.music update: I’m calling it for Costa

Amazon has pulled out of the fight for the .music gTLD, and I’m ready to call the race.
In full knowledge that this could be my “Dewey Defeats Truman” moment, it seems to me the balance of evidence right now is strongly pointing to a win for DotMusic over sole remaining rival bidder MMX.
The contention set originally had eight applicants, but six — Google, Donuts, Radix, Far Further, Domain Venture Partners and last night Amazon — have withdrawn over the last week or so.
This is a sure sign that the battle is over, and that the rights to .music have been auctioned off.
The two remaining applicants yet to withdraw are DotMusic Ltd, the Cyprus-based company founded and managed by music enthusiast and entrepreneur Constantinos Roussos, and Entertainment Names Inc, a joint venture managed by MMX (aka Minds + Machines).
One of them will withdraw its application soon, and my money’s on MMX.
Neither company will talk to me about the result.
But, as I observed Monday, DotMusic has recently substantially revamped its web site, and appears to be accepting “pre-registrations” for .music domains. These are not the actions of a loser.
MMX, on the other hand, has never shared Roussos’ public enthusiasm for .music and has never been particularly enthusiastic about winning private gTLD auctions, usually preferring instead to enjoy the proceeds of losing.
There are only two wildcard factors at play here that may soon make me look foolish.
First, the joint venture partner for Entertainment Names is an unknown quantity. Its two directors, listed in its .music application, are a pair of Hollywood entertainment lawyers with no previous strong connection to the ICANN ecosystem. I’ve no idea what their agenda is.
Second, MMX did not mention .music once in the “Post Period Highlights” of its recently filed 2018 financial results statement. It did mention the resolution of the .gay and .cpa contention sets, but not .music.
That filing came out April 3, at least a few days after the contention set had been won, but I’m assuming that the tight timing and/or non-disclosure agreements are probably to blame for the lack of a mention for .music.
So, on balance, I’m calling it for Roussos.
With a bit of luck we’ll have confirmation and maybe a bit of detail about potential launch dates before the week is out.

Did Roussos pull off the impossible? Google, Donuts, Radix all drop out of .music race

Google won’t be the registry for the .music gTLD.
The company, along with pure-play registries Donuts and Radix, late last week withdrew their respective applications from the .music contention set, leaving just three possible winners in the running.
Those are Amazon, MMX, and DotMusic, the company run by long-time .music fanboy Constantinos Roussos.
As I blogged last week, applications from Domain Venture Partners and Far Further have also been withdrawn.
I suspect, but do not know for a fact, that the contention was settled with a private deal, likely an auction, recently.
The logical guess for a winner would be Amazon, if only because of the nexus of its business to the music industry and the amount of money it could throw at an auction.
But I’m beginning to suspect that DotMusic might have prevailed.
The company appears to have recently revamped its web site, almost as if it’s gearing up for a launch.
Comparing the current version of music.us to versions in Google’s cache, it appears that the site has been recently given a new look, new copy and even a new logo.
It’s even added a prominent header link inviting prospective resellers to sign up, using a form that also appears to have been added in the last few weeks.
These changes all seem to have been made after the crucial ICANN vote that threw out the last of DotMusic’s appeals, March 14.
Are those the actions of an applicant resigned to defeat, or has Roussos pulled off the apparently impossible, defeating two of the internet’s biggest companies to one of the industry’s most coveted and controversial strings?
Participants in gTLD auctions typically sign NDAs, so we’re going to have to wait a bit longer (probably no more than a few days) to find out which of the remaining three applicants actually won.

Looks like .music is finally on its way

The hard-fought battle for .music appears to be over.
I’m not yet in a position to tell you which of the eight applicants for the new gTLD has been successful, but I can tell you some of those who were not.
Two applicants have this week withdrawn their bids, an almost certain sign that the contention set has been privately settled.
The first applicant to ditch its bid was dot Music Ltd, an application vehicle of Domain Venture Partners (we used to call this outfit Famous Four Media, but that’s changed).
The other is .music LLC, also known as Far Further.
We can almost certainly expect all but one of the remaining applicants to withdraw their applications over the coming days.
Applicants typically sign NDAs when they settle contention privately, usually via an auction.
Far Further was one of two unsuccessful “community” applicants for .music. It had the backing of dozens of music trade groups, including the influential Recording Industry Association of America. Even Radiohead’s guitarist chipped in with his support.
Evidently, none of these groups were prepared to fund Far Further to the extent it could win the .music contention set.
The .music contention set has been held up by the continuing protestations of the other community applicant, DotMusic Limited, the company run by long-time .music cheerleader Constantinos Roussos.
After DotMusic lost its Community Priority Evaluation in 2016, on the basis that the “community” was pretty much illusory under ICANN rules, it started to complain that the process was unfair.
The applicant immediately filed a Request for Reconsideration with ICANN.
.music then found itself one of several proposed gTLDs frozen while ICANN conducted an outside review of alleged irregularities in the CPE process.
That review found no impropriety in early 2018, a verdict DotMusic’s lawyer dismissed as a “whitewash”.
It has since stalled the process several times with requests for information under ICANN’s Documentary Information Disclosure Policy, and more RfRs when those requests were denied.
But this series of appeals finally came to an end March 14, when ICANN’s board of directors finally ruled against DotMusic’s 2016 RfR.
That appears to have opened up the .music set for private resolution.
So who won? I don’t know yet, but the remaining applicants are: DotMusic itself, Google, Amazon, MMX, Donuts and Radix.
There are certainly two very deep-pocketed companies on that list. Could we be looking at Google or Amazon as the new proprietors of .music?
If either of those companies has won, prospective registrants might find they have a long wait before they can pick up a .music domain. Neither of these giants has a track record of rushing its new gTLDs to market.
If the victor is a conventional gTLD registry, we’d very probably be looking at a launch in 2019.

Economist would sue ICANN if it publishes private emails

The Economist Intelligence Unit has threatened to sue ICANN if it publishes emails related to its evaluations of “community” gTLDs.
That’s according to a document published by ICANN this week, in which the organization refused to reveal any more information about a controversial probe into the Community Priority Evaluations the EIU conducted on its behalf.
EIU “threatened litigation” should ICANN publish emails sent between the two parties, the document states.
New gTLD applicant DotMusic, which failed its CPE for .music but years later continues to fight for the decision to be overturned, filed a Documentary Information Disclosure Policy request with ICANN a month ago.
DIDP is ICANN’s equivalent of a Freedom of Information Act.
DotMusic’s request among many other items sought the release of over 100,000 emails, many sent between ICANN and the EIU, that ICANN had provided to FTI Consulting during FTI’s investigation into whether the CPEs were fair, consistent and absent ICANN meddling.
But in its response this week, ICANN pointed out that its contract with EIU, its “CPE Provider”, has confidentiality clauses:

ICANN organization endeavored to obtain consent from the CPE Provider to disclose certain information relating to the CPE Process Review, but the CPE Provider has not agreed to ICANN organization’s request, and has threatened litigation should ICANN organization breach its contractual confidentiality obligations. ICANN organization’s contractual commitments must be weighed against its other commitments, including transparency. The commitment to transparency does not outweigh all other commitments to require ICANN organization to breach its contract with the CPE Provider.

DotMusic’s DIDP sought the release of 19 batches of information, which it hopes would bolster its case that both the EIU’s original reviews and FTI’s subsequent investigation were flawed, but all requests were denied by ICANN on various grounds.
In more than one instance, ICANN claims attorney-client privilege under California law, as it was actually ICANN’s longstanding law firm Jones Day, rather than ICANN itself, that contracted with FTI.
The FTI report cleared ICANN of all impropriety and said the EIU’s CPE process had been consistent across each of the gTLD applications it looked at.
The full DIDP request and response can be found here.
ICANN has yet to make a decision on .music, along with .gay, .hotel, .cpa, and .merck, all of which were affected by the CPE reviews.

CPE probe: “whitewash” or “fig leaf”?

A few weeks ago, when I was reporting the conclusions of a probe into ICANN’s new gTLD program, I wrote a prediction on a piece of paper and placed it into a sealed envelope.*
I wrote: “They’re gonna call this a whitewash.”
And I was correct! Ta-dah! I’m here all week.
The lawyer for applicants for .music and .gay gTLDs has written to ICANN to complain that a purportedly independent review of the Community Evaluation Process was riddled with errors and oversights and should not be trusted.
In a letter on behalf of dotgay LLC, Arif Ali calls the report a “whitewash”. In a letter on behalf of DotMusic, he calls it a “fig leaf”.
Both companies think that the CPE probe was designed to give ICANN cover to proceed with auctions for five outstanding gTLD contention sets, rather than to get to the bottom of perceived inconsistencies in the process.
Both of Ali’s clients applied for their respective gTLDs as “community” applicants, trying to avoid auctions by using the Community Priority Evaluation process.
During their CPEs, both carried out by the Economist Intelligence Unit, neither applicant scored highly enough to win the exclusive right to .gay or .music, meaning the next stage was to auction the strings off to the highest bidder.
After repeated complaints from applicants and an Independent Review Process finding that ICANN lacked transparency and that staff may have had inappropriate influence over the EIU, ICANN hired FTI Consulting to look into the whole CPE process.
FTI’s report was finally delivered late last year, clearing ICANN on all counts of impropriety and finding that the EIU’s evaluations had been consistent across each of the applications it looked at.
The remaining gTLDs affected by this are .music, .gay, .hotel, .cpa, and .merck.
ICANN’s board of directors is due to meet to discuss next steps this weekend, but Ali says that it should “critically evaluate the [FTI] Report and not accept its wholesale conclusions”. He wrote, on behalf of DotMusic:

The report reveals that FTI’s investigation was cursory at best; its narrow mandate and evaluation methodology were designed to do little more than vindicate ICANN’s administration of the CPE process.
…
It is evident that FTI engaged in a seemingly advocacy-driven investigation to reach conclusions that would absolve ICANN of the demonstrated and demonstrable problems that afflicted the CPE process.

Among the applicants’ list of complaints: their claim that FTI did not interview affected applicants or take their submissions seriously, and the fact that ICANN was less than transparent about who was conducting the probe and what its remit was.
The same letter quotes ICANN chair Cherine Chalaby, then vice-chair, saying in a January 2017 webinar that he had observed inconsistencies in how the CPEs were carried out; inconsistencies FTI has since found did not occur.
That should be enough to provoke discussion when the board meets to discuss this and other issues in Los Angeles on Saturday.
* I didn’t actually do this of course, I just thought about it, but you get my point.

.music and .gay possible in 2018 after probe finds no impropriety

Five more new gTLDs could see the light of day in 2018 after a probe into ICANN’s handling of “community” applications found no wrongdoing.
The long-running investigation, carried out by FTI Consulting on ICANN’s behalf, found no evidence to support suspicions that ICANN staff had been secretly and inappropriately pulling the strings of Community Priority Evaluations.
CPEs, carried out by the Economist Intelligence Unit, were a way for new gTLD applicants purporting to represent genuine communities to avoid expensive auctions with rival applicants.
Some applicants that failed to meet the stringent “community” criteria imposed by the CPE process appealed their adverse decisions and an Independent Review Process complaint filed by Dot Registry led to ICANN getting crucified for a lack of transparency.
While the IRP panel found some hints that ICANN staff had been nudging EIU’s arm when it came to drafting the CPE decisions, the FTI investigation has found:

there is no evidence that ICANN organization had any undue influence on the CPE Provider with respect to the CPE reports issued by the CPE Provider or engaged in any impropriety in the CPE process.

FTI had access to emails between EIU and ICANN, as well as ICANN internal emails, but it did not have access to EIU internal emails, which EIU declined to provide. It did have access to EIU’s internal documents used to draft the reports, however.
Its report states:

Based on FTI’s review of email communications provided by ICANN organization, FTI found no evidence that ICANN organization had any undue influence on the CPE reports or engaged in any impropriety in the CPE process. FTI found that the vast majority of the emails were administrative in nature and did not concern the substance or the content of the CPE results. Of the small number of emails that did discuss substance, none suggested that ICANN acted improperly in the process.

FTI also looked at whether EIU had applied the CPE rules consistently between applications, and found that it did.
It also dug up all the sources of information EIU used (largely Google searches, Wikipedia, and the web pages of relevant community groups) but did not directly cite in its reports.
In short, the FTI reports very probably give ICANN’s board of directors cover to reopen the remaining affected contention sets — .music, .gay, .hotel, .cpa, and .merck — thereby removing a significant barrier to the gTLDs getting auctioned.
If there were to be no further challenges (which, admittedly, seems unlikely), we could see some or all of these strings being sold off and delegated this year.
The probe also covered the CPEs for .llc, .inc and .llp, but these contention sets were resolved with private auctions last September after applicant Dot Registry apparently decided it couldn’t be bothered pursuing the ICANN process any more.
The FTI’s reports can be downloaded from ICANN.

.music and .gay CPE probe could end this month

An ICANN-commissioned investigation into the fairness of its Community Priority Evaluation process for new gTLDs could wind up before the end of June.
In an update Friday, ICANN also finally revealed who is actually conducting the probe, which has been slammed by affected applicants for being secretive.
A tentative timeline sketched out in the update means applicants for gTLDs including .gay and .music could find their applications closer to release from limbo in just a few weeks.
ICANN revealed that FTI Consulting’s Global Risk and Investigations Practice and Technology Practice have been looking into claims ICANN staff meddled in the Economist Intelligence Unit’s supposedly independent CPE reviews for the last several months.
FTI is reviewing how ICANN staff interacted with the EIU during the CPE processes, how the EIU conducted its research and whether the EIU applied the CPE criteria uniformly across different gTLDs.
ICANN said that FTI finished collected material from ICANN in March and hopes to have all the information it has asked the EIU for by the end of this week.
It could deliver its findings to ICANN two weeks after that, ICANN said.
Presumably, there would be little to prevent ICANN publishing these findings very shortly thereafter.
ICANN has been harangued by some of the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which have been affected by controversial CPE decisions and have been delayed by the investigation, for months.

.gay, .music and others in limbo as ICANN probes itself

Several new gTLD applicants have slammed ICANN for conducting an investigation into its own controversial practices that seems to be as opaque as the practices themselves.
Seven proposed new gTLDs, including the much-anticipated .music and .gay, are currently trapped in ICANN red tape hell as the organization conducts a secretive probe into how its own staff handled Community Priority Evaluations.
The now broad-ranging investigation seems have been going on for over six months but does not appear to have a set deadline for completion.
Applicants affected by the delays don’t know who is conducting the probe, and say they have not been contacted by anyone for their input.
At issue is the CPE process, designed to give genuine “community” gTLD applicants a way to avoid a costly auction in the event that their choice of string was contested.
The results of the roughly 25 CPE decisions, all conducted by the independent Economist Intelligence Unit, were sometimes divergent from each other or just baffling.
Many of the losers complained via ICANN’s in-house Requests for Reconsideration and then Independent Review Process mechanisms.
One such IRP complaint — related to Dot Registry’s .inc, .llc, .llp applications — led to two of the three-person IRP panel deciding last July that ICANN had serious questions to answer about how the CPE process was carried out.
While no evidence was found that ICANN had coached the EIU on scoring, it did emerge that ICANN staff had supplied margin notes to the supposedly independent EIU that had subsequently been incorporated into its final decision.
The IRP panel majority wrote that the EIU “did not act on its own in performing the CPEs” and “ICANN staff was intimately involved in the process”.
A month or so later, the ICANN board of directors passed a resolution calling for the CEO to “undertake an independent review of the process by which ICANN staff interacted with the CPE provider”.
Another month later, in October, the Board Governance Committee broadened the scope of the investigation and asked the EIU to supply it with documents it used to reach its decisions in multiple controversial CPE cases.
A couple of weeks ago, BGC chair Chris Disspain explained all this (pdf) to the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which are affected by the delay caused by the investigation.
He said that the investigation would be completed “as soon as practicable”.
But in response, Dot Registry and lawyers for fellow failed CPE applicant DotMusic have fired off more letters of complaint to ICANN.
(UPDATE: Dot Registry CEO Shaul Jolles got in touch to say his letter was actually sent before Disspain’s, despite the dates on the letters as published by ICANN suggesting the opposite).
Both applicants note that they have no idea who the independent party investigating the CPEs is. That’s because ICANN hasn’t identified them publicly or privately, and the evaluator has not contacted the applicants for their side of the story.
DotMusic’s lawyer wrote (pdf):

DotMusic’s rights are thus being decided by a process about which it: (1) possesses minimal information; (2) carried out by an individual or organization whose identity ICANN is shielding; (3) whose mandate is secret; (4) whose methods are unknown; and (5) whose report may never be made public by ICANN’s Board.

He added, pointedly:

The exclusion of directly affected parties from participation eerily reproduces the shortcomings of the EIU evaluations that are under scrutiny in the first place.

Dot Registry CEO Shaul Jolles, in his letter (pdf), quoted Disspain saying at a public forum in Copenhagen this March that a blog post addressing the concerns had been drafted and would be published “shortly”, but wasn’t.
He suggested the investigation is “smoke and mirrors” and, along with DotMusic, demanded more information about the investigator’s identity and methods.
It does strike me as a looking a bit like history repeating itself: ICANN comes under fire for non-transparently influencing a supposedly independent review and addresses those criticisms by launching another non-transparent supposedly independent review.
No matter what I feel about the merits of the “community” claims of some of these applicants, it has been over five years now since they submitted their applications and the courtesy of transparency — if closure itself its not yet possible — doesn’t seem like a great deal to ask.

DotMusic fails the “not gay enough” community test

DotMusic’s Community Priority Evaluation for the .music gTLD has failed, after the CPE panel decided the company was just trying to exploit ICANN rules to get its hands on a valuable string.
In a decision (pdf) published last night, the company score 10 of the available 16 points, four points shy of a passing score. The panel wrote:

The Panel determined that this application refers to a proposed community construed to obtain a sought-after generic word as a gTLD. As previously stated, the community as defined in the application does not have awareness and recognition among its members. Failing this kind of “cohesion,” the community defined by the application does not meet the [Applicant Guidebook’s] standards for a community.

The CPE fell apart at the first hurdle, with the panel awarding 0 out of 4 points on the “community establishment”.
It essentially ruled that the “music community” does not exist, despite frequent statements to the contrary from DotMusic and its legion of supporters.
DotMusic appears to have been condemned for the same reason as dotgay, the failed .gay community applicant.
While DotMusic and dotgay lost points on different criteria, their undoing in both cases was attempting to define a community that their respective panels judged overly broad.
DotMusic’s application included a list of 40 or more North American Industry Classification System categories of industry that it said were within its music community.
However, where it said “music lawyers” or “music accountants”, it referred to the NAICS codes for just “lawyers” and “accountants”, the panel noted.
This seems to have been responsible to a large extent for it losing its points on the “community establishment” criteria.
The CPE panel could said that while its proposed community members exhibited a “commonality of interest” there was no evidence of “cohesion” among them.
Further, no one preexisting organization could be said to cover the interests of the over-broad community as defined. The panel wrote:

There should, therefore, be at least one entity that encompasses and organizes individuals and organizations in all of the more than 40 member categories included by the application. Based on information provided in the application materials and the Panel’s research, there is no entity that organizes the community defined in the application in all the breadth of categories explicitly defined.

A knock-on effect of this was that DotMusic also dropped a point on the “community endorsement” criteria, despite having hundreds of letters of support from members of the music industry.
It dropped a further point because the string “music” only “identifies” but does not “match” its proposed community.
DotMusic will perhaps not take comfort from the fact that its losing score of 10 comprehensively beat rival community applicant Far Further by seven points.
With both community applications ruled invalid, .music should now head to auction, where there are eight applicants in total.
But .music is a bit of a passion project for DotMusic CEO Constantine Roussos — one of the few applicants who publicly announced his intention to apply long before it was possible to do so — so I think an appeal through the ICANN process is inevitable.
While DotMusic has support from powerful music industry figures, I don’t think that support extends to the kind of financial backing that will let it win a seven-to-eight-figure auction.
Don’t expect to see .music in your registrar storefront any time soon.

Radiohead backs .music community bid

Ed O’Brien, guitarist with the band Radiohead, has become the latest musician to throw his support behind DotMusic’s community-based application for the new gTLD .music.
In a letter to ICANN today (pdf), O’Brien said that if DotMusic loses its ongoing Community Priority Evaluation, it will “be setting back the world’s chances of a Fair Trade Music Industry by many years”.
“I challenge The Internet Corporation for Assigned Names and Numbers views that the global music community to which I belong does not exist,” he wrote.
He’s arguably the highest-profile musician to support DotMusic to date. Radiohead have sold over 30 million records and a few years ago O’Brien was ranked by Rolling Stone as the 59th greatest guitarist of all time.
The phrase “Fair Trade Music Industry” appears to have been coined last week at TechCrunch Disrupt by Grammy-nominated musician Imogen Heap, another one of DotMusic’s celebrity supporters.
It refers to the notion that artists should be fairly compensated for their work, opposing services such as Spotify, which reportedly pays artists less than a tenth of a cent every time one of their songs is played.
Both Heap and Radiohead are noted for their innovative uses of technology in their music (for example, listen to Radiohead’s incredible 1997 album OK Computer, bootlegs of which are available to stream for free on YouTube).
Radiohead is also known for its love-hate relationship with internet-based music business models.
In 2007, Radiohead released a new album for free on its web site, allowing fans to set their own price. But in 2013, it pulled its back catalog from Spotify, with lead singer Thom Yorke calling the service “the last desperate fart of a dying corpse”.
Its music is back on Spotify now.
But you can see why the band would support DotMusic’s application for .music, which proposes a number of novel rights protection mechanisms covering not just trademarks, but also copyright.
One interesting proposal is to ban any domain name from .music if a matching domain in another TLD has received over 10,000 copyright infringement notices from a big music industry body. This is to prevent TLD “hopping” affecting .music.
So, for example, if thepiratebay.com had received 10,000 notices, thepiratebay.music would be permanently blocked from registration.
The company is proposing a somewhat restricted namespace too, where only “community members” are allowed to register domains.
But prospective registrants merely need to self-identify as a member of one of the community’s dozens of subsets — which includes “fans” and “bloggers” — in order to register.
Parking will be prohibited, however, which would cut down on domain investor speculation.
Quite how .music will enhance the move for “fair trade” for artists is not entirely clear from O’Brien’s letter. After .music launches, there will still be hundreds of other TLDs that do not have DotMusic’s rules in place.
It’s also unlikely that the Economist Intelligence Unit, which is currently handling the CPE, will even see O’Brien’s letter.
ICANN told DotMusic (pdf) recently that the EIU “may not consider” any support letters received after October 13, which was two months after the official deadline for letters to be submitted.
DotMusic has letters of support — mostly the same letter with a different signature — from literally hundreds of musicians, trade groups, producers and publishers.
CEO Constantine Roussos told DI last week that it has more support letters than all the other “Community” gTLD applicants combined.
He said he’s confident that DotMusic’s CPE will be successful, citing positive precedent set by EIU panels in .osaka, .hotel and .radio CPE cases.
But the closest precedent we have so far is the Far Further application for .music, which comprehensively lost its CPE a year ago, scoring just three points out of the available 16, well short of the 14-point passing score.
There are differences between the applications, but Far Further’s CPE panel told it that there was no such thing as “the music community”, which sets a pretty high bar for DotMusic to leap.
If DotMusic wins its CPE, the remaining seven competing applications for the string get kicked out of the program. If it loses, it goes to an auction it has little chance of winning.