Mitsubishi pulls plug on dot-brand gTLD

Japanese conglomerate Mitsubishi has told ICANN it no longer wishes to operate one of its dot-brand gTLDs.
The company has filed a termination notice covering its .mtpc domain, which stands for Mitsubishi Tanabe Pharma Corporation.
The gTLD was delegated in February 2015, but Mitsubishi has never put it to use.
Registry reports show only two names ever appeared in the .mtpc space.
It’s the 19th gTLD from the 2012 round to voluntarily self-terminate — or to allow ICANN to terminate it — after signing a Registry Agreement.
All terminated gTLDs so far have been dot-brands.
Mitsubishi also owns .mitsubishi. That dot-brand appeared earlier this year but also has not yet been put to use.

Donuts acquires stagnant .irish TLD

Donuts has acquired the new gTLD .irish, which is struggling to gain volume after about 18 months on the market.
The gTLD was applied for and operated by Dot-Irish LLC, a US company founded by Irish and Northern Irish entrepreneurs.
Since going to general availability in June last year, it managed to grow its zone file to a peak of about 2,300 names in the first year.
That’s since dropped off to about 2,000 names.
Even self-consciously Irish registrar Blacknight has only managed to shift fewer than 500 names.
These numbers are disappointing any way you look at them, with the original gTLD application talking about an addressable market of 6 million Irish citizens and 80 million more in the Irish diaspora.
Registrar support does not seem to have been the issue. Registrars with reach, including Tucows, Name.com, Host Europe Group and Go Daddy all sell the names.
Pricing may be a factor. While Blacknight promotes .irish prominently for about $10 a year, elsewhere prices can range from $40 to $50.
The terms of the acquisition, which Donuts said closed last month, have not been disclosed.
Donuts said it will migrate .irish to its own infrastructure March 1, 2017. All policies and protection mechanisms that apply to the rest of the 198-strong Donuts stables will be applied to .irish, the company said.

Donuts loses $22.5m .web lawsuit as judge rules gTLD applicants cannot sue

The promise not to sue ICANN that all new gTLD applicants made when they applied is legally enforceable, a California judge has ruled.
Judge Percy Anderson on Monday threw out Donuts’ lawsuit against ICANN over the controversial $135 million .web auction, saying the “covenant not to sue bars Plaintiff’s entire action”.
He wrote that he “does not find persuasive” an earlier and contrary ruling in the case of DotConnectAfrica v ICANN, a case that is still ongoing.
Donuts sued ICANN at first to prevent the .web auction going ahead.
The registry, and other .web applicants, were concerned that ultimately successful bidder Nu Dot Co was being covertly bankrolled by Verisign, which turned out to be completely correct.
Donuts argued that ICANN failed to adequately vet NDC to uncover its secret sugar daddy. It wanted $22.5 million from ICANN — roughly what it would have received if the auction had been privately managed, rather than run by ICANN.
But the judge ruled that Donuts’ covenant not to sue is enforceable. Because of that, he made no judgement on the merits of Donuts’ arguments.
Under the relevant law, Donuts had to show that the applicant contract was “unconscionable” both “procedurally” and “substantively”.
Basically, the question for the judge was: was the contract unfairly one-sided?
The judge ruled (pdf) that it was not substantively unconscionable and “only minimally procedurally unconscionable”. In other words: a bit crap, but not illegal.
He put a lot of weight on the fact that the new gTLD program was designed largely by the ICANN community and on Donuts’ business “sophistication”. He wrote:

Without the covenant not to sue, any frustrated applicant could, through the filing of a lawsuit, derail the entire system developed by ICANN to process applications for gTLDs. ICANN and frustrated applicants do not bear this potential harm equally. This alone establishes the reasonableness of the covenant not to sue.

Donuts VP Jon Nevett said in a statement yesterday that the fight over .web is not over:

Donuts disagrees with the Court’s decision that ICANN’s required covenant not to sue, while being unconscionable, was not sufficiently unconscionable to be struck down as a matter of law. It is unfortunate that the auction process for .WEB was mired in a lack of transparency and anti-competitive behavior. ICANN, in its haste to proceed to auction, performed only a slapdash investigation and deprived the applicants of the right to fairly compete for .WEB in accordance with the very procedures ICANN demanded of applicants. Donuts will continue to utilize the tools at its disposal to address this procedural failure.

It looks rather like we could be looking at an Independent Review Process filing, possibly the first to be filed under ICANN’s new post-transition rules.
Donuts and ICANN are already in the Cooperative Engagement Process — the mediation phase that usually precedes an IRP — with regards .web.
Second-placed bidder Afilias is also putting pressure on ICANN to overturn the results of the auction, resulting in a bit of a public bunfight with Verisign.
TL;DR — don’t expect to be able to buy .web domains for quite a while to come.

Amazon backtracks after pricing free Alexa list at over $900,000

Amazon has reversed, at least temporarily, its decision to yank its free list of the world’s most popular domains, after an outcry from researchers.
The daily Alexa list, which contains the company’s estimate of the world’s top 1 million domains by traffic, suddenly disappeared late last week.
The list was popular with researchers in fields such as internet security. Because it was free, it was widely used.
DI PRO uses the list every day to estimate the relative popularity of top-level domains.
After deleting the list, Amazon directed users to its Amazon Web Services portal, which had started offering the same data priced at $0.0025 per URL.
That’s not cheap. The cost of obtaining same data suddenly leaped from nothing to $912,500 per year, or $2,500 per day.
That’s beyond the wallets, I suspect, of almost every Alexa user, especially the many domain name tools providers (including yours truly) that relied on the data to estimate domain popularity.
Even scaling back usage to the top 100,000 URLs would be prohibitively expensive for most researchers.
While Amazon is of course free to price its data at whatever it thinks it is worth, no notice was given that the file was to be deleted, scuppering without warning goodness knows how many ongoing projects.
Some users spoke out on Twitter.

The quiet death of the @Alexa_Support top million sites is a grievous blow to internet researchers everywhere. $2500 per pull now.

— April King (@aprilmpls) November 21, 2016

Removing the top 1M list is a HUGE mistake. It was extremely useful to assess the impact of new security vulnerabilities. 🙁 @Alexa_Support

— Benjamin Beurdouche (@beurdouche) November 22, 2016

@Alexa_Support I'm disappointed, but I hope you reconsider. The Top 1M list is a standard reference in research. It's simply irreplaceable.

— Santiago Zanella (@xEFFFFFFF) November 22, 2016

I spent most of yesterday figuring out how to quickly rejigger DI PRO to cope with the new regime, but it seems I may have been wasting my time.
After an outcry from fellow researchers, Amazon has restored the free list. It said on Twitter:

Thanks to customer feedback, the top 1M sites is temporarily available again. We’ll provide notice before updating the file in the future

— Alexa Support (@Alexa_Support) November 22, 2016

It seems clear that the key word here is “temporarily”, and that the the restoration of the file may primarily be designed to give researchers more time to seek alternatives or wrap up their research.

Famous Four exec moves to CentralNic

Famous Four Media has lost its chief marketing officer to CentralNic.
Andy Churley joined the London-based registry services provider as group marketing manager this month, according to press release.
He’s been with FFM for the first few years of its entry into the gTLD game, overseeing the launches of cheap TLDs such as .science, .download and .bid.
Previously, he was with the registrar Group NBT.
CentralNic now of course is also in the registrar business, having acquired Internet.bs and Instra over the last few years.

.food goes live, and it’s a closed generic

The new gTLD .food went live in the DNS on Friday, but nobody except the registry will be able to register domains there.
In what I would argue is one of the new gTLD program’s biggest failures, .food will be a dot-brand, closed to all except the “brand” owner.
The registry is Lifestyle Domain Holdings, a subsidiary of US media company Scripps Networks.
Scripps runs the Food Network TV station in the States and the site Food.com. It has a trademark on the word “Food”.
Its registry agreement for .food, signed back in April, includes Specification 13, which allows registries to restrict all the second-level domains to themselves and their affiliates.
So food producers, restaurants, chefs and the like will never be able to use .food for their web sites.
ICANN signed the contract with Scripps despite objections from several entities including the Australian government, which warned “restricting common generic strings, such as .food, for the exclusive use of a single entity could have a negative impact on competition”.
Under ICANN rules hastily cobbled together after outrage over so-called “closed generics”, a registry cannot run as a dot-brand a gTLD that is:

a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others.

Almost all applications flagged as closed generics were subsequently amended to make them restricted but not brand-exclusive. Scripps was the major hold-out.
The loophole that allowed .food to stay in exclusive hands appears to be that Scripps’ trademark on “Food” covers television, rather than food.
If .food winds up publishing content about food, such as recipes and healthy eating advice, I’d argue that it would go against the spirit of the rules on closed generics.
It would be a bit like Apple getting .apple as a Spec 13 dot-brand and then using the gTLD to publish content about the fruit rather than computers.
No sites are currently live in .food.

GMO offers free SSL with .shop domains

GMO Registry is to offer .shop domain registrants a free one-year SSL certificate with every purchase.
The company said yesterday that the deal, made via sister certificate company GMO GlobalSign, should be in place by the end of the month.
The certs on offer appear to be the of low-end “Domain Validation” variety.
Nevertheless, GlobalSign usually sells them for over $150 per year, many times more expensive than .shop domains themselves.
Popular registrars are currently selling .shop names from $10 to $25.
There are about 90,000 domains in .shop’s zone file today.
That’s a goodish volume by new gTLD standards, but probably not good enough to help GMO recoup the $41.5 million it paid for .shop at auction any time soon.
Upsell opportunities such as the SSL offer, assuming they get any uptake, may help accelerate its path to breakeven.

Get ready for thousands of new two-letter domains

New gTLD registry operators have been given the right to start selling two-letter domains that match country codes.
Potentially thousands of names could start being released next year, resulting in a windfall for registries and possible opportunities for investors.
Some governments, however, appear to be unhappy with the move and how ICANN’s board of directors reached its decision.
The ICANN board yesterday passed a resolution that will unblock all two-letter domains that match country codes appearing on the ISO 3166 list, most of which are also ccTLDs.
While the resolution gives some protection to governments worried about abuse of “their” strings, it’s been watered down to virtually nothing.
In the first draft of the rules, published in July, ICANN said registries “must” offer an “Exclusive Availability Pre-registration Period” — a kind of mini-sunrise period limited to governments and ccTLD operators.
In the version approved by ICANN yesterday, the word “must” has been replaced by “may” and the word “voluntary” has been added.
In other words, registries won’t have to give any special privileges to governments when they start selling two-character names.
They will, however, have to get registrants to agree that they won’t pass themselves off as having affiliations with the relevant government. It looks like registries probably could get away with simply adding a paragraph to their terms of service to satisfy this requirement.
Registries will also have to “take reasonable steps to investigate and respond to any reports from governmental agencies and ccTLD operators of conduct that causes confusion with the corresponding country code in connection with the use of a letter/letter two-character ACSCII domain.”
This too is worded vaguely enough that it could wind up being worthless to governments, many of which are worried about domains matching their ccTLDs being passed off as government-approved.
The Governmental Advisory Committee is split on how worrisome this kind of thing is.
For examples, governments such as Spain and Italy have fought for the right to get to pre-approve the release of “es” and “it” domains, whereas the governments of the US and UK really could not care less.
The most-recent formal GAC advice on the subject, coming out of the July meeting in Helsinki, merely said ICANN should:

urge the relevant Registry or the Registrar to engage with the relevant GAC members when a risk is identified in order to come to an agreement on how to manage it or to have a third-party assessment of the situation if the name is already registered

“It is our belief that that our resolution is consistent with GAC advice,” outgoing ICANN board member Bruce Tonkin said yesterday, noting that nobody can claim exclusive rights over any string, regardless of length.
Before and after the resolution passed, the GAC expressed “serious concern” that the board had not formally responded to the Helsinki communique.
In its Hyderabad communique, issued after yesterday’s vote, the GAC advised the board to:

• Clearly indicate whether the actions taken by the Board as referred to in the resolution adopted on 8 November 2016 are fully consistent with the GAC advice given in the Helsinki Communiqué.
• Always communicate in future the position of the Board regarding GAC advice on any matter in due time before adopting any measure directly related to that advice.

ICANN staff are now tasked with coming up with a way to implement the two-character release.
My sense is that some kind of amendment to Registry Agreements might be required, so we’re probably looking at months before we start seeing two-letter domains being released.

“Shadow content policing” fears at ICANN 57

Fears that the domain name industry is becoming a stooge for “shadow regulation” of web content were raised, and greeted very skeptically, over the weekend at ICANN 57.
Attendees yesterday heard concerns from non-commercial stakeholders, notably the Electronic Frontier Foundation, that deals such as Donuts’ content-policing agreement with the US movie industry amount to regulation “by the back door”.
But the EFF, conspicuously absent from substantial participation in the ICANN community for many years, found itself walking into the lion’s den. Its worries were largely pooh-poohed by most of the rest of the community.
During a couple of sessions yesterday, EFF senior attorney Mitch Stoltz argued that the domain industry is being used by third parties bent on limiting internet freedoms.
He was not alone. The ICANN board and later the community at large heard support for the EFF’s views from other Non-Commercial User Constituency members, one of whom compared what’s going on to aborted US legislation SOPA, the Stop Online Piracy Act.
“Regulation of content through the DNS system, through ICANN institutions and through contracted parties is of great concern and I think should be of great concern to all of us here,” Stoltz said.
He talked about a “bright line” between making policies related to domain names and policies related to content.
“I hope that the bright line between names and content is maintained because I think once we get past it, there may be no other bright line,” he said.
“If we allow in copyright enforcement, if we allow in enforcement of professional or business licensing as a criterion for owning a domain name, it’s going to be very hard to hold that line,” he said.
ICANN has long maintained, though with varying degrees of vigor over the years, that it does not regulate content.
Chair Steve Crocker said yesterday: “It’s always been the case, from the inception. It’s now baked in deeply into the mission statement. We don’t police content. That’s not our job.”
That kind of statement became more fervent last year, as concerns started to be raised about ICANN’s powers over the internet in light of the US government’s decision to give up its unique ICANN oversight powers.
Now, a month after the IANA transition was finalized, ICANN has new bylaws that for the first time state prominently that ICANN is not the content cops.
Page one of the massive new ICANN bylaws says:

ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide

It’s pretty explicit, but there’s a catch.
A “grandfather” clause immediately follows, which states that registries and registrars are not allowed to start challenging the terms of their existing contracts on the basis that they dabble too much with content regulation.
That’s mainly because new gTLD Registry Agreements all include Public Interest Commitments, which in many cases do actually give ICANN contractual authority over the content of web sites.
Content-related PICs are most prominent in “Community” gTLDs.
In the PICs for Japanese city gTLD .osaka, for example, the registry promises that “pornographic, vulgar and highly objectionable content” will be “adequately monitored and removed from the namespace”.
While ICANN does not actively go out looking for .osaka porn, if porn did start showing up in .osaka and the registry does not suspend the domains, it would be in breach of its RA and could lose its contract.
That PIC was voluntarily adopted by the .osaka registry and does not apply to other gTLDs, but it is binding.
So in a roundabout kind of way, ICANN does regulate content, in certain narrow circumstances.
Some NCUC members think this is a “loophole”.
Another back door they think could be abused are the bilateral “trusted notifier” relationships between registries and third parties such as the movie, music and pharmaceutical industries.
Donuts and Radix this year have announced that the Motion Picture Association of America is allowed to notify it about domains that it believes are being used for large-scale, egregious movie piracy.
Donuts said it has suspended a dozen domains — sites that were TLD-hopping to evade suspension — since the policy came into force.
EFF’s Stoltz calls this kind of thing “shadow regulation”.
“Shadow regulation to us is the regulation of content… through private agreements or through unaccountable means that were not developed through the bottom-up process or through a democratic process,” he told the ICANN board yesterday.
While the EFF and NCUC thinks this is a cause for concern, they picked up little support from elsewhere in the community.
Speakers from registries, registrars, senior ICANN staff, intellectual property and business interests all seemed to think it was no big deal.
In a different session on the same topic later in the day, outgoing ICANN head of compliance Allen Grogan addressed these kinds of deals. He said:

From ICANN’s point of view, if there are agreements that are entered into between two private parties, one of whom happens to be a registry or a registrar, I don’t see that ICANN has any role to play in deciding what kinds of agreements those parties can enter into. That clearly is outside the scope of our mission and remit.
We can’t compel a registrar or a registry to even tell us what those agreements are. They’re free to enter into whatever contracts they want to enter into.
To the extent that they become embodied in the contracts as PICs, that may be a different question, or to the extent that the agreements violate those contracts or violate consensus policies, that may be a different question.
But if a registrar or registry decides to enter into an agreement to trust the MPAA or law enforcement or anyone else in deciding what actions to take, I think they’re free to do that and it would be far beyond the scope of ICANN’s power or authority to do anything about that.

In the same session, Donuts VP Jon Nevett cast doubt on the idea that there is an uncrossable “bright line” between domains and content by pointing out that the MPAA deal is not dissimilar to registries’ relationships with the bodies that monitor online child abuse material.
“We have someone that’s an expert in this industry that we have a relationship with saying there is child imagery abuse going on in a name, we’re not going to make that victim go get a court order,” he said.
Steve DelBianco of the NetChoice Coalition, a member of the Business Constituency, had similar doubts.
“Mitch [Stoltz] cited as an example that UK internet service providers were blocking child porn and since that might be cited as an example for trademark and copyright that we should, therefore, not block child porn at all,” he said. “I can’t conceive that’s really what EFF is thinking.”
Nevett gave a “real-life example” of a rape.[tld] domain that was registered in a Donuts gTLD.
“[The site] was a how-to guide. Talk about horrific,” he said. “We got a complaint. I’m not going to wait till someone goes and gets a court order. We’re a private company and we agreed to suspend that name immediately and that’s fine. There was no due process. And I’m cool with that because that was the right thing to do.”
“Just like a restaurant could determine that they don’t want people with shorts and flip-flops in the restaurant, we don’t want illegal behavior and if they want to move somewhere else, let them move somewhere else,” he said.
In alleged copyright infringement cases, registrants get the chance to respond before their names are suspended, he said.
Stoltz argued that the Donuts-MPAA deal had been immediately held up, when it was announced back in February, as a model that the entire industry should be following, which was dangerous.
“If everyone is subject to the same policies, then they are effectively laws and that’s effectively law-making by other means,” he said.
He and other NCUC members are also worried about the Domain Name Association’s Healthy Domains Initiative, which is working on voluntary best practices governing when registries and registrars should suspend domain names.
Lawyer Kathy Kleiman of the NCUC said the HDI was basically “SOPA behind closed doors”.
SOPA was the hugely controversial proposed US federal legislation that would have expanded law enforcement powers to suspend domains in cases of alleged copyright infringement.
Stoltz and others said that the HDI appeared to be operating under ICANN’s “umbrella”, giving it an air of having multistakeholder legitimacy, pointing out that the DNA has sessions scheduled on the official ICANN 57 agenda and “on ICANN’s dime”.
DNA members disagreed with that characterization.
It seems to me that the EFF’s arguments are very much of the “slippery slope” variety. While that may be considered a logical fallacy, it does not mean that its concerns are not valid.
But if there was a ever a “bright line” between domain policy and content regulation, it was traversed many years ago.
The EFF and supporters perhaps should just acknowledge that what they’re really concerned about is copyright owners abusing their powers, and target that problem instead.
The line has moved.

Governments mull greater geo gTLD powers

Governments are toying with the idea of asking ICANN for greater powers over gTLDs that match their geographic features.
The names of rivers, mountains, forests and towns could be protected under ideas bandied around at the ICANN 57 meeting in India today.
The Governmental Advisory Committee held a session this morning to discuss expanding the list of strings that already enjoy extra ICANN protections on grounds of geography.
In the 2012 application round, gTLDs matching the names or ISO acronyms of countries were banned outright.
For capital city names and non-capital names where the gTLD was meant to represent the city in question, government approval was required.
For regions on the ISO 3166 list, formal government non-objection was required whether or not the gTLD was intended to represent the region.
That led to gTLDs such as .tata, a dot-brand for Tata Group, being held up indefinitely because it matches the name of a small region of Morocco.
One applicant wound up agreeing to fund a school to the tune of $100,000 in order to get Montenegro’s support for .bar.
But other names were not protected.
Notably, the string “Amazon” was not on any of the protected lists, largely because while it’s a river and a forest it doesn’t match the name of a formal administrative region of any country.
While GAC objections ultimately killed off Amazon’s bid for .amazon (at least for now), the GAC wants to close the Amazon loophole in time for the next new gTLD application round.
The GAC basically is thinking about the power to write its own list of protected terms. It would build on the existing list to also encompass names of “geographic significance”.
GAC members would be able to submit names to the list; applicants for those names would then require non-objection letters from the relevant government(s).
Some governments, including the UK and Peru, expressed concern that “geographic significance” is a little vague.
Truly, without a narrow definition of “significance” it could turn out to be a bloody big list. The UK alone has over 48,000 towns, not to mention all the named forests, rivers and such.
Peru, one of the nations that had beef with Amazon, said it intended to send ICANN a list of all the geographic names it wants protecting, regardless of whether the GAC decides to create a new list.
Other GAC members, including Iran and Denmark, pressed how important it was for the GAC to coordinate with other parts of the ICANN community, mainly the GNSO, on geo names, to avoid overlap and conflict further down the line.
The GAC has a working group looking at the issue. It hopes to have something to recommend to the ICANN board by the Copenhagen meeting next March.