May 2009 Archives

Remember the draft IRT report? Well they've published the final version after supposedly taking into consideration comments and feedback.
However you'd be forgiven for thinking that their view on the feedback process was ever so slightly biased.
Basically they seem to have taken on board any comments and feedback that supported their views and either ignored or dismissed any that didn't.

To view all the comments that were left you can go here (they seem to have moved the pages around, so the other links I had to the comments are no longer working)

The comments that were submitted came from a wide variety of sources, but included end users, end user groups, registrars, lawyers and companies interested in launching new gTLDs.

So what is in the final report that is so abhorrent?

Take the issue of whois and privacy, which I mentioned during the comment period:

After carefully consideration, the IRT believes that the provision of WHOIS information at the registry level under the Thick WHOIS model is essential to the cost-effective protection of consumers and intellectual property owners. For this reason, the IRT recommends that ICANN amend the proposed Registry Agreement to include an obligation that all registry operators for new gTLDs must provide registry-level WHOIS under the Thick WHOIS model currently in place in the .info and .biz registries

I love the way they lump "consumers" in with "intellectual property owners", but I digress. There is a footnote that basically brushes off concerns about privacy:

The IRT acknowledges that some comments raised privacy concerns about this recommendation. However, it notes that the thick registry Whois model has been employed in many new gTLDs for many years without any evidence of legal problems, and also that ICANN, on the unanimous recommendation of the GNSO Council, has established a procedure that can be invoked by any registry that believes it faces a conflict between its contractual Whois obligations and requirements of national privacy laws. See http://www.icann.org/en/announcements/announcement-18dec07.htm. To date, this procedure has never been invoked.

They have completely ignored or are ignorant of the very important difference between data collection and display. As I mentioned in my comments on this particular subject:

The IRT recommendation for Thick WHOIS as implemented by the .BIZ and .INFO registries could be put forward for incorporation into the next version of the Guidebook, but the IRT should also recognize that variations may occur depending on local law (Telnic is one example). In other words, the data that is displayed to the public vs. the data that is actually captured is something that needs to be clarified.
As I already stated, I would have huge issues with the display of personally identifiable data without there being safeguards in place. The .tel implementation is very sane and balances individual's rights to privacy with law enforcements requirements

In essence if the IRT has their way private individuals will be left with three options:

1. Not register domains if they value their privacy
2. Provide bogus contact information, while this may breach registry rules it's quite easy to provide plausible information that is not correct
3. Use a proxy service, which would again lead to issues of display (self defeating?)

The IRT's take on WHOIS is incredibly shortsighted and contradictory.

From their report (my emphasis added):

In order to test the efficacy of each proposal and the solution to be developed by the IRT Sub-Groups based upon the proposals prioritized, the IRT also developed the following list of questions to be asked as a benchmarking checklist against which to measure all proposals:
what are the harms that are being addressed by the solution;
will it scale;
does it accommodate territorial variations in trademark rights;
does it conform to extent of actual legal rights;
does it work in light of IDNs;
can it be gamed and abused;
is it the least-burdensome solution;
is it technologically feasible;
how will it affect consumers and competition; and
what are the costs and who pays them.

There is no clear distinction to my knowledge between a "user" and a "consumer", as a "consumer" can also encompass registrants, who, as private individuals have rights.
While a right to privacy may not be guaranteed under US law, it is definitely guaranteed under EU law, so how a namespace for global use, which may be legally constituted within the EU could be compatible with a "thick whois" display is beyond me.
And as I already mentioned, abuse of whois is child's play. So by ignoring registrants' rights to privacy they seem to be doing themselves no favours.

With regard to proxy registration services the IRT does consider them worthy of research, but doesn't actually make any firm statement on them:

However, the IRT did identify one proposal, in particular, that it believes should be further considered to determine whether it has any merit; namely the development of universal standards and practices for proxy domain name registration
services.
Many of those who filed comments to the DAG have asked that ICANN consider the issue of proxy domain name registrations with regard to new gTLDs. The IRT
recognizes that proxy domain name registration services raise complex concerns that require a great deal more analysis and consideration that were outside the limited time frame available. As a result, the IRT takes no position at this time on proxy domain name registrations. The IRT does recommend, however, that ICANN consider this issue and report to the community on whether it should or is able to make any recommendations with regard to the use, standards and practices of proxy registrations.
The timetable of such recommendations may be independent of the timetable for the introduction of new gTLDs, but the IRT strongly recommends that ICANN's consideration of this issue commence as soon as possible.

Considering how much of a policy "football" whois is in ICANN circles it is understandable that the IRT did not wish to get too deeply embroiled, but that they would also insist on their thick whois model is abhorrent.

Other areas that caused issues for people in the draft report have also been more or less ignored. While the original draft report spoke of a specific number of trademark registrations qualifying an IP holder to special protection, they have toned this down in the final document. Unfortunately they still haven't dropped the idea completely, so the "tiered" trademark holder concept is still alive and well in IRTville.

It is obvious to anyone reading this final report that the document was drafted from the perspective of intellectual property rights owners only, and even within that group only the "heavyweights" seem to really matter.

George Kirikos sums up some of the issues very nicely:

The URS in particular is an extremist view of trademark rights, tilted in favour of IP interests compared to the UDRP and beyond what is protected or
recognized by law and due process. It also obfuscates the dual requirement of BOTH bad faith use AND registration (there are lots of inconsistencies in the
language that seek to weaken the standard to make it "OR" instead of "AND").
The level of defaults will be even higher than the UDRP simply because good faith registrants never receive actual notice of complaints. Even faxes were
considered too expensive! A 1 page fax, using email-to-fax technology (so it can easily be automated by the URS provider) would cost less than $1 ANYWHERE
in the world! The IRT team should try sending registered letters in a statistically valid sample size and measure how long it takes them to be
delivered to different parts of the world -- it can be more than a week, even from the USA to Canada, let alone from Europe to Canada

As I mentioned previously, not all WIPO UDRP decisions go as smoothly for trademark holders as they would like. In many cases the trademark holders seem to work under the assumption that their trademark and IP gives them rights that negate those of 3rd parties.

Of course, in common with other ICANN documents, there is now a public comment period open for people to make their feelings heard. You don't need to be a registrar or anything special to make your voice heard.

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ICANN Sydney is only a couple of weeks away...

If you haven't organised flights, hotels and visas by now you'd want to get a move on!

So who is attending?

If anyone would like to meet up for a beer or coffee and a chat please let me know (either via the comments or email me directly. All my contact details are over here

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ICANN's 37th public meeting, which is to be held from March 7th to March 13th 2010, is to take place in Kenya.

Kenya had previously been slated to act as host for a meeting in 2008, but due to security concerns the slot was re-allocated.

Last night the Irish Internet Association celebrated its annual awards ceremony in Dublin - the Net Visionaries.

As I mentioned a few weeks ago, Trey Harvin, dotMobi CEO, was shortlisted for the Mobile Internet Innovation award.
I'm delighted to report that Trey went home last night with the award!

Congratulations to all the dotMobi team!

One of the WIPO decisions published today relates to gillette.ro.

The registrant (respondent) didn't make any submissions in their defence, so the decision could have been quite banal.

However some of the panelist's comments under the "Registered and Used in Bad Faith" section are quite interesting under:

The Panel disagrees with the Complainant's submission that the only conclusion that can be drawn from the registration of a domain name consisting of a well-known trade mark such as the Complainant's GILLETTE trade mark and the history of the Respondent's similar conduct in respect of other well-known trade marks is that the Respondent registered the Domain Name in the hope of obtaining financial compensation from the rightful trade mark owner.

It appears to the Panel that while this is definitely a possibility, such an intention cannot simply be assumed in the circumstances as the Complainant has not adduced any evidence as to the Respondent's offer for sale or other attempt at reaping financial benefits through registration of the Domain Name. The Panel notes that the Domain Name is not in use, and does not resolve to any page which would suggest that the Domain Name is for sale.

Put in simpler English. You can't just make assumptions. You need to provide evidence.

Ultimately the case was won by Gillette, but the "assumptions without evidence" are an interesting sidenote.

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One of the more recently reported WIPO UDRP cases that caught my attention was in relation to airfrance-suck.com

The decision, which went against the registrant, makes for some interesting reading.

The salient points being:

• The "suck" suffix can be a legitimate defence
• A lot of "suck" or "sucks" related WIPO cases end up being ruled in favour of the trademark holder
• If you're going to register a "brandnamesucks.com" type domain you need to actually use it

You can read the full decision on the WIPO site

I love the way some of the domainer events are using Facebook to keep people like me up to date!

In any case, the Domain Roundtable tickets go up in price after midnight tonight (not sure which timezone).

If you register before midnight you can avail of the $895 rate.

More details on their site

Tucows is taking over the 33 thousand odd domains that were under the accreditation of Parava.

The full announcement of the transfer on the ICANN site includes contact details and more. Unfortunately the deaccredited registrar did not transfer billing data, so registrants will need to contact Tucows (under their Hover.com brand) to renew their domains.

More information on the ICANN site

The IEDR, which is the current registry operator for dotIE (.ie), announced today that its quarter 1 registration figures were the highest to date.

Close to 10 thousand IE domains were registered in the period up to the end of March 2009, which is a 28% increase over Q4 2008. Though the press release doesn't mention that Q4 is shorter due to the Christmas break, which leads to registrations not being completed in one calendar year, but being carried across to the next one.

According to the release over 80% of the domains were registered to either sole traders or companies.

Nominet maybe attracting some undue attention due to behind the scenes squabbles, governance reviews and proposed policy changes, but the registry is also developing new features and services.

Today they announced a number of things that are worthy of attention.

The biggest one in many respects is the introduction of a new domain locking mechanism - "phishing lock".
This new mechanism allows registrars to effectively lockdown a domain or an entire account should they feel that the domain(s) are being used for phishing fraud or other types of abuse:

*  Remove the domain name from the zone file. This means that the domain name will not resolve to a web page and email directed to it will not be delivered.
* Lock all information relating to the domain name. This prevents registrant transfers, registrar changes, nameserver modifications and domain name cancellation.
* Set the domain name's status on the WHOIS to "suspended".
* If applied to an account, lock all domain names on the account. If applied to a single domain name only, that domain name will be locked. Other domain names in the same account will be unaffected.
* Not make any changes in respect of invoicing. If the domain name is not yet invoiced it will be invoiced as normal.

Nominet's information page on the new mechanism makes it clear that the lock's usage will be monitored and that registrars should not abuse it or use it for any purpose other than that for which it was intended:

*  The registrant has not paid monies owed to you
* The registrant is suspected or accused of civil wrongs, e.g. a breach of contract or IP infringement (although you may wish to take other action if you are hosting the relevant content)
* The registrant has been accused of criminal activity by one person who does not supply supporting information or evidence of the criminality
* The alleged criminal activity has nothing to do with the registrant's domain name

However it is unclear how they will act should a registrant contact them directly when their domain is locked.

Full details on their site

The other changes were not as "exciting" in some respects, but are still worth mentioning.

If you follow domain disputes or want to investigate them the new DRS (Nominet's dispute resolution service) search function is a welcome addition. You can now search past DRS decisions using a range of options including keywords, domain name, expert etc.,

The other big change today was the introduction of "standard EPP". EPP is a system used by many of the domain registries to handle registrations and modifications to domain names. Unfortunately many registrars were not overly impressed with Nominet's implementation of EPP, so this new "standard" version may prove to be more popular, as it uses data structures that are similar to those used elsewhere.

It will be interesting to see if the registrar community adopt the new EPP, though its impact on registrants in either case should be minimal.
 
 

If you want your comments to be considered in the final IRT report then you need to get them in today.

More details here and previously submitted comments here

The much vaunted launch of the new TLDs as announced at the ICANN Paris meeting last year is probably a bit of a damp squid in many respects.

Don't expect to see any actual progress there until next year at the earliest.

In the meantime you can read all about the plans people have for launching their "solutions".

The problem with some of the proposed "solutions" is simply that they rectify non-existent issues.

If politicians get their own TLD, then why not butchers? Or taxi drivers? Or fishermen?

The biggest issue with any of these TLDs is going to be reaching a mass that will allow them to survive. Some will probably be very successful on more than one level, but if people are going to propose TLDs they really need to think the entire process through.

Just because there is a perceived issue at present does not mean that creating a new TLD is going to do anything to solve it.

There are many cool ideas for new TLDs out there, don't get me wrong. But for every sane concept there are probably a few really badly thought out ones.

Unfortunately for the people pushing their new TLD projects it's not them who gets to decide which TLDs will be given a chance.

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As yesterday was a holiday in Ireland I didn't get a chance to mention this ...

Yesterday morning Viviane Reding, EU Commissioner for Information Society and Media, posted a video calling on ICANN to decouple itself from the US.

You can see the full video here or download the text of the message (PDF).

Further coverage on CircleID

Trawling through domain dispute data can be vaguely amusing, if you're a bit bored on a Saturday...

By TLD in no particular order:

• .ie - total of 25 cases, 4 so far this year of which 3 are ongoing (greenoffice.ie, todayfm.ie, monsterfinance.ie)
• .es - 145
• .fr 180
• 
  
• .tel - none to date

• .mobi - 189 to date

• .asia - 8 to date
• .pro - 8 to date
• .name - 38 so far
• .museum - none, but that's hardly surprising
• .cat - 4
• .info 825 so far
• .biz 725
• .net 2844
• .com 21552 cases (not surprising that it's so much higher, but the actual figure is higher than I was expecting
• .aero - only one case, which was denied (D2004-0669)
• .jobs - none
• .travel 12
• .coop - none

All the information is pulled from public sources...