In the new Guidebook issued by ICANN yesterday, (pdf) if you’re a domain holder that loses 3 or more UDRP (yes they are so fair and well grounded), you will be in the same class as Convicted Murderers, Rapists and child molesters.
Yes it would be a bad joke but its true.
Under the new ICANN guidebook (pages 1-17/1-19) if you lose 3 UDRP’s you’re disqualified from being a “major shareholder” of a new gTLD registry, or being a partner, officer, director, of a new gTLD registry.
It doesn’t matter how many domains you own.
The 3 strikes and your out rule applies to those that own 3 domains as well as those that own 3,000,000 domains.
3 is the magic number, and the number is 3. (I sound so Monty Python).
However, the good news in the guidebook is for Terrorists, which were also disqualified in the previous Guidebook, but are now perfectly fine as pointed out by JihadWatch.org (yes its a real site and link).
Of course we have written over the years about horrible UDRP decisions, and those even reversed on appeal (This is a trick question since a UDRP cannot be reversed upon appeal, as there is no appeal from a UDRP).
Here is how the guidebook reads:
“Applicants with confirmed convictions of the types listed in (a) – (k) below will be automatically disqualified from the program.
Circumstances where ICANN may deny an otherwise qualified application include, but are not limited to instances where the applicant, or any individual named in the application, partner, officer, director, or manager, or any person or entity owning (or beneficially owning) fifteen percent or more of the applicant:
a. within the past ten years, has been convicted of a felony, or of a misdemeanor related to financial or corporate governance activities, or has been judged by a court to have committed fraud or breach of fiduciary duty, or has been the subject of a judicial determination that ICANN deemed as the substantive equivalent of any of these;
b. within the past ten years, has been disciplined by any government or industry regulatory body for conduct involving dishonesty or misuse of the funds of others;
c. within the past ten years has been convicted of any willful tax-related fraud or willful evasion of tax liabilities;
d. within the past ten years has been convicted of perjury, forswearing, failing to cooperate with a law enforcement investigation, or making false statements to a law enforcement agency or representative;
e. has ever been convicted of any crime involving the use of a weapon, force, or the threat of force;
f. has ever been convicted of any violent or sexual offense victimizing children, the elderly, or individuals with disabilities;
g. has been convicted of aiding, abetting, facilitating, enabling, conspiring to commit, or failing to report any of the listed crimes within the respective time frames specified above;
h. has entered a guilty plea as part of a plea agreement or has a court case in any jurisdiction with a disposition of Adjudicated Guilty or Adjudication Withheld (or regional equivalents) for any of the listed crimes within the respective time frames listed above;
j. fails to provide ICANN with the identifying information necessary to confirm identity at the time of application or to resolve questions of identity during the background screening process;
k. has been involved in of a pattern of decisions indicating that the applicant or individual named in the application was engaged in cybersquatting as defined in the UDRP, ACPA, or other equivalent legislation. Three or more such decisions with one occurring in the last four years will generally be considered to constitute a pattern.
So we are clear, those barred from ownership of a new gTLD, or being a partner, officer, director of a new gTLD registry are those convicted of such crimes as rape, murder, armed robberies and child molesting in the past 10 years or
those who lose 3 UDRP’s in their lifetime (1 in the last 4 years)
So if you knock off banks on or 7-11’s on a regular basis your are out.
If you stick gun in people’s faces and steal their property your out.
If you like Madoff steal hundreds of millions from widows, orphans, and charities your out.
Oh wait
You would still have to be charged with a crime, go to a trial and get convicted by a jury (or plead guilty) and you would only be disqualified for 10 years.
Lose 3 UDRP’s sometime in your life and your out for at least 4 years.
For example one might own a domain of a generic term like Haywood.com (a city in California) or smoothmove.com, who gets a brain dead panelist which gives the domain away based on a trademark registered somewhere in the world or even finds that the complainant has a “common law” trademark on a term no one has ever heard of, or comes up with some other illogical reason to hand over a domain.
Guess its that old saying
One bad UDRP decision shame on you.
Two bad UDRP decisions shame on them.
Three bad decisions (even if you file in federal court and win all the cases) in your lifetime, and you’re in the same boat as a convicted murderer, rapist or child molester.
Welcome to the extremely fair and balanced world of ICANN.
That’s just 3 pages of the 360 page document.
More to come.
By the way if you would like to comment to ICANN on this or any other part of the Guidebook the comment period is opened less than a month and closes on December 10th.
is icaan gonna have their own flag and pledge of allegiance?
“is icaan gonna have their own flag and pledge of allegiance?”
===
You Bet.CHA!!!
Signed Sarah
Sarah for President of the World
@MHB
Not to worry!!!
You can be born in Kenya and still be President of the United States
Just run an ad in Hawaii
Print a fake birth certificate
Use several Social Security Numbers
Have all of your school records removed or locked up
Become a lawyer and get dis-barred
…
BO knows DNS
laws are always made for big companies
The CEO of ICANN is NOT even an employee.
Neither was the previous CEO.
According to one ICANN CEO in U.S. Congressional testimony.
“The Corporation recommended that.”
The compensation is laundered to an off-shore ?(for-profit)? company.
BO
I don’t want to be President, how I might want to own one of the new gTLD’s and
@MHB
“I don’t want to be President, how I might want to own one of the new gTLD’s and”
ICANN requires [A Command of the English Language].
I wonder if any of the companies who commented on the STI report will be able to own a TLD:
http://forum.icann.org/lists/sti-report-2009/msg00048.html
(1) Telstra — fined $101,200 for harassing Australians on the Do Not Call register
(2) Costco — fined $75,000 for not closing Hawaii cesspools
(3) Publix — fined $500,000 for violating child labor laws
(4) Yahoo — fined for unwillingness to cooperate in a cyber-criminal investigation
(5) Time Warner — fined $300 million to settle securities-fraud charges
(6) Coca-Cola — anti-monopoly fine of $68 million in Mexico
(7) UBS — fined $780 million in tax evasion scandal
(8) Nordstrom — fined for failing to report that apparel contained drawstrings (that might post a strangulation hazard to children)
(9) Disney (member of Coalition for Online Accountability) — fined for violating children’s TV advertising rules
(10) Unilever (member of AIM – European Brands Association) — fined for price-fixing in Germany
Example “f” is kind of strange, if you think about it: “has ever been convicted of any violent or sexual offense victimizing children, the elderly, or individuals with disabilities;”
Why do they have the phrase “victimizing children, the elderly, or individuals with disabilities” in the sentence? i.e. is it ok to rape 30 year old women who are not disabled? It seems that one could be found guilty of beastiality, and that would be fine to be a TLD owner, as the victim would not be a child, elderly, or disabled. Why is ICANN protecting dog-f*ckers?
With all the special interests lobbying ICANN, I’m sure the language was very carefully crafted, so that certain illicit acts would not be caught by the “rules.” e.g. notice there’s nothing about drug charges (Marijuana, etc.). Why is ICANN going out of their way to allow druggies to own TLDs??
George
Interesting but I think this part is crazy
“Applicants with confirmed convictions of the types listed in (a) – (k) below will be automatically disqualified from the program.
“”k. has been involved in of a pattern of decisions indicating that the applicant or individual named in the application was engaged in cybersquatting as defined in the UDRP, ACPA, or other equivalent legislation. Three or more such decisions with one occurring in the last four years will generally be considered to constitute a pattern”
They use the words “convicted of”
Convicted of what?
The UDRP police
Doesn’t convicted mean having a court proceeding, right to call witnesses and a jury of your peers?
Doesn’t convicted mean you have a right to appeal and if you win on appeal your record no longer shows you as being convicted?
Michael: Yes, you’re right in showing the absurdity of how they’ve framed the language. These are the same people that had the loophole in the language for the .biz/info/org tiered pricing issue. They simply don’t know how to properly draft contracts that are bulletproof.
I used the beastiality and drug crimes examples just to show how full of holes these documents are. Note the very first sentence say:
“Circumstances where ICANN may deny an otherwise qualified application include, but are not limited to”
So, the important words are “but are not limited to.” This means that ICANN is going to be making subjective and discretionary judgment calls, on a basis that is NOT written down. Where is the fairness in that? Where is the predictability in that? Maybe they’ll “find a reason” because they just don’t like you. Or maybe they won’t give a reason at all. Or maybe there are two competing applications, one from a “buddy” and one from an “enemy”, and they’ll find a reason to discriminate against the “enemy.”
ICANN needs to learn how to write contracts without loopholes. This goes way back to the “presumptive renewal” they gave to VeriSign in the 1990s. Their contracts have been full of similar mistakes. Everytime those “mistakes” get “fixed”, the wallets of domain registrants like you and me tend to get a little bit lighter!
To give another example, people fighting for democracy in China, Cuba, Iran or other oppressive regimes are likely to have violated many laws of their respective countries. If they escaped to the US or Canada, though, they would not qualify as an applicant.
TheDomains.COM
http://domain.opendns.com/thedomains.com
Reputation:
Parked?
Porn?
Church
This is the problem with OpenDNS, you have persons unknown that place labels on sites that OpenDNS blindly follows, without recrimination or responsibility
What about registrars that lost domains through UDRP?
I assume there are a number of cases.
What about NameKing?
Didn’t they lose some UDRP cases?
Does that elliminate DomainSponsor/Moniker/Oversee?
I guess NameMedia/BuyDomains/Rarenames could not apply for
a new TLD?
As Michael pointed out, just by the quantity of domains,
large portfolio owners are going to have some UDRP losses.
Do a search in Google for: standard tactics respondent
and you’ll find several UDRP cases lost by that company, which as everyone knows was simply a special purpose company created to hold expired GoDaddy domains.
So, would GoDaddy (or freshly minted shell companies that they effective control) be disqualified from being an applicant, based on the experience with “Standard Tactics, LLC”? If not, why not?
it’s the power of money
I just submitted a new comment to ICANN re: the “Standard Tactics LLC” loophole, see:
http://forum.icann.org/lists/5gtld-guide/msg00004.html
If that doesn’t catch the attention of the IP lobby, INTA, etc., I don’t know what will. They’ll be howling that such a huge loophole was allowed to make it into what ICANN is proposing to be the “final” guidebook.
Classic case of real “serial cybersquatters” making life harder for everyone else who tries to run an above-board operation.
I make a very good living from the internet and have a felony conviction from years ago (involving the use of a weapon, too!)
How does this relate to my owning and operating a TLD?
Serious question, albeit hypothetical.
@Anon
“How does this relate to my owning and operating a TLD?”
Come on Anon, where are your Birkenstock sandals ?
Get your beard-on and get your geek-on.
Humans do not “own” TLDs.
[THE Community] provides all of the care and feeding of TLDs.
This is not about money. Pay no attention to that million dollar non-profit salary.
Pay no attention to that $50,000,000 NSF Grant to study this and secure it.
Pay no attention to all of the non-stop paid trips from one Ritz-Carlton suite to another. Stop by San Francisco Dec 5 to 8. Buy everyone a drink.
“in the application was engaged in cybersquatting as defined in the UDRP, ACPA, or other equivalent legislation”
————
Stupid ICANN! They’re getting too big for their own good. They need to be dismantled as they are doing what it takes to keep their perks and jobs. Classic case of bureaucracy. They use the word cybersquating as if the only way to lose a name in a UDRP is if you register verizn.com. If a US Federal Court found that 3 times, I could agree, but we’ve seen the dumbest cases coming out of their arbitrators.
@Einstein
“They’re getting too big for their own good. ”
===
It really is a fascinating group to study. They have no limit to their egos and self-importance. Last week in China, they made total fools of themselves.
The highway tot hell again with good intentions fertilizing all the pretty flowers along the way.
Financial interests will always step up and take care of our interests as they have always done in the past (Enron, Halliburton, Goldman Sachs, ICANN).
Perhaps having some governmental body for ICANN to bow down to is not such a bad thing (.XXX)….
Bo, why would you post such untrue nonsense about our elected president and commander in chief here? It does not belong here, and just shows your ignorance. The first dog does not like his name being used in such tired old, disproven many times over propaganda efforts, I’m sure.
Back to the story at hand…seems kind of unfair and not quite up to our burden of proof ideals in our justice system.
While the proposed treatment of 3-time UDRP losers is unacceptable — given that it fails to address the current lack of consistency in UDRP decisions, take into account the total size of a registrant’s portfolio, and ignores decisions that are overturned on appeal to a national court – any reading that ICANN has gone “soft” on terrorists is absolutely wrong.
In fact, the new Guidebook contains a provision (at page 1-22) that specifically references U.S. anti-terrorism laws and regulations and notes ICANN’s need to comply with them as a California non-profit corporation subject to U.S. jurisdiction, regardless of the termination of direct U.S. oversight:
“Legal Compliance — ICANN must comply with all U.S. laws,
rules, and regulations. One such set of regulations is the
economic and trade sanctions program administered by
the Office of Foreign Assets Control (“OFAC”) of the U.S.
Department of the Treasury. These sanctions have been
imposed on certain countries, as well as individuals and
entities that appear on OFAC’s List of Specially Designated
Nationals and Blocked Persons (the “SDN List”). ICANN is
prohibited from providing most goods or services to
residents of sanctioned countries or their governmental
entities or to SDNs without an applicable U.S. government
authorization or exemption. ICANN generally will not seek
a license to provide goods or services to an individual or
entity on the SDN List. In the past, when ICANN has been
requested to provide services to individuals or entities that
are not SDNs, but are residents of sanctioned countries,
ICANN has sought and been granted licenses as required.
In any given case, however, OFAC could decide not to
issue a requested license.”
In short, ICANN has not dropped any reference to terrorism but has specifically referenced U.S. law and regulation designed to block all financial transactions and other dealings with terrorists and their organizations. This would include not just the Treasury list but that maintained by the State Department as well.
Those who complained that DAGv4 contained no definition of who engages in “terrorism” now have their answer from ICANN — the starting point is the lists maintained by the U.S. government. ICANN can add to them but it cannot subtract or ignore them. Penalties for noncompliance with U.S. anti-terrorism laws are severe criminal and civil penalties.
Phil
This list “Office of Foreign Assets Control (“OFAC”)”
Isn’t that the same list that some registrars including Enom seized “cuban” domains last year, even of non-US citizens?
http://www.thedomains.com/2008/03/04/enom-takes-away-cuba-domain-names-what-it-means-to-you-in-light-of-the-snowe-bill/
Bottom line for me is that the background check for terrorist was in the last guidebook.
At the ICANN meeting in Brussels, which we both attended, several people all with distinct middle eastern accents got up and objected to that provision and now its gone.
You got up and objected to the treatment of domainers and its still in the book
Of course in the previous version they did not define what a disqualifying cybersquatter was, now we know its three losses in your lifetime.
I think the terrorists won this round
Some people think that anyone who CENSORS a blog is also: Not Fit to Run a TLD Registry
Can you imagine their arbitrary CENSORSHIP ?
@Mike
I’m not happy with the way they largely ignored ICA’s oral and written comments regarding UDRP losses, and we will have at it again in Cartagena. It ain’t over ’til it’s over.
But I have to respectfully disagree regarding “terrorism”. ICANN may have dropped the word but it has noted its need to comply with all US laws — and it is no coincidence that the one law they cited is the one that prevents all financial dealings with terrorist organizations and individuals as they are defined by the U.S. government.
Those who complained in Brussels about who would decide who is a “terrorist” and who is a “freedom fighter” for gTLD application purposes now have their answer — the U.S. government is the decider.
“it has noted its need to comply with all US laws”
===
Does that include U.S. Federal Trade Commission (FTC) laws for Selling Franchises ?
Franchise Test:
1. Franchisee pays a fee to Franchisor
2. Franchisee uses the BRAND/logo of the Franchisor (see ICANN Logo)
3. Franchisor has controls over Franchisee
U.S. Federal Trade Commission (FTC) laws for Selling Franchises ?
Note: Apparently, a Loop-Hole is to couch ventures as Proof-of-Concept Market Trials (Sound Familiar ???)
Once the Proof-of-Concept Market Trials play out, then a company has to decide to proceed with their full-blown (FTC Approved) Franchise Program, or end the adventures.
The State of California also has Business Opportunity Laws.
It has never been clear how ICANN avoids California laws and U.S. Federal laws. One explanation is that the Chairman of ICANN, Peter Dengate-Thrush speaking in California this year said laws are now “International” / Universal / Etc. New Zealand has legalized .PROstitution. Does California ?
For me, this is just an effort on the part of ICANN to police the domain names and the internet at large. Huge sanctions would mean people will try to think several times before doing something that they know could lead them to trouble.