This blog has often been silent for long periods while I’m working hard on something. This time I think it was worth it. With a few good friends, I’ve started Minds + Machines, and from now on most of my posting is happening on the Minds + Machines blog.

While I was searching for a registry provider for .NYC (see the Registry Speed-Dating series), I wasn’t happy with what I was seeing, so I decided to roll my own. Well, not quite, because I didn’t build registry software — but I did find an even better solution.

I’ve been a fan of CoCCA for years. The low price, the emphasis on serving the Internet community, the customer-first attitude, were all in marked contrast to other registry options. That’s why CoCCA has quickly become the most widely-deployed registry platform on the planet.

A light bulb went off. A dim bulb, perhaps, but sufficient. It came in the form of an equation, which is usually highly dangerous for me, but in this case was exactly correct. “Red Hat is to Linux as X is to CoCCA.” Solving that equation, X became Minds + Machines.

I went to Garth Miller of CoCCA and licensed the CoCCA platform for gTLDs, which we redubbed Espresso (CoCCA is for ccTLDs, Espresso is for gTLDs). With Jothan Frakes and Elaine Pruis I formed Minds + Machines in January 2009 and off we went with our hair on fire to get ready for the ICANN Mexico City meeting.

Result so far? Resounding success. Time will tell, but having former Vice President Al Gore partner up with our client .ECO is a great start.

Check out the new site, and join us at the Minds + Machines Facebook group.

A top-level domain idea for indigenous peoples — .indigi.

There are many indigenous groups of people — American Indian tribes, for instance, or Australian aboriginal people — who would be great candidates for a new TLD, but can’t afford the steep ICANN fees. To give them at least some identity on the Internet, Karaitiana Taiuru, a Maori, has come up with a plan to let them register second-level names under .indigi, such as maori.indigi, or navajo.indigi, or taino.indigi.

Although I applaud the idea and the effort, I admit to being steamed at ICANN that they have allowed a fee structure that blocks new TLDs for these, certainly among the most deserving applicants.

Check out the .indigi site, or this blog post on .indigi which explains the plan in greater detail.

[.indigi, dot indigi, Maori, Navajo, Taino, top-level domain, ICANN]

As my 350 closest friends are aware, I have been pursuing .NYC hard for over a year, and in fits and starts since 2000, in conjunction with my friend Bill Semich, who manages .NU. dotNYC is the company behind our latest (and now it appears final) effort to get New York City to get behind the .NYC top-level domain.

Now we’re officially out of stealth mode, because New York City Council Speaker Christine Quinn has outed our effort to launch .NYC (PDF) in her State of the City speech today in front of most of the elected officials of New York.

Said Speaker Quinn to chants of “Dot N - Y - C” (seriously) from the crowd of elected officials:

While we look to cut spending, we’ll keep our eyes open for any new sources of revenue. Here’s one that’s been right in front of us for years. Web sites end with dot com, dot org, dot this and dot that. Thanks to the leadership of Council Member Gale Brewer and Deputy Mayor Bob Lieber, New York City will soon have its own place on the web – with dot NYC. Mark Twain famously advised “Buy land, they’re not making it anymore.” Well now we can make more New York addresses – just on the internet!
A local business won’t have to outbid a guy in Kansas to get Tony’s Pizza dot com. They’ll be able to get Tony’s Pizza dot NYC, a name associated with the greatest city – and home of the greatest pizza – in the world. Most importantly, we expect to generate millions of dollars a year through the sale of web addresses ending in dot NYC.

So the City Council and the Mayor’s Office are now on record as supporting .NYC — a huge win for New York City and for us. At this point, it looks like .NYC will definitely happen. Now it’s a matter of following the proper processes, including a possible RFP, educating people in the government about what a top-level domain is and how it could work, and filing a winning application with ICANN.

Thanks to all those who supported the .NYC project while it was in stealth mode.

See also the press about .NYC at Crain’s New York Business — and I’m sure more is on the way….

For more, check out the infant dotNYC web site.

Tags: .nyc, dot nyc, dotNYC, Gale Brewer, Bob Lieber, Christine Quinn

Bart Lieben is an intellectual property attorney who has become the go-to guy for trademark verification for top-level domain Sunrise periods.

In my interview with Bart, he talks about how he does his job, with some tantalizing hints about a system he’s developing to make the whole trademark verification process much easier and cheaper.

AVC: Hi Bart

BL: Hey

AVC: Let’s just jump right in. Tell me where you’re based and the name of your company.

BL: I’m based in Brussels, Belgium. I am a partner with the law firm of Laga, one of the law firms that are aligned with Deloitte, the largest provider of professional services in the world. We are a full-service business law firm with lawyers specializing in a wide range of disciplines. One of them is intellectual property, technology, media and telecommunications law.

AVC: I know you did the examinations of the trademarks for the .eu sunrise — was that your first exposure to domain names?

BL: No - my first exposure to domain names was in 1998, where I took part in the discussions that led to the UDRP, albeit from a distance.

After the UDRP was implemented, WIPO started the so-called “second domain name process.” The UDRP was the result of the “first.” So, on the basis of the recommendations from this second process, the .BE registry decided to put in place an arbitration system for domain name registrations within their realm. I was one of the co-authors of that domain name dispute resolution policy, which - in terms of scope - is one of the largest around (still).

In 2004, I assisted EURid in directing the .eu Sunrise process, and have been assisting nine or so domain name registries ever since. On the basis of this working experience, ICANN has appointed us to assist them in the development of the evaluation criteria and process for the New gTLD Program.

AVC: I understand that you’re providing services for new TLDs. Are these the same services that you provided for .eu? Can you describe what they are?

BL: We are doing various things in the context of new gTLDs.
First of all, we help parties, companies and communities, to prepare for and participate in the new gTLD process. We carry out feasibility studies, draft business plans, connect future applicants with important players in the market, etc. Since we have been working with ICANN, various registries and hundreds of registrars, we avoid future applicants to reinvent the wheel …

Second, we are managing sunrise processes as we have done for .eu, .mobi, .asia, .me, .nl, and .tel.

Let’s start with companies and “brand-TLDs”. What we do here is providing an end-to-end service: we start off by making a feasibility analysis wherein an independent recommendation is given to the board of directors of the company whether or not it is a good idea to have a brand-TLD, what the risks and opportunities are, and what the total cost for the company will be.

In our experience, this is what is lacking with many of the consultants that are reaching out to brand owners: what most of them are proposing is to assist the company in “drafting the application”. Now, drafting the application is the easy part … They might therefore be perfectly successful in securing the TLD, but they forget about the overall picture, the impact on the company and the total cost of the exercise in managing the extension and the domain names registered therein. And this is the added value we bring in.

If the board decides to proceed, we help the company in drafting a business plan, a subset whereof are the responses to the questions asked by ICANN.

With respect to Communities: we see a lot of start-up activity here, and some ideas that actually might really be successful. What we bring in with them is our experience and expertise to organize in bringing their ideas to the market. Again: avoiding the duplication of efforts and reinventing the wheel. Over the past years, we have assisted four Community-based-like registries in launching their activities, so there we have quite some experience these future applicants can tap into.

AVC: Without revealing any secrets, how many companies do you think will apply for what some are calling “vanity” TLDs? Just a guess of the marketplace. Do you think there will be 200 companies applying to ICANN for a TLD to match their company name or main brand? Or more, or fewer?

BL: Hard to tell - I’m not really good in crystal ball gazing, but I guess there will be a hundred or so “early adopters”.

AVC: Thank you, that’s very helpful, because not many people have any idea of this market.

BL: I must say that we attract a lot of interest from big corporates. Now, these organizations in most of the occasions do not have a clue on how to approach this process. As I said before, the main aim of our service is to provide the company with a complete picture on what it takes to manage their own TLD. None of them are in the business of running a registry, so there is a lot of know-how to be transferred and handholding to be done …

Many of them have missed the boat in the nineties when they wanted to register their brands in the gTLDs and ccTLDs, and were confronted by cybersquatting. And they certainly do not want to have that experience again.

In brief, brand owners are coping with various issues:

if you read the comments that were submitted to ICANN, it is clear that brand owners are concerned about the new gTLD process. It is clear that sitting on the sidelines and wait until the new gTLDs will go away is simply not an option for them; since this is a new thing, many corporates are looking around and want to know what their competitors are doing. And when you dig a bit deeper in order to know their concerns, it is mostly because they want to be an early adopter themselves … in light of the above: the representatives we are talking to do not want to receive in two years time a telephone call from their CEO why they did not secure their brand as a gTLD; the complexity of applying for, setting up and managing a TLD: corporates understand that managing a TLD is not like registering a trademark or a domain name: there are many technical, operational, financial, and business criteria to be met.

Now 95% of the companies we have been talking to and are considering applying for their own gTLD want to have a full outsourced solution: they might spend the money in order to obtain the gTLD and manage it, but they will not spend five minutes in doing it themselves, because it is simply not their core business;

In order to meet the above concerns, we are carrying out feasibility studies for corporates, and recommend a strategy to the board. This recommendation could be not to participate, but at least the company has a basis on which they can take an informed decision.

AVC: When you do a feasibility study, what criteria do you look at?

BL: We have more then a hundred questions and discussion points that are aimed at helping corporates to get their heads around this. And this is for the feasibility study alone. Basically, it is a multidisciplinary exercise - with many angles and even more pitfalls for corporates.

For instance, we are looking at the suitability of the trademark (if you have a long trademark, it might be a bit silly to apply for the corresponding TLD, and some applications on the internet will not even recognize the extension). We are looking at the envisaged use of the gTLD, whether or not identical or similar trademarks or acronyms exist, and the likelihood of their owners applying for their own TLD, what their “community” definition would be and how they would be able to represent this community, etc.

We have developed specific methodologies in order to identify and quantify the values and risks of having a brand-TLD, and we analyze the total impact on the business. Again: we look at the complete picture, and this from an independent and objective point of view.

Most of the consultants or service providers that are targeting corporates or communities in the context of the new gTLD program have an interest that goes beyond submitting the application and launching the gTLD.

Since we are not a registrar nor a back-end registry operator, and are hence not looking at the “long tail”, we can provide companies, organizations and governments with an objective and independent opinion on whether a proprietary gTLD is something for them or not.

AVC: I notice that once there is a TLD, you cannot get a new TLD that is confusingly similar. Are any companies moving forward with a TLD application in order to exclude potentially infringing registrations in the future?

BL: Yes.

AVC: As I understand it, owning a TLD might this would prevent second-level infringements as well.

BL: This depends. You cannot exclude everything. There are actually three different approaches corporates take. 1) We are going for this, because we think it is strategically important. 2) Defensive: let’s wait and see. 3) No participation — we stand at the side-line and oppose against third parties in case they apply for a TLD that is identical or confusingly similar to our trademark. The problem with the last approach is that you need to demonstrate that there is infringement… and this is not clear at all. It is not because a TLD is identical or similar to your brand, that there is automatically infringement …

AVC: This would seem to be a new criterion for UDRP cases in the future. Are there procedures in place for this within ICANN or the UDRP framework?

BL: At the top level, ICANN has the opposition framework (officially: “infringement of rights of others”). At the second level, ICANN has the UDRP as Consensus Policy. The main concern brand owners have is that ICANN has not defined a uniform process whereby brand owners can secure their brands at the second level with the new gTLDs, or prevent such registration.

On the basis of the comments ICANN received up until December 15, it is clear that many brand owners are not quite positive about having new gTLDs, since this will require them to secure their brands in extensions they do not really see as valuable.

AVC: Can you expand on your community-based applicant comment? I’m not sure I understand.

BL: For instance, Deloitte is thinking of submitting an application for .DELOITTE. In order to have a domain name registration within .DELOITTE, they might impose the eligibility requirement that you must be a company that is part of the Deloitte network of firms or an employee of one of such firms. So if you make sure that you are meeting those requirements, it will simply be impossible for a company like eBay or Amazon to obtain a domain name registration.

AVC: And that would be seen as a “community” by ICANN?

BL: This again depends. There are various issues to consider when defining your community. What we suggest is to do this exercise in quite some detail; when you change your plans at a later stage, you might be required to renegotiate your contract with ICANN …

AVC: True, except that they will (they say) hold you to the restrictions you place on who can register.

BL: This is not more than normal, in my view. Assume that there are two parties who want to apply for a particular gTLD, and only one of them has opted for a community-based application. If he or she obtains the TLD, and starts operating it like an open TLD, this would not be fair towards the other applicant who has presented it as an open TLD from the outset.

Second, if you would be in contention (the likelihood we will determine in the context of the feasibility study), you must make sure that you jump all the hoops, and there is no problem of holding you to the restrictions: it is unlikely that a global brand owner does not want his competitor to register their brands in his TLD. So a process needs to be put in place to verify eligibility requirements. Something we are quite good at …

AVC: Which brings me to my next question…. Do you separate out your services? For instance, can someone come to you just for assistance with their Sunrise period?

BL: Absolutely.

AVC: So I also provide consulting to TLD applicants, so in a sense we are competitors. But I don’t have any official competence in verifying trademarks. Could I come to you and say, Bart, we’re doing a Sunrise Period and we need to verify that the submitted trademarks are legitimate. Is that something you would do?

BL: Sure, no problem at all.

AVC: I suspect that I am not the only one who wouldn’t be able to do this without assistance. So you probably will have a pretty big customer base. Can you give a sense of what this would entail as a process, and what the costs might be? I’m sure you can’t quote a flat rate, but there are a lot of people out there trying to construct budgets, and from what I’ve seen this is a big unknown, so any hints would be helpful.

BL: What we have been looking into for quite some time now is to set up a workable system that meets the concerns of the community of trademark owners, as expressed by them in the context of the new gTLD process.

We have a huge database built from past experiences. This database contains tens of thousands of records of trademarks matched against domain names. We have verified each record against a set of criteria, such as: is it a word mark or is it a device mark, is there a special character in the trademark or not, etc. About 20 criteria in total.

So, one of the things we are thinking about is to offer future registries access to the database for free or for a symbolic amount. I cannot mention prices yet, since we are budgeting ourselves, but in any case, it will be low (or even zero).

We get our money from the registrars, who pass on a fee of X to the trademark owner. For this fee, we keep the record up to date for a year. This means: we are going to check on a monthly or bi-monthly basis whether our record is still in line with the official information on the trademark database. If it is not, we update our database, and provide a complete and up-to-date record set to the registrar.

AVC: So this goes beyond the Sunrise Period — you are effectively offering a trademark-watch service for registrars, correct?

BL: We offer various things in this respect: sunrise services, trademark watch and prosecution, portfolio audits, litigation and alternative dispute resolution, but what I am talking about here is sunrise services.

So how would it work? For instance, a company is going to apply for .XYZ. Its sunrise policy only allows companies with a presence in Latin America to apply. They only allow registered word marks, because they think (wrongfully, but OK) that device marks are risky. The trademark must be applied for before date X, and must be registered at the latest on date Y. They also do not allow special characters to be omitted, but they do allow special characters in a trademark to be transcribed.

If this is their sunrise policy, in a nutshell, I can provide them with the complete data set of trademarks that will qualify for this particular sunrise. All the registrar needs to do is activate the names. Sunrise in a blink of an eye …

AVC: Interesting. How do you handle common-law trademarks such as are found in the U.S. and British Commonwealth jurisdictions? Are those in your database as well?

BL: We have a process for determining those, yes. For instance, in the context of the .eu Sunrise, unregistered trademarks were included in the scope. There was a lot of debate on how these types of IP rights would be dealt with, but the solutions we offered have proven to be working.

AVC: That’s really great.

BL: Same for company names, trade names, business identifiers, personal names, etc. The whole lot. However, the point is that you need to set up the database only once, but you need to keep it up to date as well. With quite some inaccurate information contained in the official trademark databases, experience learns that this will be a real challenge. But I trust the team that is working on it: I am proud to have the right people with the right expertise on the ground to manage these processes.

AVC: Let’s suppose that you want to verify information outside the trademark arena. Let’s suppose you had a “city sunrise” where residents and local business will get first choice, after trademark holders. Could you assist with verifying residency?

BL: Absolutely. We will come over and ring door bells, if you want ;-)

AVC: One thing I didn’t understand. You said that you would charge registrars and pass along money to the trademark holders. How does that work?

BL: Well, the registrar “sponsors” the record in our database, and passes on our bill to the rightholders. So we invoice the registrar on an annual basis. The registrar invoices his client. It’s actually a bit like working as a registry. It will solve a lot of issues, I am sure.

AVC: Interesting. So you’re really constructing that mythical beast that registrars have been crying out for — a definitive list of trademarks to test registrations against.

BL: Exactly. It will be a risk- and error-free operation. Experience learns that errors in domain name applications can be a huge threat in the context of TLD sunrises. The system we are developing excludes that risk to a large extent.

Look at the .EU sunrise: there was a lot of criticism about how the sunrise process was managed, and this on the basis of the large number of rejections of domain name applications. But nobody actually questioned why these applications were rejected. Now, you must know that more than 50% of the domain name applications we received contained erroneous information. So the criticism can be summarized as: “I know I have made a mistake, but since you are not doing anything about it, it is your problem” …

Another example: we are currently working on the sunrise for .CO.NL, which includes some kind of grandfather for domain name registrations in .NL. So, basically, registrars just need to copy-paste WHOIS information. You cannot imagine how many mistakes are made….

AVC: Finally then: If someone wants to get in touch with you, what’s the best way?

BL: By email blieben @ laga.be or mobile: +32473910621

AVC: One last question, something I’m always interested in. How on earth did you get involved with this field of domain names? Does it still hold your interest? Why?

BL: I knew from the very beginning that this would be an area that would entail many legal pitfalls. Many IP fields are beaten tracks by lawyers, so if you want to stand out, you need to find an angle that nobody has seen. I have that with a number of things: valuation of IP rights, validation in the context of sunrise periods for domain names, transfer pricing aspects of IP (tax issues in general). So I am trying to stay away from the beaten track, and try to find new, innovative things.

AVC: Well you are certainly a valuable resource when it comes to Sunrise for domains. And I’m very interested in your database project; I think it holds real promise and I think we all look forward to hearing more.

BL: Good, I will keep you up to date. Always a pleasure talking to you.

AVC: The pleasure is mine. Have a great evening.

Tags: Bart Lieben, Laga, Deloitte, ICANN, new top-level domains, new TLDs, ICANN, Sunrise Period, trademark verification

A cranky letter from the NTIA to ICANN (PDF), submitted in late December during ICANN’s comment period for new top-level domains, has encouraged the awkward coalition of those opposed to new TLDs. The NTIA (National Telecommunications and Information Administration), a division of the Department of Commerce, is the agency tasked with being ICANN’s watchdog. So a letter from them carries some weight, though not as much as some people think.

The letter basically says (read it, it’s not long) that ICANN hasn’t proven that new TLDs will benefit the consumer, which I suppose is true, although I wonder how anyone could prove that without actually trying it. Otherwise, the letter asks for many of the changes that others who support new TLDs (including me) have asked for, including justifying the excessive fees, come up with a way other than auctions for deciding which applications are better, come up with a better way of managing contracts, etc. etc.

ICANN’s response is predictable: we received many comments, they raised some good points, our next draft will have changes based on the comments we received. Period. NTIA’s letter is one of many. I’m not sure why people thought that ICANN would change direction based on a cranky comment, even from the NTIA.

There are good reasons ICANN won’t change direction. When you consider these all together, it’s hard to see how they could do anything except push ahead.

• New gTLDs are a core mission since ICANN’s inception. No-one can be surprised this is happening, only that it took so long.
• The process for new gTLDs was originated in the GNSO (ICANN’s “General Assembly”) and brought forward in accordance with the procedures in place. These procedures, in turn, were brought about by the constant (and justified) harping about how ICANN needed to be more transparent and democratic. It wasn’t the Board who thought this up. In other words, the new gTLD activities happened because ICANN did what the NTIA (and others) insisted that it do. If the NTIA cares at all about being consistent, they aren’t left much room to object.
• The NTIA can chastise ICANN, but they have a pretty blunt instrument with which to do so. They can not renew ICANN’s lease if they want to, and choose to create a new ICANN. I doubt very much that they’re interested in doing that. Otherwise, they can simply voice their displeasure from time to time, as we all do.
• There’s a new administration in town. Of course there is a certain level of follow-through between administrations, but it’s likely that the Obama administration will have different priorities from the Bush administration. From that perspective, the letter from Acting Assistant Secretary Baker has less weight than it might have had a few years ago.
• It’s not as if everyone is against new TLDs. In fact, opposition seems to be limited to trademark holders, who continue with their longtime opposition; domainers, who have suddenly discovered the allure of protecting vested interests; and ICANN detractors, who hate everything ICANN does. I wouldn’t call this a united or stable coalition.

Domainers are caught in a bit of a bind. On the one hand, they bravely tout the idea that .com is king, that .com is so ingrained in people minds that nothing will ever change it, that domainers should ignore new TLDs (see for instance comment #10 here). On the other hand, their lobbying organization, the ICA, has taken on the task of stopping new TLDs with vigor, suggesting that in fact there is concern about people thinking something besides .com.

In general, the domainer press has given a lot of attention to something that, in the orthodox domainer formulation, is irrelevant. The publication of the letter on ICANN’s site ignited a conflagration in the echo-chamber of the domain press.

The most colorful overamplification is Domain Name Wire’s headline “U.S. Government Has Domainers’ Backs.” Whatever else you can say about Secretary Baker, she is definitely not in the business of protecting domainers. She gets lobbied all day by intellectual property owners, most of whom would throw an anvil to a drowning domainer. Verizon’s $33M judgment against OnlineNIC is an itty-bitty clue about how trademark owners feel about domainers. (Yes, there is a valid distinction between “domaining” and “cybersquatting,” but that’s not how many trademark owners see it.)

There are some who want to stop new TLDs, for a variety of reasons. I’m not at all sure that the NTIA is among them; they just want to make sure ICANN doesn’t hand them a headache. But there are lots more who want to see new TLDs go ahead, and they’ve been working at it for 10 years. For many, a TLD means having an identity on the Internet. These include regional/ethnic groups (e.g. .CAT for Catalonia, already in the root), some brand owners who would rather promote their own brand than VeriSign’s .com brand, community groups who see the promotional value of all their members using an email address that promotes the organization (e.g., .AARP), and yes, some entrepreneurs with what they think is a good idea.

ICANN is following its procedures and is moving ahead. Many people filed comments (including the NTIA, but also including myself) on what we saw as flaws in their plan. ICANN is addressing these, and the new draft will tell us how well they succeeded. But I don’t see this movement being stopped, or even slowed down significantly.

Tags: ICANN, NTIA, Meredith Baker, domainers, VeriSign, .CAT, dot CAT, Domain Name Wire, new TLDs, new top-level domains, U.S. Department of Commerce, cybersquatting

The government of France is asking for bids to run .FR (in French), the ccTLD of France.

The incumbent, AFNIC, is the odds-on favorite to win, but there have been grumblings for a while from its customers, especially in francophone Africa and the Caribbean. AFNIC recently lost the business of .HT (Haiti) to scrappy CoCCA, the open-source co-operative ccTLD registry. CoCCA seems to be giving AFNIC quite a bit of trouble these days: the mere mention of them caused neck veins to bulge on the AFNIC rep I met at the Paris ICANN meeting.

The winner of the tender offer will get .FR and all of France’s colonial domains in the package. It’s not clear what would happen to the independent French-speaking ccTLDs who have contracted with AFNIC.

The actual text of the rebid is here. (PDF)

A smart French businessman with a taste for dealing with the French government could do a lot worse than making a deal with CoCCA and making this a competitive bid.

Tags: AFNIC, .FR, dot fr, CoCCA, ccTLD, .HT, dot HT

As an aid to planning, I put together a PDF timeline of milestones and associated costs. This doesn’t include all costs, for instance rent, staff, travel and so on, but it does capture most of the likely and contingent costs associated with the process of getting a new top-level domain through ICANN.

Click the illustration below to download the full PDF (434 KB), which you can print and tape to the front of your 52-inch plasma TV to remind you that you’d better get to work raising some money.

(Click illustration above to download printable PDF)

Explanations:

• At the July 2009 marker, a box says “Bank Balance (~$1M+ ?).” This refers to the ICANN requirement that at the time you submit your application, you must show that you have enough money to operate your proposed registry. Is it $500 thousand? Is it $2 million? I don’t know, but my completely unsubstantiated guess is that $500K is too little and $2M may be overkill. Hopefully ICANN will be clearer about this in the next draft of their Guide, which is due Feb. 2009.
• In general, a question mark means that it’s unclear what it will cost. If there’s a range, I’ve given the range.
• Your costs for lawyers, marketing, etc. will vary according to your means and your goals. I’ve tried to give what I think are likely to be the least you can get away with for a “typical” TLD, whatever that means. In other words, these are my guesses.

A word about consultants — yes, of course I’m tooting my own horn. But, unless you have the time and patience to deal with the minutiae of ICANN, you will need to find someone who can do it for you.

A good consultant can help you plan, budget and anticipate obstacles. More important, he or she can alert you to ICANN rules (or rule changes) that affect your business plan, and help you either promote, block, or amend those rules if possible. Very often it is possible, because ICANN isn’t cognizant of all the implications of their policies, and if you are able to point out a flaw, they can fix it. It’s also important to know which policies are the result of long entrenched battles (forget changing those), and which are relatively new and unexamined (good chance of changing them). So, please, don’t spend $185K on an application which just won’t fly. If you don’t want to hire me, just send me a note, I can recommend other good consultants who know the space.

If you have a question about my compressed notations on the timeline, write to me or leave a comment and I’ll explain.

Tags: ICANN timeline, , ICANN new gTLD, ICANN new TLD, ICANN fees, ICANN consultant, ICANN evaluation, ICANN Guide to New gTLDs

WARNING - this post will not be interesting to anyone who doesn’t care about ICANN and how it manages the Internet. If you do care, or if you’re an insomniac, it might be worth a read.

ICANN commissioned an “Independent Reviewer’s Report,” containing recommendations for changing ICANN’s Board. Personally I found the report completely toxic and so I wrote them a long screed, reprinted here. I submitted this to ICANN’s comments section before today’s deadline. It hasn’t shown up there yet, but it should soon.

******

I thank ICANN for the opportunity to comment on the 100-page “Independent Reviewer’s Report on the ICANN Board.” While my consulting company, Names@Work, works on projects connected to ICANN, I speak here as an individual, and not on behalf of any client.

With all the fuss about new gTLDs, this important report, and the recommendations made in it, must have escaped the notice of the many intelligent commentators within the ICANN community. I say must have, because the conclusions of the report, and its recommendations, will cause grave concern to those who read it.

The report was written by the Boston Consulting Group, which “has focused on helping clients achieve competitive advantage,” and Colin Carter & Associates, which provides “high level advice to major corporations in Australia and internationally.” This cliched corporate marketing-speak, which comprises the very first part of the report, is an important clue to the perspective of the report’s authors, and perhaps the key to decoding their recommendations.

The report’s authors treat the Board’s work as if efficiency of execution, streamlining of process, and avoidance of fatigue by the Board’s members are the criteria by which to judge it. These are perhaps the proper values of the Board of a for-profit global corporation, but they are not appropriate for ICANN, which has assumed the heavy burden of a global public trust.

The authors of the report disclaim this bias, but I find that hard to credit. They say (page 12) that “As reviewers, we have no intrinsic problem with ICANN’s model.” How, um, comforting. If it is not intrinsic, what kind of problem do they have? Clearly, if they bother to disclaim a particular class of discomfort, another one must exist. Bear in mind that these are the same people that put the words “public trust” in quotes in the previous paragraph. Whatever the intentions of the reviewers, they are necessarily steeped in the corporatist values that they operate from. These are not ICANN’s values. The Report must be read with their evident discomfort with ICANN’s structure in mind.

For ICANN, the values must be not efficiency, but proper check and balances; not streamlining, but right action; and not alleviating the boredom of its Board, but in finding Board members who can shoulder the important challenge that a seat on the ICANN Board represents. This is not to say that there are not ways to achieve better results with fewer groans, and the report does include some useful suggestions, such as fewer Board teleconferences and longer face-to-face meetings. Recommendations such as these are welcome, though one questions the need for an expensive 100-page study to rejigger meeting times.

The composition, agenda, and work effort of the Board must be seen in relation to the challenges that face ICANN. The narrow lens of decision-making efficiency is grossly inappropriate to this remit, and renders the conclusions and recommendations of the Report misguided and dangerous. The Board’s work must also be seen in light of ICANN’s stated guiding principles, which include diversity, transparency, and outreach. As ICANN grows, it must also become concerned with the concentration of power in a few hands, in tandem with the absence of informed and active oversight.

Any suggestions regarding recomposition of the Board and its duties must be evidence-based. This Report, however, has little of that, relying largely the authors opinions and what they take to be common knowledge. I would say that until recently it was “common knowledge” that real estate was a safe investment. Let us have thorough substantiation of recommendations, and less faith in experts whose common knowledge has filled the boards of the banks and hedge funds that have ruined a generation.

REDUCING THE SIZE OF THE BOARD
The first recommendation of the Report, to reduce the number of Board members, whether by some or by half, fails to conform to any of ICANN’s principles. Almost by definition a halving of the Board’s membership is a loss of diversity, especially given the laudable representation on the Board of citizens of numerous countries and varieties of viewpoints. Furthermore, the diversity of the Board, in and of itself, has been one of ICANN’s major successes when it comes to outreach to those affected by ICANN’s work, and a smaller Board clearly does not advance that agenda. Transparency suffers too, in that it takes only one truth-telling Board member to inform the world, and our chances of that are much reduced by a smaller group, who must necessarily feel a greater solidarity with one another, and in consequence feel a smaller responsibility to the wider ICANN community. ICANN’s work is under constant attack; each member of a smaller Board would be subject to much greater scrutiny and criticism, the natural response to which is defensiveness and evasion. The early ICANN Boards, which were smaller, exhibited exactly this behavior, whereas members of the later, larger Boards have been much more approachable and willing to express diverse opinions.

The authors of the report seem to recognize this, but come to an opposite conclusion (page 4):

Quite different opinions can be seen in the survey results but it is not really surprising that a diversity of views emerges. Our view is that this reflects the truly challenging complexity of ICANN and its governance task as well as the diversity of background of the board members themselves. On a large range of issues – particularly on those relating to role, structure, process and people – the board members are not of one mind. These are mostly the areas where opportunity for improvement exists.

Later on, they come up with a bare assertion that covers the rest of their thoughts on this matter (page 19):

Some might think too that a large board is better able to exercise its duty of oversight over management than would a small board. But experience indicates that the opposite is true.

Footnotes? References? Case studies? Anyone? Bueller? “Experience” (someone’s, apparently) is what “indicates” that their point is correct. I dispute that this thin and unsupported assertion should be the basis for a radical transformation of the Board.

I take the diversity of the Board to be a good thing, not bad. That Board members are “not of one mind” is the point of having a Board, instead of a dictator. Diversity of opinion is to be cherished, not paved over so that the limousines of particular interests can enjoy a faster ride to the finish. This is not an “opportunity for improvement” but a bedrock principle of the organization.

In my opinion, the recommendation to reduce the Board membership, without proper compensating measures preserve diversity and openness, based on an unsupported assertion of “experience” and some surveys of corporate boards, is reckless and unsubstantiated and should be rejected.

ADDING AN OBSERVER FROM THE GOVERNMENT ADVISORY COMMITTEE
Among the sub-recommendations included in the Report’s is that the Government Advisory Committee should have an observer role on the Board. Apart from the insulting (to the ICANN community) arrogation to the GAC of an authority which is precisely prevented by its status as an advisory committee, this recommendation is absurd in the face of the previous recommendation, the diminution of the size of the Board. Is the Board better off with fewer members, or not? You can’t have it both ways. Furthermore, there is no discussion of why this should be so other than that the Report’s authors understand that “government support is critical” and therefore “accept that a GAC observer at Board meetings may be important.” It sounds as if someone has been feeding them a recommendation. Isn’t support from Internet users also critical? Or from trademark holders? Or from root server operators? Why shouldn’t we all get observer status.

The role of the GAC is currently one that we must tolerate, rather than celebrate or encourage. If we wanted a greater role for national governments and “international fora” we could turn ICANN over to the ITU, where it would be run as the telephone system is. ICANN’s history, debates, and original intent is to avoid precisely that. The careful distance at which national governments are kept is part of ICANN’s DNA, and this proposal is another instance of the Reports lack of sympathy or understanding of ICANN’s mission.

BOARD COMMITTEES
I am once again appalled by the recommendations put forth. I have no issue with making workloads easier to manage, but it is as if this Report were commissioned by, and written by, people who would destroy the democratic character of ICANN (such as it is).

Let us start with what the authors view as the “Core Committees.” Excluded as a “core” committee is Public Policy and Ethics. How is Public Policy not a core mission of ICANN? It may be argued that public policy is the sole mission of ICANN, but it can certainly not be relegated to the sidelines.

But far more concerning is the recommendation that the Board be involved in selecting its successors. The Report’s authors seem to regard ICANN’s community as employees — that is, expensive annoyances that are necessary, but hardly to be consulted on matters of importance.

I quote:

“It is worth pointing out that in the corporate sector, the ‘Governance Committee’ is typically another name for Nominations Committee and the selection of board members is one of this committee’s most important duties. At ICANN, of course, the nomination process is dealt with by parties external to the ICANN board (such as the NomCom) and so it is not part of the Governance Committee’s scope. We have a point of view on this and believe strongly that the existing board should have some substantial input into the selection of new board members.”

Perhaps the authors are ignorant of the fact that for a short time we had actual elections to the Board, before the putsch in Ghana and the painful constitution of the NomCom, which has actually done a fine job. The quality of our Board members is better than it has ever been.

As to the authors having a “point of view,” so what? I “believe strongly” that this recommendation is a abomination. I wonder what the authors would make of the governments of the United States, France or indeed any democracy. Why don’t the Senators have “substantial input” into their successors? There are very good reasons for avoiding self-perpetuation of ruling powers, and they are the basis for all democratic institutions. Either ICANN has a community or it does not. If it does, the members must be treated with respect, not as if they are an impediment to efficient work.

As to the Board Members experience, I am amused and disgusted by Exhibit 9 on page 41, which by virtue of its irrelevant classifications manages to shunt many of our best Board members into the category of “Other.” Nowhere does this pointless chart mention anything about experience with the Internet, of management of not-for-profits, of experience with global organizations, multi-stakeholder organizations, or indeed of anything relevant to ICANN. Instead, we have multiple categories representing corporatist job descriptions: CEO, CFO, Banker, Investment Manager, etc. Speaking as a CEO myself, this chart tells me all I need to know about the (lack of) imagination that went into this report.

COMPENSATION
The Report ignores a festering problem with the Board, namely the grossly inequitable compensation of different members. Basically, the frugal are unpaid, while the profligate are remunerated handsomely. The Report talks about salaries, but they ignore expenses, which in the past have threatened to overwhelm other compensation. I wrote satirically about this at http://www.namesatwork.com/blog/2008/09/10/majority-of-icann-board-hopelessly-naive. I am, sadly, not amazed to find that those are lauded for their executive experience in Exhibit 9 of the Report are for the most part those who put in for tens of thousands (or more) in expenses, while those in the “other” category managed to do their job without soaking domain name registrants.

Because this unequal expense-taking is highly corrosive of trust in the Board, I would recommend that certain tightly-defined expenses (e.g., air travel) be reimbursed, while other egregious forms of corporate raiding (e.g. Paul Twomey’s “currency adjustments”) should be relegated to the category of poll taxes, protection money and other illegal payments.

SUMMARY
As must be clear to any reader, I would throw away the entire report as worthless. In fact, I would simply ignore it if not for the pernicious recommendations that ICANN might take seriously as a result of having (over-) paid for it. The mind-set, bias, and basic understanding of the authors comes from the corporate world, and whether they thought they could set that aside and make a fair assessment, very obviously they could not. The entire document is shot through with unwarranted assumptions, riddled with unsubstantiated opinions, and as a whole has been rendered useful only for demonstrations on how to recycle wastepaper by the authors’ evident ignorance of ICANN’s history or its values.

Whenever an organization hires a consultant to tell it what to do, it usually means one thing: that they already know what should be done (or what they want to do) but don’t have the courage to say it out loud without the cover of an “independent” opinion. Most of us who have worked in corporate America have seen this at play (or see the movie “Office Space” for a particularly telling rendering). Pick the right consultant, and they will bring you the right result. That this is here the case is obvious from various recommendations that the authors of the Report “accept,” e.g. the addition of a GAC observer. How are they “accepting” this? From whom did they get that idea? They certainly didn’t think this up on their own; there was obvious input from somebody, if only at the initiation stage. If the Board feels they need to do something with this Report (other than burn it), they should find out who commissioned it and have them explain their motives, and inquire about their input into it. That would do more good for the organization than any of the recommendations contained in the Report.

With the recent highly painful revelations about how completely ineffective corporate Boards have been in the financial, automobile, real estate and other commercial sectors, I recommend in the strongest terms that ICANN staff and the ICANN Board ignore the recommendations of this Report, whose authors come from that dysfunctional universe, in their entirety. They may, however, make food [sic] use of the surveys of the Board and staff published here, which is practically the only part of the Report that is evidence-based.

Finally, please excuse typos, missing words, and other detritus of a long letter written with a tight deadline. Thank you for your patience with this long comment.

Tags: ICANN, ICANN Board, Boston Consulting Group, Colin Carter & Associates, Government Advisory Committee, GAC, Paul Twomey, Independent Reviewer’s Report on the ICANN Board

Both readers of my recent post on the registry-registrar split must have called up ICANN to demand action, because lo and behold ICANN has scheduled two impromptu meetings to discuss the matter.

I quote from their page:

On 24 October 2008, ICANN posted the CRA International report titled, “Revisiting Vertical Separation of Registries and Registrars.” This paper has generated significant discussion in the community as it discusses the potential easing of the requirement for the separation of gTLD registries and registrars.

To advance community discussions on this issue, ICANN will be convening two open meetings with the first scheduled in Washington, DC on Thursday, 11 December from 2-5pm, and the second in Marina del Rey, CA on Friday, 19 December from 10am-1pm. The purpose of the consultations are to explore CRAI’s recommendations regarding the relationship between registries and registrars as well as other potential models that would be acceptable to a consensus of the Internet community.

If you plan to participate in these meetings, please RSVP to crai-report-consultation@icann.org and further information will be emailed to you.

Those who dwell on ICANN lists, and have something better to do on those two days, are howling about the short notice, with some justification. As yet there has been no announcement of methods of remote participation, if any.

I’ve RSVP’d to the address given but received nothing back yet.

Tags: CRAI report, registry-registrar split, vertical separation of registries and registrars, CRA International, ICANN

The Nigerian Internet Registration Authority (NIRA) is planning to auction off premium names directly under .ng, as well as under .com.ng, according to Computerworld Kenya. NIRA’s plan is to use the proceeds to keep other prices low.

Tags: .ng, dot ng, Nigeria domain names, NIRA