Battle over .jobs to drag on into 2013

Employ Media’s fight to avoid losing its contract to run .jobs won’t be resolved this year, according to the latest batch of arbitration documents published by ICANN.
February 2013, two years after the the battle was joined, is now the absolute earliest the company could find out whether ICANN has the right to shut down .jobs due to an alleged contract breach.
As you may recall from deep in the mists of time (actually, February last year) ICANN threatened to terminate Employ Media’s contract due to the controversial .Jobs Universe project.
The registry gave thousands of .jobs domains, mostly geographic or vocational strings, to its partner, the DirectEmployers Association, which started competing against jobs listings sites.
A coalition of jobs sites including Monster.com complained about this on the basis that .jobs was originally designed for companies to list their own jobs, not to aggregate third-party listings.
The coalition believed that the .Jobs Universe project was essentially a fait accompli, despite Employ Media’s promise that all the names now allocated to DirectEmployers would be subject to an open RFP process.
ICANN eventually agreed with the coalition, issued a breach notice, and now it finds itself in arbitration under the auspices of the International Chamber of Commerce.
Employ Media demanded arbitration in May last year, but it has inexplicably taken until now for it, ICANN and the ICC to publish a draft timetable for the process.
A face-to-face hearing has now been scheduled for January 28 to February 8, 2013. Between now and December, it’s paper filings – claims and counterclaims – all the way.
Arbitration clauses were added as standard to ICANN’s registry agreements in order to create a cheaper, faster option than fighting out disagreements in the courts.
However, with both sides lawyered up and a process now likely to last at least two years, it’s easy to wonder just how much more efficient it will be.
It won’t be an easy decision for the ICC panel.
While I still believe Employ Media was a bit sneaky about how it won ICANN approval for the .Jobs Universe project – and it certainly disenfranchised other jobs sites – there’s no denying that .jobs is now a much healthier gTLD for registrants as a result of DirectEmployers’ involvement.
An ICANN win might actually be a bad thing.

ICANN demands the right to terminate .jobs

ICANN has asked the International Chamber of Commerce to rule that it has the right to terminate Employ Media’s .jobs contract.
It’s filed its response to Employ Media’s demand for arbitration over the disputed Universe.jobs service, which saw the registry vastly expand the .jobs space.
Employ Media “transcended the very intent behind creation of the TLD” with Universe.jobs, which allocated tens of thousands of .jobs domains to the DirectEmployers Association, ICANN said.
The organization wants the ICC to rule that it “may, but is not required to, terminate the Registry Agreement with Employ Media”, as it has already threatened.
Employ Media took ICANN to arbitration in May, after ICANN notified it that it was in breach of its registry agreement and they were not able to settle their differences in private talks.
The registry wants a declaration that it is not in breach.
But according to ICANN, Employ Media is still and has always been restricted to selling domains just to human resources professionals to promote jobs “within their own organizations”.
That’s despite ICANN’s approval of a contract amendment last year that allowed the registry to sell non-companyname .jobs domains.
This liberalization, ICANN says, did not allow the company to launch Universe.jobs, which monetizes at least 40,000 geographical and vocational .jobs through a massive third-party jobs board.
ICANN is now trying to frame the arbitration proceeding around a single question – was its breach notice “appropriate” or not?
The whole debacle is based around two interpretations of the .jobs Charter, which spells out who can register .jobs domains. This is what it says:

The following persons may request registration of a second-level domain within the .JOBS TLD:
– members of SHRM [the Society For Human Resources Management]; or
– persons engaged in human resource management practices that meet any of the following criteria: (i) possess salaried-level human resource management experience; (ii) are certified by the Human Resource Certification Institute; (iii) are supportive of the SHRM Code of Ethical and Professional Standards in Human Resource Management, as amended from time to time, a copy of which is attached hereto.

Employ Media’s interpretation is fairly literal and liberal – any signed-up SHRM member can register a .jobs domain and somebody at DirectEmployers is a member and therefore eligible.
Becoming a SHRM member is pretty straightforward and cheap. It’s not much of a barrier to entry.
ICANN argues that this interpretation is bogus:

Employ Media has espoused policies that allow a .JOBS domain name (or thousands of them) to be used for virtually any purpose as long as a human resource manager is propped up to “request” the domain. In doing so, Employ Media has failed to enforce meaningful restrictions on .JOBS registrations, as required by the Registry Agreement.

It further argues that Employ Media should have allocated premium .jobs domains through an “open, fair and transparent” process, rather than the “self-serving… backroom deal” with DirectEmployers.
Evidence now filed by ICANN shows that the two organizations have been arguing about this since at least November 2009, when Employ Media launched a Universe.jobs “beta”.
ICANN also now says that it has no problem with Universe.jobs, provided that Employ Media and SHRM amend their Charter policies to make the service retroactively compliant.
The more this dispute progresses and the more convoluted and expensive it becomes, the more it leaves me scratching my head.
You can download the latest arbitration documents from ICANN.

ICANN tries to dodge .jobs legal fees

“Please don’t sue us!”
That’s the message some are taking away from the latest round of published correspondence between lawyers representing ICANN and .jobs registry Employ Media.
Employ Media last week said it will take ICANN to the International Chamber of Commerce, after they failed to resolve their dispute over the company’s controversial Universe.jobs venture.
Now ICANN has asked the registry’s executives to return to the negotiating table, apparently to reduce the risk of having to spend millions of dollars on lawyering.
In a letter (pdf) to Employ Media’s attorneys, ICANN outside counsel Eric Enson of Jones Day said that ICANN wishes to avoid “costly legal fees associated with arbitration or litigation”:

I again request a meeting among the business persons involved in this matter to discuss potential resolutions before spending more of ICANN’s funding on unnecessary litigation.

The latest round of published correspondence, like the last one, and the one before that, seems to contain a fair bit of legal posturing, with both sides accusing the other of conducting negotiations in “bad faith” for various reasons.
Filing the arbitration notice with the ICC might turn out to be a smart move by Employ Media, knowing how risk-averse and cash-conscious ICANN is.
ICANN is still smarting from the last time it headed to arbitration, for its Independent Review Panel over ICM Registry’s .xxx top-level domain.
ICANN lost that case in February 2010, and had to cover the panel’s almost $500,000 in costs, as well as its own legal fees. The overall price tag is believed to have comfortably made it into seven figures.
But that may well turn out to be small beer compared to the price of losing arbitration against the .jobs registry.
Unlike the IRP, in which both parties pay their own lawyers no matter who wins, Employ Media’s contract states that the losing party in arbitration must pay the legal fees of the winner.
To go up against .jobs at the ICC and lose could hit ICANN’s coffers harder than the .xxx dispute, in other words. That’s not to say it would lose, but with matters as complex as this there is that risk.
It’s worth noting that Employ Media’s lead attorney has form when it comes to reaching into ICANN’s pockets – Crowell & Moring’s Arif Ali also represented ICM Registry in the .xxx IRP case.