ICANN drops .jobs shut-down threat

ICANN has withdrawn its breach notice against .jobs registry Employ Media, opening the floodgates for third-party job listings services in the gTLD.
In a letter sent to the company earlier this week, ICANN seems to imply that it was wrong when it threatened in February 2011 to shut down .jobs for breaking the terms of its registry agreement:

ICANN has concluded that Employ Media is not currently in breach, but is instead in good standing under the Registry Agreement, with respect to the issues raised in the 27 February 2011 Notice of Breach letter.
…
ICANN will not seek to impose restrictions on new or existing policy initiatives within .JOBS as long as such conduct is consistent with the .JOBS Charter and the terms of the Registry Agreement.

The surprising move presumably means that Employ Media will be dropping its Independent Review Panel proceeding against ICANN, which was due to start in-person hearings next month.
The original breach notice alleged that the registry had gone too far when it sold thousands of generic domain names to the DirectEmployers Association to use for jobs listings sites.
This .Jobs Universe project saw DirectEmployers launch sites such as newyork.jobs and nursing.jobs.
The project was criticized harshly by the .JOBS Charter Compliance Coalition, an ad hoc group of jobs sites including Monster.com, which lobbied ICANN to enforce the .jobs contract.
The .jobs gTLD was originally supposed to be for companies to advertise only their own job openings.
The reasoning behind ICANN’s change of heart now is a little fuzzy.
Ostensibly, it’s because it received a letter December 3 from the Society for Human Resources Management, Employ Media’s policy-setting “sponsoring organization”.
The letter states that all of DirectEmployers’ domain names are perfectly okay registrations — “being used consistently with the terms of the .JOBS Charter” — and have been since the .Jobs Universe project started.
The domain names were all registered by DirectEmployers executive William Warren, who is a SHRM member as required by .jobs policy, the letter states.
Nothing seems to have changed here — it’s been Employ Media and SHRM’s position all along that the registrations were legit.
So did ICANN merely sense defeat in the IRP case and get cold feet?
Read the letters here.

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.

.jobs takes ICANN to arbitration

Employ Media, manager of the .jobs top-level domain, has become the first registry operator to take ICANN to arbitration to fight off a shut-down threat.
The company in the last hour said it has filed a Request for Arbitration with the International Chamber of Commerce in Paris, after informal efforts to reach agreement with ICANN broke down.
Employ Media CEO Tom Embrescia said in a statement:

This filing was necessary to ward off ICANN’s unwarranted and unprecedented threat of contract termination. That action created immediate uncertainty about the .JOBS TLD on the Internet and caused significant duress on our business.

ICANN had threatened to terminate the .jobs registry agreement – which I believe is pretty much the only option available to it in the case of a perceived breach – in February.
The filing means .jobs can operate as normal until the situation is resolved.
The dispute is essentially about Universe.jobs, a jobs listing service operated by the DirectEmployers Association using tens of thousands of generic .jobs domain names granted to it by Employ Media.
The .JOBS Charter Compliance Coalition, made up of independent jobs boards, complained to ICANN that Universe.jobs went against the spirit and letter of the original .jobs Charter.
Employ Media says that Universe.jobs was essentially authorized when ICANN approved its Phase Allocation process for handing out generic domains last year.
Employ Media is represented by lawyers from Crowell & Moring, some of the same individuals responsible for ICM Registry’s defeat of ICANN at its Independent Review Panel last year.
The request for arbitration can be read here in PDF format.

War of words over .jobs “breach” claims

Employ Media and ICANN have come to blows again over ICANN’s threat to shut down the .jobs registry for allegedly selling domain names in breach of its Charter.
Both parties are currently talking through their outside counsel, and the possibility of litigation has raised its head in public for the first time.
In the latest set of correspondence published by ICANN, Employ Media sharply (and ironically) criticized ICANN’s decision to publish an earlier set of correspondence on its web site.
The earlier email exchange, which I blogged about here, revealed that ICANN had asked the company to amend its Charter.
Two days later, Employ Media’s lawyers wrote to ICANN’s lawyers to express disappointment with the decision to post these emails, questioning ICANN’s commitment to good faith negotiations.

In light of this apparent bad faith action on ICANN’s part, Employ Media is questioning whether any hope remains for a full and fair exchange of ideas regarding a resolution of its dispute with ICANN.
…
[ICANN has] substantially hindered Employ Media’s ability to engage in productive and honest negotiations: all future communications will necessarily be more guarded and less open, given the expectation that they will be published to a larger audience

ICANN and Employ Media are currently in a “cooperative engagement” process – a less formal way to resolve their dispute than heading to an arbitration forum or court.
ICANN claims the registry is breaking its Charter commitments to the human resources industry by allocating tens of thousands of .jobs domain names to the Universe.jobs project, which is run by a partner, the DirectEmployers Association.
Independent jobs boards, represented by the the .JOBS Charter Compliance Coalition, believe that Universe.jobs is unfair and not compliant with Employ Media’s own policies.
Employ Media’s latest letter (pdf), which it demanded ICANN publish, drops hints about some of the behind-the-scenes talks (with my emphasis):

Had we known that any part of our communication was to be published, we would have certainly memorialized, in writing, your statements to us that ICANN very much wants to avoid an arbitration over this dispute, and that ICANN was therefore willing to agree to a process for approving a Charter amendment in order to do so. We would also have memorialized our positions, including our position that a Charter amendment is neither necessary nor desirable, but that we were considering acceding to ICANN’s request solely in the hopes of avoiding arbitration

ICANN’s lawyers’ response (pdf), sent April 26, says ICANN was merely fulfilling its transparency obligations by informing the community about the extension of the talks deadline.
They also said that the Employ Media should stop pretending to be surprised that ICANN issued the breach notice and is now asking for a Charter amendment.
ICANN further accused the registry’s lawyers of legal “posturing” which was “seemingly geared solely towards use in future litigation”.
Employ Media was due to deliver a proposed amendment to its Charter by yesterday. ICANN has said it will not take any further actions based on its breach notice until May 6.

Registry avoids .jobs shut-down

Employ Media has come to a deal with ICANN to avoid having its .jobs registry contract revoked, at least for the next few weeks.
Following discussions with ICANN’s lawyers, the company plans to amend its Charter, and has agreed to stop allocating non-company-name .jobs domain names until May 6.
ICANN threatened to terminate the .jobs registry deal in February, after Employ Media started allocating thousands of premium vocational and geographic domains to a partner, the DirectEmployers Association, to act as entry points for Universe.jobs.
In a breach notice (pdf), ICANN said that this use of .jobs domains “is inconsistent with the purpose stated in the .JOBS Charter and represented to the ICANN community”.
The .JOBS Charter ostensibly restricts registrations to human resources professionals, but in practice there’s a great big loophole that allows anybody to cheaply qualify for a domain.
In February, ICANN general counsel John Jeffrey told Employ Media:

By not establishing any meaningful restrictions on who may register second level registrations in the .JOBS TLD, Employ Media put in operation a TLD where anyone can register names, thus defeating the purpose for which the sponsored TLD came into existence.

In its response, the registry noted that it had followed ICANN’s proper procedures for introducing new “registry services”, such as the Phase Allocation Plan that allowed it to seed Universe.jobs.
It accused ICANN of bending to the wishes of the .JOBS Charter Compliance Coalition, a group of independent jobs sites operators that had objected to Universe.jobs.
Employ Media’s chief executive Brian Johnson wrote:

This is a sad day for both the Internet community and the international human resource management community. ICANN should be promoting competition and working cooperatively with its contractual parties, but instead is choosing to ignore the plain meaning of its contract with Employ Media in order to appease some apparently well‐financed and well‐connected provocateurs.

Since that letter (pdf) was sent, ICANN and the registry have been engaged in private discussions aimed at resolving the conflict, as allowed by the registry agreement.
In the latest set of correspondence, exchanged over the last week, it has emerged that ICANN has agreed to give Employ Media time to remedy the situation by amending its Charter.
The letters do not reveal whether the amendments will allow Employ Media to continue to offer Universe.jobs or not. I suspect they will.
The amendments may require the company to consult with its nominal sponsor, the Society for Human Resource Management.
ICANN wants a proposed Charter amendment on its desk by May 2. It has agreed to take no further action related to the breach of contract allegations until May 6.

Registry objects to .jobs shutdown threat

Employ Media will appeal ICANN’s threatened termination of its .jobs registry contract.
The company released a statement (pdf) late yesterday, following ICANN’s unprecedented threat, in which it said ICANN’s claims are “utterly without merit”.
“We view the substance of this notice to be a surprising reversal of position and contradictory to prior decisions issued by its Board of Directors,” the company said.
ICANN yesterday gave Employ Media until the end of the month to cancel its agreement to provide 40,000 .jobs domains to the DirectEmployers Association for its Universe.jobs employment board.
The organization said the allocation of the domains for non-human-resources purposes went against the letter, spirit and intent of the registry’s contract and Charter.
It essentially boils down to a claim that Employ Media hacked its contract to allow it to start making money on names beyond the limited scope of its original “sponsored” community TLD.
The .jobs TLD was originally pitched as a space for corporate HR pages, not independent jobs sites. With Universe.jobs, half of the namespace is an independent jobs site. Employ Media is believed to have a revenue-sharing arrangement with DirectEmployers.
The ICANN breach notice was welcomed by the .JOBS Charter Compliance Coalition, the ad hoc trade group formed by major commercial jobs sites to fight Universe.jobs.
Peter Weddle, executive director of the International Association of Employment Web Sites, said in a press release:

the Dot Jobs Universe was not an innovation but rather an unprecedented attempt by a registry operator to misappropriate an entire TLD for itself and its alliance partner in blatant disregard of ICANN’s rules.

Employ Media disagrees, of course, saying that Universe.jobs came about as a result of its “Phased Allocation” liberalization plan, which was approved by ICANN’s Registry Services Evaluation Process and then survived a Reconsideration Request filed by the Coalition.
The company said: “it is imperative for registry operators to have predictability in the performance of duties and that ICANN has a responsibility to honor its commitments with contracted parties.”
Its registry contract contains a dispute resolution procedure that first calls for bilateral talks and, failing agreement, arbitration via the International Chamber of Commerce.

ICANN threatens to shut down .jobs

In an unprecedented move, ICANN has threatened to cancel a top-level domain registry operator’s contract.
Employ Media, the .jobs registry, faces losing its TLD if it does not shut down Universe.jobs, the controversial jobs board operated by its partner, the DirectEmployers Association.
In a letter to the company (pdf), ICANN general counsel John Jeffrey wrote:

By not establishing any meaningful restrictions on who may register second level registrations in the .JOBS TLD, Employ Media put in operation a TLD where anyone can register names, thus defeating the purpose for which the sponsored TLD came into existence.
…
We are calling on Employ Media to take immediate actions to implement restricted registration policies that support the purpose for which the .JOBS top-level domain was established, and to cancel registrations and/or disavow themselves of the benefits of any registrations that are owned by related parties, if any.

The move comes following a complaint filed by the so-called .JOBS Charter Compliance Coalition, made up of jobs board such as Monster.com and CollegeRecruiter.com.
They’re annoyed that the registry licensed 40,000 premium geographic and vocational .jobs domains to DirectEmployers for Universe.jobs, which has started to compete with them.
Jeffrey wrote:

It appears that Employ Media and SHRM, through the Direct Employers Association, intend to use the .JOBS TLD primarily to compete with other internet job boards. Such use is inconsistent with the purpose stated in the .JOBS Charter and represented to the ICANN community.

The deal came as a result of a change to the .jobs registry contract, made through ICANN’s Registry Services Evaluation Process, that allowed Employ Media to lift a rule that restricted registered domain names only to the names of companies.
What the RSEP didn’t do was change the .jobs Charter, which restricts “who” may register .jobs domains. Yet, weirdly, the Charter is partly the basis for ICANN’s threat.
Jeffrey refers to the Charter restrictions, which are easily circumvented, as “specious” and “do not serve the international human resource management community”.
This is the Charter that ICANN approved back in 2005, and which hasn’t changed since, remember.
To come back into compliance, ICANN wants Employ Media to shut down Universe.jobs and get back to selling company-name registrations.
I think it’s likely Employ Media will appeal, possibly by taking the case to arbitration, as its contract allows.

Universe.jobs launches with hundreds of premium domains

The controversial Universe.jobs project has soft-launched, offering jobs listings at hundreds of premium geographic and vocational .jobs domains.
Country and state domains such as usa.jobs, gbr.jobs and texas.jobs, as well as industry domains such as firefighter.jobs and journalist.jobs are live and resolving.
If you visit, say, usa.jobs or rus.jobs, you’ll be presented with a bunch of job listings from the USA or Russia. If you visit retail.jobs, you’ll be bounced to usa.jobs/retail (at least, I was).
Even combinations, such as texas.nursing.jobs, seem to work.
I’ve no idea how many domains have been activated this way, but since all the geographics seem to be active I’m guessing it’s at least several hundred at the second-level.
The site, which is presented as a service of the DirectEmployers Association’s National Labor Exchange, currently says it’s in beta.
But the big questions now are: is this legit, and who owns the domains?
Employ Media, the .jobs registry, had to fight ICANN and mainstream commercial jobs boards in order to drop the contractual restrictions that previously limited .jobs to company names.
But some argued that, despite the relaxation of the string restrictions, employer-independent jobs sites such as Universe.jobs would still be verboten under Employ Media’s charter.
The .JOBS Charter Compliance Coalition, made up of newspaper associations and boards such as Monster.com, tried to get ICANN to reconsider its decision, but failed (kinda).
While the Coalition’s Reconsideration Request was unsuccessful, ICANN did say it will start to monitor Employ Media for compliance with its charter more closely.
More interestingly, perhaps, during the ICANN investigation Employ Media abruptly dropped plans to create a “self-managed” class of domains – names registered to itself, but “used” by third parties such as DirectEmployers.
Did it make good on its promise? It’s difficult to be certain, because the Whois for the many of the domains in question seems to be broken.
I’ve been able to establish that some older domains, such as usa.jobs and nursing.jobs, currently belong to DirectEmployers, but trying to figure out who owns some of the more recently registered geographical .jobs names is an excruciating process.
The Whois link buried at the bottom of the official Employ Media web site directs you to the Whois service provided by VeriSign (which runs the back-end registry infrastructure for .jobs).
VeriSign’s tool does not return the name of the registrant, only details such as the registration date, associated name servers, and the URL of the appropriate registrar’s Whois server.
In the case of all these geo domains, the registrar appears to be NameShare. The Whois server URL given by VeriSign points to a second tool, at whois.nameshare.com, that doesn’t work.
If you try to query, for example, usa.jobs (after filling out the Captcha) you get this message:

[r3] Error Message: Unsupported TLD .jobs

If you visit the NameShare homepage, you will be able to find a third .jobs Whois tool, at whois-jobs.nameshare.com/whois/. This doesn’t seem to work properly either.
This tool will tell you that the domain usa.jobs belongs to DirectEmployers.
However, almost every other Universe.jobs-related domain that I queried returned a “not found” message, even when the domain resolves and the VeriSign tools says it’s been registered for over a month.
I’m not sure what’s going on. Some kind of technical problem, no doubt.

ICANN asks .jobs registry to explain itself

ICANN has asked .jobs registry manager Employ Media to clarify its plan to lift restrictions on who can register names in its top-level domain.
The ICANN board committee which handles Reconsideration Requests – essentially ICANN’s first-stop appeals court – has sent the registry a list of 13 questions (pdf), apparently distilled from a much longer list (pdf) supplied by the .JOBS Charter Compliance Coalition.
Employ Media wants to be able to start allocating premium generic .jobs domain names to companies via an RFP process and possibly auctions, dropping the rule which states that only companyname.jobs domains are permitted in the TLD.
ICANN’s board of directors approved the company’s plan in August, and Employ Media opened its RFP process shortly thereafter. Then the Compliance Coalition filed its Reconsideration Request.
This ad-hoc coalition comprises a number of employment web sites, such as Monster.com, and the Newspapers Association of America, which believe Employ Media’s plans fall outside its remit and could pose a competitive threat.
It’s common knowledge that the registry was planning to allocate a big chunk of premium real estate to the DirectEmployers Association, which wants to run a massive jobs board called universe.jobs, fed traffic by thousands of generic industry or geographic .jobs names.
Essentially, the Coalition’s questions, echoed by the Board Governance Committee, seem to be a roundabout way of asking whether this violates the .JOBS Charter, which limits the registrant base to corporate human resources departments.
Notably, the BGC wants to know when a universe.jobs promotional white paper (pdf) was produced, how much input Employ Media had in it, and whether the ICANN board got to see it before making its decision.
(A bit of a ludicrous question really, given that the BGC is comprised of four ICANN directors)
It also wants to know which purported “independent job site operators” have welcomed the Employ Media plan (a situation reminiscent of the recent unsuccessful calls for ICM Registry to disclose its .xxx supporters.)
The BGC’s Question 9 also strikes me as interesting, given that it does not appear to be inspired directly by the Coalition’s list of questions:

Please state whether Employ Media took any steps to prevent or interfere with any entity or person’s ability to state its position, or provide information, to the Board regarding amendment of the .JOBS Registry Agreement before or during the 5 August 2010 Board meeting.

I’m now beginning to wonder whether we may see a rare reversal of an ICANN board decision based on a Reconsideration Request.

Want thousands of free .jobs domains? Now’s your chance

Employ Media wants to hear from companies interested in registering .jobs domain names in bulk, at the start of its recently approved landrush process.
The company has set up a web site to handle expressions of interest of “high level business concepts on how these domain names could be developed either individually or in bulk”.
Before now, .jobs domains have been limited to the name of the company registering them. IBM, for example, uses ibm.jobs to bounce to its HR pages.
Employ Media applied to ICANN to liberalize the namespace, allowing the registration of the names of professions and places, and was successful over the objections of many existing jobs boards.
From the press release:

“We believe accepting EOI’s will facilitate dialog with potential RFP applicants. We’re particularly interested in hearing ideas comprising a bulk number of domains,” states Tom Embrescia, Chairman of Employ Media. “Up to now, we’ve only allowed company names such as www.Applebees.jobs and www.UnionPacific.jobs. Now we are looking for ideas for how companies can easily and uniformly distribute their jobs and related information to user-intuitive sites such as www.Chicago.jobs, www.sales.jobs, and www.restaurant.jobs.”

Right now, the company is only looking for 150-word outlines of business ideas. The RFP period will begin shortly after the EOI period closes on August 24 (less than two weeks from now).
Employ Media already has plans in place with the DirectEmployers Association to launch universe.jobs, a free jobs portal using thousands of premium .jobs domains as entry points.
It remains to be seen how concrete these plans are, although the two outfits have already run a “beta test” of the scheme, so I’m guessing they’re quite firm.
If you fancy your chances, the RFP site is RFP.jobs.
There are at least two filthy domain hacks I intend to apply for. All I need to do is think of a way I can pretend they benefit the global HR community, which is an unfortunate prerequisite.