The post that started it all is only a little over 3 hours old on Reddit.com and is entitled:

“GoDaddy supports SOPA, I’m transferring 51 domains & suggesting a move your domain day”

The poster goes on to say:

“”I just finished writing GoDaddy a letter stating why I’m moving my small businesses 51 domains away from them, as well as my personal domains. I also pointed out that i transferred over 300 domains to them as a director of IT for a major American company.

The House Judiciary Committee halted its contentious markup of the Sat approximately 1:30 pm this afternoon.

The hearing started yesterday around 10 am with a one hour reading of the bill and did not stop until 9:30 pm.

According to Phil Corwin of the ICA which listened to the hearing non-stop for the two days, “prior to halting the markup, Chairman Smith committed to hold either a hearing and/or a classified briefing for Committee members in regard to whether the bill’s ISP and search engine domain blocking provisions present cybersecurity issues. Smith said that the markup will resume at the earliest practical date in the 2nd session.”

“The House is scheduled to come back in session the week of January 16th, but as a practical matter, that action on the bill does not resume until early February.”

There is also expected in 2012 going to be an introduction of a less invasive Bill sponsored by Rep. Issa called OPEN legislation.

The Senate PIPA counterpart bill, S, 968, is still on the table.

I listened to a few hours of the session yesterday and while many of the house members supported the underlying message of the bill, many also expressed concern that the bill was being pushed through too quickly and without proper hearings on the matter especially from the Tech guys or Geeks as they were called,  to see whether the bill could be technically implemented.

Its an issue that is in my opinion going to get addressed with some legislation in 2012.

Something that all domain holders, registrars, parking companies and others in our space need to watch carefully.

You can read another account of this here.

 …

Below is what Phil had to say about this law and we have reprinted the letter he sent to the House Committee as well.

There is a hearing scheduled for December 15th.

The bill is a minefield for domain holders and those in the domain industry.

You should take sometime to review Phil comments and read the letter he composed..

“”Registrants, for example, might find it impossible to renew domains due to the extrajudicial termination of payments services sanctioned by the proposal, or to complete domain sales or transfers.”

“Further, many of the domain name industry companies subject to potential payment and advertising service termination under the bill might lack the income to pursue their legal rights, and could well be forced into bankruptcy.”

“This potential impact arises because, while domain names are subject to trademark law, the Anti-Cybersquatting Consumer Protection Act (ACPA)  as well as ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) place the responsibility for domain name infringement upon the domain registrant and look at a variety of factors, particularly the actual use of the associated domain, before reaching a determination as to whether infringement exists.”

“ICA believes that SOPA, as introduced, creates the strong possibility that trademark rights holders will seek to have payment and ad services terminated to registrars and other domain name intermediaries based upon the allegation that they are facilitating the use of domains that constitute “counterfeit marks” in and of themselves, without reference to actual use or available defenses. This potential shifting of “cybersquatting” responsibility from registrants to registrars and other domain name intermediaries, as well as the failure to incorporate the more comprehensive and nuanced analysis of the ACPA and UDRP, appears unjustified and unwise – and could lead to the shutdown of these domain name intermediaries and the associated termination of critical domain-related services to millions of registrants engaged in non-infringing uses of their websites.”"

“”The letter also expresses concerns that the introduced legislation needs substantial narrowing and is not required to effectively address infringement on websites subject to U.S. court jurisdiction, and will also have negative effects on cybersecurity and on the availability of venture capital for innovative Internet startups.”"

“At this time the full House Judiciary Committee is tentatively scheduled to “markup” – amend and vote on reporting the bill to the full House of Representatives – on Thursday, December 15^th.…

Its the house version of the PROTECT IP Bill which is even more stringent, provides great penalties on a wider range of people than the quite harsh PROTECT IP bill.

As the names of both bills indicate its all about IP protection and driving by the RIAA, Hollywood interests, Trademark Interests and those representing them. (known as “rights holders”)

The 79 page bill  Would Cut Off Website Payment and Ad Services Without Initial Court Review

It requires payment providers and ad networks to terminate their services to a website upon mere receipt of a letter from a rights holder alleging that the website was one “dedicated to theft of U.S. property”.

As the Internet Commerce Association wrote today:

“Any domain registrant who has ever received an aggressive and unsupported cease-and-desist letter from a trademark attorney has got to be concerned by the prospect of having a domain’s ad and payment services shut down absent any court review. The bill would provide the website owner with the ability to seek after-the-fact judicial lifting of the ad and payment suspension – but this expensive and uncertain option would occur during a period when the website had been deprived of all income! Overall, this approach creates major due process concerns and clearly tips the balance against domain registrants and in favor of rights holders.”
The bill’s requires ISPs and search engines to block access to all websites placed on a “blacklist” creating what some has described as  a “Great Firewall of America”.

The bill reads:

“”"”A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order.”"

To ensure compliance with orders issued pursuant to this section, the Attorney General may bring an action for injunctive relief….…

The situation arising about conflicts of interest arose after the former Chairman of ICANN Peter Thrush,  was hired by Minds + Machines shortly after leaving ICANN and leading the vote to approve the new gTLD program.

This Department of Commerce letter was sent in response to a September 14th letter from Senator Wyden to NTIA raising concerns about news reports of a “revolving door” at ICANN.

The letter was received via the Internet Commerce Association (the “ICA”)

You might note that Senator Wyden was the one who basically put the hold on the Protect IP bill that would have authorize private lawsuits that could shut down ads and payments on domains.

In the letter Senator Wyden writes:

“While I support the control of this system by NTIA, I also believe that any IANA employees ought to be made subject to the same ethics rules in place as NTIA employees. With the growth in importance of this authority, it is important to ensure that decisions are made impartially.”

“Senator Wyden’s interest in this issue was reportedly sparked by a September 21st story in the Washington Post headlined “A ‘revolving door’ at nonprofit keeper of domain names”

Secretary Strickling’s letter of response also notes that the NTIA has conducted two Notices of Inquiry regarding the IANA contract in February and June of this year, and has “received 136 comments from a range of domestic and international stakeholders including governments, private sector entities, and individuals who also noted the need for increase transparency and accountability” — all as part of the first comprehensive review of the IANA contract since it was initially awarded to ICANN in 2000.

NTIA recently exercised its option to extend the length of the current IANA contract, from the end of September 2011 to March 2012, to allow for extended consideration of whether the contract should be re-awarded to ICANN, as well as what additional conditions should accompany it.

Here is the letter:

ICANN-NTIA Letter to Sen. Wyden 9-21-11…

The Post is written by Phil Corwin of the ICA which talks about a topic we have been warning about for a couple of years now, which is the existing Registries may want the same terms and conditions in their contract the new gTLD operators will be getting including the right to price domains differently (variably pricing) and there is also a movement to apply the Uniform Rapid Suspension (URS) to existing extensions like .com and .net.

Here is the post:
“”On June 1st an ICANN comment period ended in regard to the process for terminating registry/registrar separation at incumbent gTLDs like .Com and .Net (announcement at http://icann.org/en/announcements/announcement-02may11-en.htm).

“ICANN’s Board has decided that any new gTLDs will not be subject to such a separation requirement and will rely on other restrictions as well as national competition authorities to curb any potential harms. So this proposal is designed to “level the playing field” for incumbent gTLDs.”

“The process proposed by ICANN would give the incumbents a choice of accepting the entirety of the new gTLD registry contract, or negotiating changes in their existing contract with ICANN and then subjecting those proposed changes to public comment. ICA presumed that incumbent registry operators would choose the second route.”

“However, of the four comments filed on this issue, only the Registries Stakeholder Group proposed technical adjustments. The other three parties – Momentous, AusRegistry, and the International Trademark Association (INTA) – took an “all or nothing” position to the effect that any incumbent gTLD wishing to affiliate with a registrar must adopt the entirety of the registry contract for new gTLDs to prevent “cherry picking” of favorable terms. (Comments at http://forum.icann.org/lists/cross-ownership-existing-registries/ )

We have no idea whether VeriSign plans to seek to integrate with an ICANN-accredited registrar, or if a major registrar might propose to merge with or acquire VeriSign.

But if the “all or nothing” position were applied to .Com it would mean:
·         The end of any pricing constraints
·         The imposition of all the new gTLD “rights protections”, including Uniform Rapid Suspension (URS)

We anticipate that some business interests holding large portfolios of defensively registered or UDRP-acquired domains would resist the termination of price controls – but might simultaneously support imposition of new gTLD rights protections as a condition of integration.…

Yesterday the Business Constituency of ICANN came out in support of placing the Uniform Rapid Suspension (URS) proposal into the .Net contract.

Earlier today we told you that though the hard work of Phil Corwin of the ICA, the BC dropped its request.

However some other Intellectual Property (IP) interests have now filed comments with ICANN asking that the URS be placed and made part of the .Net contract.

The Intellectual Property Consistency another working ICANN group filed its comments in support of putting the URS into the .Net Contract. (pdf) saying in part:

“”"Once the post-launch rights protection mechanisms called for in the new gTLD registry agreements are up and running, .NET should be obligated to participate in them. Notably, .NET should be required to make the uniform rapid suspension (URS) system available as an efficient and expeditious method of dealing with clear-cut cases of abusive registrations in .NET. The renewal agreement should set forth a process for ICANN to specify the date upon which these obligations will become effective for the .NET registry, along with an adequate transition period for the registry operator to put the necessary procedures into place.”

Therefore all Domain Holders must file a comment with ICANN on this matter today and make their voice heard.

In your comment, you can simply say you support the comments filed by the ICA or you may take part and pieces of this response and submit it as your own as Mr. Corwin has generously agreed

You can comment on the proposal by sending an email to net-agreement-renewal@icann.org

Once you send your comment you will get an email back which you must confirm by clicking on a link otherwise the comment will not be posted.

You can view current comments here.

Here is the comment filed by the ICA:

This comment letter is submitted by the Internet Commerce Association (ICA) in regard to ICANN’s April 11th notice (http://icann.org/en/announcements/announcement-11apr11-en.htm) establishing a period for public comments on the proposed renewal of the .Net generic top level domain (gTLD) registry agreement between ICANN and VeriSign.

ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them.…

Today word comes from Phil Corwin of the Internet Commerce Association that the BC has dropped this proposal in its new comments to ICANN.

In his letter to the BC today Mr. Corwin Wrote:

“The ICA supports this new draft.”

“We greatly appreciate the response of other BC members to our concerns regarding the imposition of untested RPMs through this contract renewal, and look forward to working cooperatively with other BC members to address rights and consumer protection issues within the context of UDRP reform and other appropriate mechanisms.”

“ICA’s comment letter will address the issue of RPMs based on the possibility that others may suggest such amendments to the contract. We will also support transition to Thick WHOIS, as well as the possibility of VeriSign’s engagement in commercial use of traffic data so long as ICANN engages in vigorous enforcement of contract clauses regarding nondiscrimination and prohibition of wildcard services.”

“Finally, while not opposing new contract provisions that permit VeriSign to offer marketing and price incentives in “geographically underserved’ regions, we request a tighter definition and other safeguards to prevent gaming as well as to assure that this will not lead to below cost furnishing of .Net domains to such regions subsidized by developed world registrants. In that regard, we note that the current and revised .net contract sets annual registry-level transaction fees at $.75 per domain, which is $.50 higher than the standard for most registry contracts, and that this differential generated approximately $6.8 million in additional ICANN revenue in 2010. These monies are set aside in a  restricted fund, the primary use of which is supposed to be support of developing country Internet communities in ICANN, and we request that ICANN account for how these funds are actually being utilized.”

“Again, we appreciate the BC’s response to our concerns and look forward to seeing many of you in Singapore.”

The ICA will still be filing comments as indicated above on the proposed contract renewal later today.

Lets be clear about what happened here.

Mr. Corwin was able to get the BC to drop this proposal basically on procedural grounds and saved domainers a huge headache, for now.

All domainers owe a big thanks to Phil and the ICA.…

I have for years been telling you even if you have no interest in the new gTLD’s you had to pay close attention to the process as whatever rules come out of that process will be attempted to be applied to all existing TLD’s including .com, .net and .org.

This is especially troubling because as you know the new gTLD process has not even been approved yet since the .Net contract is up for renewal, trademark groups are going to push for this new system to take away domains, be imposed on .net

And guess what is up for renewal next year?

Right the .Com contract with VeriSign.

If This proposal to apply the URS to .Net’s gets adopted then its almost a guarantee that it will be included in the .Com contract next year.

To refresh your memory the Uniform Rapid Suspension allows a trademark owner to file a short one page form, pay a fee ranging from $300-$500 and maybe wind up with the domain.

The URS has a shortened time frame for domain owners to respond, so short that if you go on vacation your likely to miss the time,  and parts of the proposal under consideration include one where a domain owner who loses a fixed number of URS in a certain time frame may be barred from even filing a defense to future URS filings.

The URS also limits the length of the response, and doesn’t allow for a three member panels.

We have all seen horrible one person UDRP decisions and with no option of getting a three member panel and a limited response, this should scare the crap out of any domain holder.

The maybe is in the above sentence because the final rules haven’t even been set for this new program as they are still under debate in the new gTLD program.

Originally the URS was a meant to suspend a domain, meaning the trademark holder wouldn’t wind up with the domain, its functionality would just seize.…

“I don’t see how new gTLDs can be approved in Singapore if the GAC isn’t satisfied that its concerns have been fully addressed”.

According to Mr. Corwin account of the speech:

“That statement, echoing to some extent a call issued yesterday by members of the House IP Subcommittee that ICANN should delay new gTLD program approval until after its June meeting in Singapore, certainly raises the stakes in the escalating game of policy “chicken” that seems to be developing between ICANN and the U.S.”

“In another portion of his prepared remarks, Secretary Strickling indicated that the Department of Commerce (DOC) was still looking at the concept of “unbundling’ the separate functions now performed by ICANN under the present IANA root server contract, due to expire in September; stated that the DOC lacked the statutory authority to transition the arrangement from a supply contract to a cooperative agreement as requested by ICANN .”

“On the subject of using contract renewal as leverage to get ICANN to commit to specific steps for accountability and transparency, stated “we are seriously considering that and will invite further comment”.

“So, while the US terminated direct oversight of ICANN in 2009, it is certainly not hesitant to use its residual influence over the organization.”

“The DOC sees the two biggest challenges for the upcoming Singapore meeting as improving accountability and transparency, to be measured by whether the Board will “embrace” key recommendations, and in addressing the collective concerns of governments”.

“The immediate governmental concern is new gTLDs and what the Guidebook development process means for the proper role of governments in ICANN. While commending ICANN for its recent responses to GAC concerns on new gTLDs, the Secretary said it’s unclear whether ICANN can complete the task in time for a scheduled June 20th vote on launching the program. One key remaining issue is closing the gap between the Board and GAC on the standard for a GAC consensus that a proposed new gTLD string should be rejected. As to how GAC satisfaction with the proposed Applicant Guidebook should be measured, he said the benchmark was resolving remaining differences in a manner that ensured collective governmental commitment to the ICANN model into the future.”

“Following his remarks, during a question-and-answer session, ICA asked the Secretary whether the Administration would take a firm position on whether the new gTLD vote should be delayed beyond Singapore.”

“While sidestepping a direct response, the Secretary reiterated that “premature approval” could negatively impact governmental buy-in to the ICANN model and bolster those who seek to transfer ICANN functions to the ITU or another UN-affiliated entity.”

“Responding to another question on whether the U.S.…