May 14, 2014 – While you were sleeping ICANN approved major changes to sensitive gTLDs.
At least 50 gTLD Applications, many involving sensitive strings that impact future Intellectual Property rights, have changed without notice. It appears that on April 30, 2014 (in some cases April 24th and possibly earlier), ICANN approved Amazon’s massive changes across most of its Applications – essentially removing plans to run “closed” or “restricted” registries for generic word TLDs.
First, to be clear, we applaud Amazon and others for finally taking the step to correct their Applications, and to presumably let the public know what they intend to do with these important generic strings. Indeed, we have been calling for ICANN to require all Applicants to file Change Requests where they originally filed to run closed or restricted access generic strings and were subject GAC Advice.
The changes are necessary to allow the public to be able to properly evaluate an Applicant and to hold Applicants accountable in the future. Without filing of changes to Applications, the public is left wondering just what an Applicant stands for, and by what standard and policies they will be held accountable. In many cases, we are taking about extremely sensitive strings addressing issues of Intellectual Property and freedom of speech – Music, Print, and Video Content. This is not limited to one Applicant or a particular string set, this issue spans many sectors and Applicants. A synonym for “Public Interest” could be “Applicant Accountability.” That is to say, if an Applicant can be held accountable on commitments made publicly (in their Application), then public interest may be met. So, in sum, we agree with the filing of changes to Applications.
We believe the notions of transparency and fairness require accurate statements in Applications, however how they are evaluated is a different question. The clear lack of notice and transparency from ICANN is deeply troubling in this instance. Beyond Amazon, many others have made changes to their Applications as well and in some cases it is beyond the public comment period.
By way of three (3) quick examples, Amazon filed and changed its Applications for .BOOK, .MOVIE and MUSIC. See:
So, let’s take a look at Application Question 18 for the three examples: . BOOK, .MOVIE, and .MUSIC
Version 1 of the Applications had potentially objectionable language like:
The TLD will “[p]rovide a unique and dedicated platform for Amazon…”
The TLD will “provide Amazon a further platform for innovation…”
“Amazon will continually update the Domain Management Policy as need to reflect Amazon’s business goals…”
“All domains in the .______ registry will remain the property of Amazon”
“.______ (insert generic string here) domains may not be delegated or assigned to third party organizations, institutions or individuals.”
“There is no foreseeable reason for Amazon to undertake public outreach or mass communication about its new gTLD registry because domains will be provisioned in line with Amazon’s business goals.”
While Question 18 is not graded, changes also cover Questions: 22, 28, 29, 46, 47, 48, 49 and 50. The above, non-exhaustive language is what, in part, lit the fervor over single Companies controlling “closed generic” TLDs (without trademark rights to do so), especially those that have a direct impact on safety and intellectual property rights. See Beijing Communiqué, http://www.icann.org/en/news/correspondence/gac-to-board-18apr13-en.pdf
It appears that Amazon has, in response to GAC and other pressure, now moved to change its applications by striking language and appears to be materially shifting from its original position. Again, this is the right thing to do and we applaud Amazon for making changes. However, competing Applicants were not notified of the changes that impact their contention set. Furthermore, is ICANN following its Bylaws and providing even and fair treatment to all Applicants?
Seems only ICANN and Amazon are aware of these changes – leaving the public, the GAC, and competing Applicants in the dark.What is more troubling is that the 30 day Public Comment period on these purported changes has been running for two weeks!
While we were worried about gTLD launches, and “Transparency” and “Oversight” have been the watch words of the day for the IANA Transfer, wholesale changes to Applications were submitted and approved by ICANN under the cover of darkness.
Section 1.2.7 of the AGB calls for changes to be submitted providing that “if at any time during the evaluation process information previously submitted by an applicant becomes untrue or inaccurate, the applicant must promptly notify ICANN via submission of the appropriate forms. This includes applicant-specific information such as changes in financial position and changes in ownership or control of the applicant… “ICANN reserves the right to require a re-evaluation of the application in the event of a material change. This could involve additional fees or evaluation in a subsequent application round. Failure to notify ICANN of any change in circumstances that would render any information provided in the application false or misleading may result in denial of the application.”
However, the method for submission of Changes also calls for a process. Among other things the Applicant is required to submit the changes to ICANN and ICANN is to evaluate the changes against 7 criteria. http://newgtlds.icann.org/en/applicants/customer-service/change-requests
Determination of whether changes will be approved will balance the following factors:
- Explanation – Is a reasonable explanation provided?
- Evidence that original submission was in error – Are there indicia to support an assertion that the change merely corrects an error?
- Other third parties affected – Does the change affect other third parties materially?
- Precedents – Is the change similar to others that have already been approved? Could the change lead others to request similar changes that could affect third parties or result in undesirable effects on the program?
- Fairness to applicants – Would allowing the change be construed as fair to the general community? Would disallowing the change be construed as unfair?
- Materiality – Would the change affect the evaluation score or require re-evaluation of some or all of the application? Would the change affect string contention or community priority consideration?
- Timing – Does the timing interfere with the evaluation process in some way?
ICANN reserves the right to require a re-evaluation of the application in the event of a material change. This could involve additional fees or evaluation in a subsequent application round. (AGB §1.2.7.)
Whether Amazon’s changes are indeed “Material” or whether they are “Fair” to other Applicants is a question for competing applicants to query. Whether ICANN is acting in a fair, even handed, and transparent manner is quite another issue.
These Applicant changes appear to have been approved by ICANN sometime in April, 2014 (in some cases for other Applicants earlier).
If you are a gTLD Applicant or an interested party go here
https://gtldresult.icann.org/applicationstatus/viewstatus to see if an Applicant made changes to their Application by clicking the “View Application Update History,” which should appear on the right side of the page IF changes were submitted.
Changes to Applications should be made, however, should not all Applicants be allowed to make changes in response to the GAC or developments over the past 2 years?The gTLD process has been in flux and everyone has learned much from April, 2012 (when Applications were originally submitted).
As we continued our research, at least one other Applicant advised us that their request to make a change was denied by ICANN.What standard was applied to this Applicant?Is ICANN treating all applicants fairly?
Given the significant debate and time spent on protecting CAT1 and CAT2 strings it is surprising that such important strings are being changed without notice.
Do these changes affect others in the contention set and are they in the public interest?
Moreover, what is more pressing is that there appears to be little more than 10-14 days left for your public comment.