consider that some privacy services charge as much as $10 a year for private registrations, that adds up to quite a healthy market.