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This is a copy of my comments, submitted to Miriam
Sapiro and Sebastien Bachollet:
gTLD
Evaluation Interview
with Mr. Richard Henderson: Policy and Legal
Issues In response to the questions
at the foot of this Interview, I am submitting the following remarks in an
effort to represent the perspective of the ordinary internet user with regard to
the launch of the previous round of New gTLDs and lessons to be learned for the
future. Introduction:
My name
is Richard Henderson of Berkhamsted in the United Kingdom. I am a 50-year-old
teacher, with experience both as a Headmaster and as a Prison Governor. I am
married with three children and I became aware of the New gTLDs when I decided
to try to acquire some of the new domains for personal interest websites, on a
non-commercial basis. I would categorise myself therefore as an ordinary
internet user and consumer with no “inside” involvement in the domain
distribution industry and no preconceived views about ICANN or any of the
Registries or Registrars : quite simply, I did not even know about ICANN in
1999, and was unaware of the distinction between Registry and
Registrar. Background:
When the
new domains in .info and .biz were announced, many consumers like myself saw the
chance to acquire a favoured name which had already been taken in .com and .net.
ICANN made it clear that charged pre-registrations to ‘book up’ a registrar to
try to acquire a name in the Landrush were inappropriate, but almost all
registrars ignored this advice, recognizing the opportunity to make a profit
from a product (an application for a name) which offered no guarantee that the
name would actually be acquired. In most cases, statistically, these sold
pre-registrations were “money for nothing” as far as registrars were concerned.
A few registrars later re-imbursed certain categories of customers for
unsuccessful applications, but the majority did not. Like many other consumers,
I chose to buy some pre-registrations with the clear understanding that,
although there was no guarantee of getting a chosen name, there would at least
be a chance. That ‘chance’ was what the pre-registrants (later nicknamed
‘Landrushers’) were paying for. ICANN –
Registry Agreements :
The
launch of the New gTLDs included a number of phases : the Sunrise Period to
placate the IP constituency; the Landrush Period for the opening public
applicants; and the Real-Time phase which continued after the launch. What
became clear from the .info launch was that the ICANN Agreement with Afilias had
been so loosely written, that – unless the Registry applied its own pre-emptive
screening process, the Sunrise provisions effectively allowed anyone in the
world to apply for any or all good names, without checks to see if those
Trademark claims were fraudulent. There had been an expectation of at least one
Afilias Director that the Registry would set in place the checks necessary to
weed out the obviously fraudulent applications, but no such protocol
materialized – so the Sunrise phase was an open invitation to anyone who wanted
to, to abuse the process, and wreck the Landrush phase which was to follow it
(because by reserving the name in the Sunrise, the name was then no longer
available in the Landrush). The ICANN Agreement with the Registries did have one
safeguard – it stipulated that Trademark applications HAD to provide credible
data in to meet the criteria of 4 specific datafields : Trademark name,
Trademark number, Trademark date, Trademark Country. However, in the event,
Afilias failed to implement this rule in the Agreement, and allowed Trademarked
names to be registered, even if the data fields had “NONE” inserted, or
ridiculous dates like 2040, or Trademark Numbers like 12345678 or 00000000. To
this extent, Afilias failed to fulfil the obligations of their Agreement with
ICANN, to the clear detriment of thousands of consumers who as a result lost
their paid ‘chance’ to acquire the names in the Landrush phase. This failing on
the part of Afilias was compounded by the fact that Afilias was a cartel of
registrars, whose companies were also taking money for pre-registrations, as
well as submitting ineligible names in Sunrise which negated the prospects of
their own pre-registrants. The
.info Sunrise :
During
the .info Sunrise it soon (within a week) became clear to ICANN, to Afilias, and
to consumers, that the Sunrise phase was like a jeweler who had gone home for
the weekend and left the front door open in trust. In total, some 12000 domain
names were fraudulently reserved (and duly registered by Afilias!) and this was
not the whole total – as well as the obvious examples listed above which Ram
Mohan and his team later addressed, there were undoubtedly many more which were
more subtly masked to evade detection. The whole principle of the Sunrise
technique has been challenged on two grounds: (a) philosophically – because it
appears to give one group of people the means to ‘reserve’ and close off a large
proportion of the generic words of everybody else’s language; (b) practically –
because it seems impractical to check on the validity of claimed trademarks in
150 countries, unless time is allowed in the process to send actual certificates
and documentation in advance; and even then, when a given word might be a
trademark for 50 or 100 companies around the world, why does just ONE company
end up reserving the rights that are equally due to all the others? For this
reason (and in the likely emergence of many more gTLDs in the medium-future)
some people have suggested that there should simply be one designated TLD (.reg
for example) for the formal identification of IP identity, and that in all the
remaining TLDs that emerge, the Sunrise phase should be removed, and the grounds
for a company challenge should be based on clear evidence, demonstrable in
court, that there is an intent to use a given name in bad faith. Apart from
anything else, when there are eventually 100 TLDs, will companies want to expend
fruitless money reserving their name in all the different extensions? Some may,
but many will not. A single designated TLD to identify checked and validated
IP-holders would be a far better guarantee to the public that a website is who
and what it purports to be. Where I
got involved :
As an
ordinary member of the public, I had spent several hundreds of pounds/dollars
pre-registering a small number of names, on the basis that I would spend my
family’s hard-earned cash on a small chance (but a realistic chance) of
procuring a domain name I wanted in the Landrush. Soon after the Sunrise phase
started to disintegrate, I realized that the process was being undermined. Some
registrars were even *telling* their customers to apply in Sunrise without a
Trademark and – having not read the ICANN Agreement at this stage, I even
followed my registrar’s specific advice and applied for one name on that basis.
Almost immediately (having secured the name so easily to my astonishment) I
realized this could not be right, and contacted Afilias within 48 hours to
request my registration be reversed, but they refused “because it would harm the
Proof of Concept”. I then repeated my request, and copied it to about 20 media
sources. I was deeply troubled that the process seemed out of control and no-one
at Afilias seemed to be doing anything about it. My logical mind told me that
the all the most popular names – the very names people would have pre-registered
for the Landrush – were being snapped up in advance by people who seemed to have
no eligibility. This would result in a loss amounting to probably millions of
dollars to legitimate customers in the .info Landrush (and so, I reasoned,
*surely* Afilias and ICANN would have to intervene). I therefore started
monitoring the apparently fake Sunrise registrations and set up a website
listing them called TheInternetChallenge. Within days I started receiving
e-mails from all over the world from Landrush customers who had identified names
that were visibly ineligible (lacking the data in the mandatory 4 data fields).
By the end of the Sunrise phase, with the help of a script, I had obtained the
data of every single .info domain registered in the Sunrise phase. I published
over 10,000 names which I felt ‘should be looked at’ and others came on board to
try to demand action from ICANN and Afilias. Failure
of Process and Disillusionment with ICANN
: The
Afilias team through this phase tried to marginalize the scale of the problem
(because it was very bad PR at the start of its launch) and ICANN – although
warned from almost the outset of Sunrise – refused to intervene to protect the
legitimacy of the Landrush process and the thousands of consumers who were part
of that process. There was widespread complaint, but three instances are worth
noting: (a) One of the Afilias Directors, Robert Connolly, complained
vociferously about the unfair treatment of the Landrush customers, and resigned
from the Board over what he called the “abomination” of the Sunrise fiasco; (b)
Professor Robert Connor of Minnesota University and I both came up independently
with what was clearly a workable solution to safeguard the interests of the
Trademark holders and also the Landrush customers – it came to be known as ‘The
Domebase Solution’ and involved allowing all the reserved names to be offered
“provisionally” at Landrush, on the basis that this ‘provisional’ allocation
would only be finalized after each Sunrise claim had been thoroughly checked and
proved. This would have had the effect of safeguarding genuine Trademark rights,
but also ensuring that the thousands of consumers who had committed to the
Landrush process (at the instigation of registrars and specifically the
registrars who formed the Afilias cartel) would still have the chance they’d
paid for to acquire a name if it was not reserved for Sunrise. This solution was
widely supported, but Afilias refused to adopt it. It is also worth pointing out
(regrettably) that a number of Afilias cartel members on their Board were caught
out applying in their own individual names for Sunrise domains, using fraudulent
Trademark data; and that one of Afilias cartel registrar had charged over
$500,000 to one single applicant to apply for 4981 fake Trademark registrations,
which the cartel then duly registered. This highlights the seeming ‘conflict of
interest’ that can arise when Registry and Registrars share a single point of
distribution : how to guarantee the integrity of process and safeguard the
consumer? (c) The .info fiasco started as a fairly obscure event – and I suspect
that the obscure and frankly opaque workings at ICANN created a climate where
people felt the rules could be applied somewhat informally, without much fear of
detection or redress. However, the media picked up the story and – to site just
one example – the BBC News in UK ran the story and referred to my own website
and Professor Connor’s solution. This added to a climate of mistrust in ICANN
and ICANN’s processes, which also reflected badly on ICANN’s sponsors at DoC.
Afilias had failed to uphold the rules of ICANN’s agreement (indeed some
Directors were closely connected with specific abuse of the rules). ICANN had
failed to enforce or uphold the rules of its own agreement (even though it was
perfectly clear about what was going on). And this was happening at a time in
ICANN’s history when it was setting out to EXPEL the elected representatives of
ordinary users (the At Large) from its Board (because their independent and
critical positions were inconvenient to the Board) – in this way ICANN failed
ordinary consumers both in terms of representation and also in terms of those
Agreements which were supposed to underpin honest financial transactions carried
out by the public in trust on the basis of ICANN’s processes and agreements.
ICANN most seriously betrayed these consumers and failed to ensure what their
MoU with USG required of them “the fair distribution of the
DNS”. Meanwhile
at Neulevel… :
During the same period, Neulevel faced a serious legal challenge which
resulted in them aborting the launch of their .biz gTLD. In being found liable
of planning an ‘illegal lottery’ their roll-out was thrown into disarray. Once
again, there seems to have been a failure on the part of ICANN (in liaison with
the registry) to apply sufficient rigour to the formulation and drafting of
policy, so as to pre-empt the failure of process (which public confusion or
disadvantage as a result). In analyzing both the .info and the .biz problems, I
am driven to the conclusion that ICANN has suffered from underfunding and
understaffing, and I question whether a world resource on the scale of the
Internet and all its DNS-related resources should really be run by a small local
quango out of a few offices in California. Those who argue for the UN or ITU or
other international agency to take over from ICANN can, I believe, point to some
of these chaotic launches as evidence of incompetence and also draw the
conclusion that the handful of staff and insiders have been incapable of
administering the DNS, meeting deadlines (take this very Evaluation for
example), or responding to concerns from the public. This issue of
responsiveness (or rather, lack of it) became apparent to me when the bulk of
prime .biz names were finally released in what was called the .biz
2B. Abuse of
Registrar Application Lists in .biz 2B and .info Landrush
2 :
By April
2002, I thought that my research days were over and I could safely get back to
teaching, clear weekends and evenings with my family, and the private
development of a few websites (such as www.berkhamsted.info which I have
developed as a local community resource, and which demonstrates the interest
ordinary people have in the good governance of the DNS). However, Registrars
were about to get the chance to play the pre-registration game all over again in
the “Round Robin” process which Neulevel set up for its own Landrush. What
became clear was that some registrars were open to the public and might take
applications for, say 1000 or 10000 domain names; whereas, more determined
registrars closed off their lists to the public, and restricted applications to,
say 20 or 30 domain names (but the very best domain names which might have a
higher market value for re-sale).
Once again, by running a script to obtain the data of all the .biz 2B
registrations, it was possible to analyse in detail the size of list that each
registrar submitted, and the number of customers who had benefited from a
specific registrar. What was alarming was that it was apparent that a “fair
distribution of the DNS” to the public (as ICANN was bound to oversee) had not
been possible, because the distributors had been able to distribute some of the
best domain names to themselves. This was possible because, in the Round Robin,
if you only submitted 12 names, then you were guaranteed that your chosen names
would come up in the first 12 rounds, and some straightaway in the first rounds
of all; whereas registrars who had actually been wholly open and accessible to
the public might find the best names were submitted in round 879, round 934, and
round 2327… by which time, of course, those good names had long since gone to
the registrar with a short, closed list. This is demonstrably what happened in
the .biz 2B. For example, Signature Domains only applied for one individual –
but that individual was one of their own Partners, Joshua Blacker – who, when
challenged, conceded what had happened. He only got 10 domains, but they were
some of the best domains available, capable of development into lucrative
websites. The Lubsen family also submitted a short list with their company
DomainPro, while DomainBank, working out of the same offices, submitted a much
longer list used by most customers. Another Registrar appeared to run no website
during the period but made applications only for 2 favoured customers. The
Round-Robin process therefore appears to be vulnerable to abuse by registrars,
some of whom may choose to ‘play the system’, not for the benefit of the public.
The process, and its oversight, allowed for distribution to be distorted and
impeded by the distributors. It was clear in April 2002, that exactly the same
problem would recur when Afilias launched its Landrush 2 two months
later. |