More friction over closed generics

ICANN’s Generic Names Supporting Organization and Governmental Advisory Committee seem to be headed to bilateral talks on the thorny issue of whether “closed generic” gTLDs should be allowed, but not without discontent.

The GNSO’s Non-Commercial Stakeholder Group last week opposed these talks, suggesting that the GAC is trying to acquire more policy-making power and take a second bite at the apple on a issue it has already advised on.

The NCSG wrote (pdf) to the GNSO Council last Thursday to oppose GAC talks, which are being encouraged by ICANN management and board.

Closed generics are dictionary-word gTLDs that do not match the registry’s trademarks but which nevertheless act as though they are a dot-brand, where only the registry may register domains.

There aren’t any right now, because ICANN, acting in 2014 in response to 2013 GAC advice, retroactively banned them from the 2012 application round, even though they were initially permitted.

It’s such a divisive issue that the GNSO working group (known as SubPro) that made the policy recommendations for the next round was, I believe uniquely, unable to come up with a even a fudged recommendation.

The GAC is sticking to its view that closed generics are potentially harmful, and since the GNSO couldn’t make its mind up, ICANN has suggested an informal dialogue between the two parties, to encourage a solution both deem acceptable that could then be thrown back at the GNSO for formal ratification.

The NCSG objected to this idea because it appears, NCSG said, that a new policy process is being created that increases the GAC’s powers to intervene in policy-making when it sees something it doesn’t like.

But the constituency appeared to stand alone during a GNSO Council meeting last Thursday, where the prevailing opinion seemed to be that dialogue is always a good thing and it would be bad optics to refuse to talk.

The Council has formed a small team of four to decide whether to talk to the GAC, which is in favor of the move.

ICANN’s Covid-19 waiver formally appealed

Two reliably regular ICANN meeting attendees have formally asked the Org to change the legal waiver it’s asking everyone to sign if they want to show up in The Hague for ICANN 74 this June.

Michele Neylon of registrar Blacknight Solutions and Eberhard Lisse of .na ccTLD registry Namibian Network Information Center filed an emergency Request for Reconsideration with ICANN last week.

They call the waiver, which absolves ICANN from liability if participants catch Covid-19 even through ICANN’s own gross negligence “unduly broad” and “unreasonable” and “unduly wide and harsh”.

They can’t ask their staff to sign such an all-encompassing waiver, they say.

ICANN’s Board Accountability Mechanisms Committee has already rejected the RfR, saying it doesn’t meet the timing requirements for an emergency request. It will consider it as a regular request in due course, it said.

As expected, ICANN also seems to have fixed the bug I spotted last week that allowed hybrid attendees to register without signing the waiver.

GoDaddy and XYZ sign away rights after UNR’s crypto gambit

ICANN has started asking registries to formally sign away ownership rights to their gTLDs when they acquire them from other registries.

GoDaddy and XYZ.com both had to agree that they don’t “own” their newly acquired strings before ICANN would agree to transfer them from portfolio UNR, which auctioned off its 23 gTLD contracts a year ago.

GoDaddy bought .photo and .blackfriday for undisclosed sums in the auction, it emerged last week. XYZ bought 10 others and newcomer Dot Hip Hop bought .hiphop.

All three transfers were signed off March 10 (though GoDaddy’s were inexplicably not published by ICANN until last Thursday, when much of Christendom was winding down for a long weekend) and all three contain this new language:

The Parties hereby acknowledge that, notwithstanding anything to the contrary in any marketing or auction materials, documentation or communications issued by Assignor or any other agreements between the Parties or otherwise, nothing in the Registry Agreement(s) or in any other agreements between Assignor and Assignee have established or granted to Assignor any property or ownership rights or interest in or to the TLDs or the letters, words, symbols or other characters making up the TLDs’ strings and that Assignee is not being granted any property or ownership rights or interest in or to the TLDs or the letters, words, symbols or other characters making up the TLDs’ strings.

The Parties represent that they understand the scope of ICANN’s Consent, which: (A) does not grant Assignee any actual or purported property or ownership rights or interest in or two the TLDs or the letters, words, symbols or other characters making up the TLDs’s strings; (B) is solely binding and applicable to the assignment of rights and obligations pursuant to the Registry Agreement(s); (C) solely relates to the operation of the TLDs in the Domain Name System as specified in the applicable Registry Agreement(s); and (D) does not convey any rights to the letters, words or symbols making up the TLD string for use outside the Domain Name System.

The TL;DR of this? Registries don’t “own” their gTLDs, ICANN just allows them to use the strings.

The new language is in there because UNR’s auction had offered, as a bonus, ownership of matching non-fungible token “domains” on the blockchain-based alt-root Ethereum Name Service.

Alt-roots arguably present an existential threat to ICANN and a risk to the interoperability of the internet, so ICANN delayed authorization of its approvals for many months while it tried to figure out the legalities.

Dot Hip Hop, for one, has said it couldn’t care less about the Ethereum NFT, and has had it deleted.

Separately, the .ruhr contract has been transferred from regiodot to fellow German geo-TLD operator DotSaarland, a subsidiary of London-based CentralNic, which announced the acquisition in February.

This assignment agreement was signed March 31 — after GoDaddy’s and XYZ’s — and does not include the new ownership waiver language, suggesting that it’s unique to UNR’s auction winners.

However, the friction between blockchain alt-roots is likely to be an issue when the next new gTLD application round opens.

It’s being said that a great many “TLDs” are being registered on various blockchains specifically in order to interfere with matching ICANN applications, and that blockchain fans are attempting to delay the next round to give their own projects more time to take root.

GoDaddy’s two acquisitions bring the total known outcomes of UNR’s auctions to 13 out of 23 gTLDs. At least four more are being processed by ICANN, according to a now month-old statement.

ICANN picks 28 registries for abuse audit

ICANN has kicked off its annual compliance audit, and this time it’s focused on registries rather than registrars.

It’s picked 28 gTLDs based on whether they’ve not been fully audited before, whether they have more than 100 domains, and whether they show up a lot in abuse blocklists (excluding spam blocklists).

Only one gTLD per registry has been picked, which might be why the number is lower than previous audit rounds.

The audit will entail sending a questionnaire to each registry to ask how they are complying with each of their commitments under the Registry Agreement.

Registries have already been told if they’ve been picked. ICANN hopes to have it all wrapped up in the third quarter.

TMCH turning off some brand-blocking services

The Trademark Clearinghouse is closing down two of its brand protection services after apparently failing to attract and retain registry partners.

The company announced recently that TREx, its Trademark Registry Exchange, will shut down after its customers’ existing subscriptions expire, saying:

The communication that we receive from our agents, resellers, clients and other registries that we have reached out to around improving the product shows that there is currently little appetite for such a service.

TMCH said it may revive the service after the new round of new gTLDs happens.

TREx was a service similar to Donuts’ Domain Protected Marks List and others, whereby trademark owners can block their brands across a multitude of TLDs for a substantial discount on the cost of defensive registrations.

But the TMCH offering was not restricted to one registry’s portfolio. Rather, it consolidated TLDs from multiple smaller operators, including at least one ccTLD — .de — into one service.

It seems to have peaked at 43 TLDs, but lost three when XYZ.com pulled out a couple years ago.

Its biggest partner was MMX, which sold its 22 gTLDs to GoDaddy Registry last year. I’d be very surprised if this consolidation was not a big factor in the decision to wind down TREx.

I’d also be surprised if we don’t see a DPML-like service from GoDaddy before long. It already operates AdultBlock on its four porn-themed gTLDs.

The news follows the announcement late last year that TMCH will also close down its BrandPulse service, which notified clients when domains similar to their brands were registered in any TLD, when its existing subscriptions expire.

Both services leveraged TMCH’s contractual relationship with ICANN, under which it provides functions supporting mandatory rights protection mechanisms under the new gTLD program rules, but neither are ICANN-mandated services.

Bye-bye Alice’s Registry

One of ICANN’s oldest accredited registrars has had its contract terminated for non-payment of fees and other alleged breaches.

Alice’s Registry, which has been around since 1999, has been told it’s no longer allowed to sell gTLD domains and that whatever remains of its managed domains will be transferred to another registrar.

The termination comes at the end of more than two years of ICANN’s Compliance department pursuing AR for not paying its accreditation fees, not operating a working Whois service, not implementing RDAP, and not showing its company is in good standing.

The registrar’s web site hasn’t been working in many months, and until its accreditation was suspended last October it had not responded to ICANN’s calls and emails.

Its responses to Compliance since then did not help its case, so ICANN made the decision to terminate.

.kids goes live, plans to launch this year

The long-anticipated .kids top-level domain has its first live site, and the registry has announced plans to start selling domains towards the end of the year.

The contractually mandated nic.kids is now resolving, leading to the registry web site of the DotKids Foundation.

Hong Kong-based DotKids, which has close ties to DotAsia and ICANN director Edmon Chung, said the plan is to start a sunrise period in the third quarter and go to general availability in the fourth quarter this year.

There’s also going to be a special registration period for children’s rights groups and a Q3 “Pioneer Program” for early adopters.

The idea behind the gTLD is to provide a space where all content is considered suitable for under-18s, though the exact policing policies have yet to be written. DotKids is using the UN definition of a child.

It will be a tough balancing act. My fifteen-year-old nephew isn’t happy with content that doesn’t involve the laser-beam dismemberment of tentacled beasts, but a decade ago was content to watch Peppa Pig on a loop for hours a day.

DotKids won the rights to .kids, somehow beating rival applicants Amazon and Google, in 2019. It signed a very strange Registry Agreement with ICANN last year.

Previous attempts at creating child-friendly domains have proven unsuccessful.

In the US, there was a government-mandated .kids.us brought in 20 years ago, aimed at under-13s, but it was a spectacular failure, attracting just a handful of registrations. It was killed off in 2012.

Russian speakers have their own equivalent gTLD .дети, a word that has taken on more sinister overtones in recent weeks, but that currently has only about 800 names under management.

DotKids has its work cut out to make .kids a commercial success, but it is a non-profit and it was the only new gTLD applicant to have most of its ICANN fees waived under the Applicant Support Program.

ICANN suggests its Covid waiver may be worthless

The controversial legal waiver ICANN is insisting you agree to before attending its next public meeting may not be worth the pixels it’s written with, judging by the Org’s latest statement on the matter.

In an updated FAQ, posted in response to a complaint from Blacknight, ICANN now states:

Attending an ICANN meeting remains a risk-based analysis for each attendee, recognizing that sometimes things can and do go wrong. A liability waiver helps enshrine that ICANN’s funds should not be used to defend ICANN against items for which ICANN itself should not be held liable. Protecting ICANN in this way helps support ICANN’s continued ability to serve its mission.

But it denies that the waiver is as all-encompassing as some fear:

There will be times, of course, where ICANN might not perform to an expected best practice, and that might be the cause of injury or damage to an attendee. Those claims against ICANN are not waived.

This apparently contradicts the waiver itself, which continues to say:

I knowingly and freely assume all risks related to illness and infectious diseases, including but not limited to COVID-19, even if arising from the negligence or fault of ICANN.

It also continues to require you to sign away your rights to sue, and your kids’ rights to sue, even if you die of Covid-19 due to ICANN’s “gross negligence”.

There may be a way to avoid the waiver.

Based on my experience, it appears that the waiver is presented in the registration path if you click the box indicating that you will be attending in-person, but if you ALSO check the box saying you’ll be attending remotely then the waiver does not appear.

So if you’re planning on attending in a hybrid fashion, perhaps in-person for only a day or two and on Zoom for the balance, ICANN doesn’t need you to waive your rights.

I expect this is a glitch in how the web form is configured that will probably be fixed not too long after I publish this article.

ICANN 74 will take place in The Hague, and Zoom, in June.

Blacknight objects to ICANN 74 Covid waiver

Irish registrar Blacknight has objected to ICANN’s demand that attendees at its forthcoming 74th public meeting sign a legal waiver over the potential for Covid-19 infections.

CEO Michele Neylon has written (pdf) to his ICANN counterpart and chair Maarten Botterman to complain that the waiver is “excessive” and “unreasonable”.

Neylon said he’d consulted his lawyer and concluded: “I cannot sign this waiver and I obviously cannot ask any of my staff to do so either.”

“[The lawyers] agree that you would want to reduce your liability, but you cannot expect people to grant you a blanket exclusion of liability which includes actual fault,” he wrote.

As I reported earlier in the week, registering for ICANN 74 requires attendees to agree to a waiver which states:

I knowingly and freely assume all risks related to illness and infectious diseases, including but not limited to COVID-19, even if arising from the negligence or fault of ICANN.

The four-day June meeting is set to be the first to have an in-person component — in The Hague, the Netherlands — since the pandemic began two years ago. Zoom participation will also be a prominent feature.

Attendees are strictly expected to be double or triple-vaccinated, wear masks, and socially distance while at the venue. There will also be “health checks” whenever you enter the venue.

Blacknight has no complaint about these precautions, but wants ICANN to reconsider the legal waiver.

ICANN lists the reasons I probably won’t be going to ICANN 74

“Don’t blame us if you die!”

That’s one of the messages coming out of ICANN, which has confirmed that it’s returning to in-person meetings for ICANN 74 this June.

The “hybrid” four-day meeting in The Hague is going ahead, but under strict Covid-19 mitigation rules that seem a bit too annoying for this particular potential attendee.

If you want to get in the venue, you’ll need to show proof of a full course of WHO-approved vaccinations, wear a face mask, stay an appropriate distance away from your peers, and subject yourself to a temperature check and “health screening” every time you walk through the door.

You’ll be issued a wrist-band on first entry that you have to keep visible at all times. If you lose it, you’ll have to re-verify your vaccination status.

As somebody who got irritated by even the metal detectors as pre-Covid ICANN meetings, this all seems a bit too much of a hassle for me, despite The Hague being pretty much right on my doorstep. I probably won’t go, at least not for the full four days.

There will be no on-site registration, and you’ll have to register your attendance online five days in advance of the meeting, which begins June 13.

ICANN’s also asking attendees to sign away their rights, and their children’s rights, to sue if they get sick, even if they catch the virus from general counsel John Jeffrey walking up and sneezing a Covid payload directly into their eyes.

As spotted by Michele Neylon, the registration process for ICANN 74 contains an extensive, obligatory waiver that contains the following text:

Participation in the Event includes possible exposure to and illness from infectious diseases including but not limited to COVID-19. While particular rules and personal discipline may reduce this risk, the risk of serious illness and death exists. I knowingly and freely assume all risks related to illness and infectious diseases, including but not limited to COVID-19, even if arising from the negligence or fault of ICANN. I understand that, unless otherwise confirmed in writing by ICANN, if I am suggested or required to take diagnostic tests, seek medical treatment, extend my stay due to quarantine or illness, or otherwise change travel arrangements, I am responsible for making such arrangements and all costs incurred. I understand that ICANN recommends that I obtain appropriate insurance to cover these risks.

…

I hereby knowingly assume all risks, and covenant not to sue any employees, board members, agents, executives, contractors or volunteers of ICANN or its affiliate for any expense, loss, damage, personal injury, including loss of life, illness, including but not limited to COVID-19, disability, property damage, or property theft or actions of any kind that I may hereafter suffer or sustain before, during, or after the Event, unless said expense, loss, damage, personal injury, including loss of life, illness, disability, property damage or property theft or actions of any kind is caused by the sole, gross negligence of ICANN or its affiliate. This Liability Waiver and Release is specifically binding upon my heirs and assigns and is knowingly given.

I agree to indemnify and hold ICANN and its affiliate harmless from and against any claims, suits, causes of action, loss, liability, damage or costs, including court cost and attorneys’ fees, and fees to enforce this Agreement, that ICANN may incur arising from my involvement in the Event.

This kind of waiver is par for the course with ICANN. Just ask any new gTLD applicant. ICANN really, really doesn’t like being sued.

ICANN has outlined its health-and-safety measures, which may change, here. The waiver can be read during the registration process.