Phil Corwin has just published an update to this post he published the other day on the ICA website entitled ICANN is MIA on XYZ.
As we told you on Sunday, some including thedomains.com felt that the portion of Mr. Corwin’s post that seemed to be a personal attack on Mr. Negari was inappropriate and out of line.
Mr. Corwin has now addressed this, with a statement posted on the ICA Website in which he apologize to Mr. Negari entitled “Personal Clarification Regarding .XYZ Article”
Here is the new post:
Several days ago I posted an article – “ICANN is Missing in Action on .XYZ” – expressing my personal views regarding Network Solutions’ involuntary opt-out registration of .XYZ domains for its existing customers. It was posted, as many of my opinion pieces are, at both the website of the Internet Commerce Association, which I have served as Counsel since its founding in 2006, and at CircleID.com; the two websites attract different audiences. The article was not requested by the ICA and does not represent any official policy of the ICA in regard to such involuntary domain registrations. The ICA has not yet adopted any position on this practice.
The article questioned whether this opt-out practice violated registrant rights and was in compliance with the Registrar Accreditation Agreement (RAA) that all registrars enter into with ICANN. A particular concern was that, unless ICANN stepped in, this practice could spread to other new gTLDs, adversely affecting registrants while undermining the integrity of the new gTLD program and raising additional questions about ICANN’s contractual compliance enforcement.
Toward the end of the article I referred to a 2011 Lanham Act litigation filed by Facebook against the CEO of the .XYZ registry, Daniel Negari, and another company he headed, Cyber2media. I noted that the case had been dismissed, and stated “Of course allegations are not proof of guilt”. I also tried to give even-handed treatment earlier in the article on the question of whether .XYZ had entered into any arrangement with Network Solutions in regard to the opt-out program by reprinting the relevant text of an interview he had engaged in on that question.
I now regard my referencing of the Lanham Act litigation as a mistake in judgment.
First, it was extraneous to the main focus of the article and has generated some unintended controversy that has diluted focus on the important policy question of whether opt-out domain registrations are an ethical practice consistent with RAA provisions that protect registrants and, if not, what ICANN should be doing in reaction.
More importantly, it appears to have created the misimpression that I believe that the award of the .XYZ registry contract to Mr. Negari and his registry enterprise was questionable. I am not aware of any facts that would lead me to such a conclusion and to the extent that my unartful words may have created such an incorrect impression I offer my sincere apology to him, his colleagues and his enterprise.
That section of the article also stated that it “would be useful to know” whether the application for .XYZ had disclosed the litigation. I have since learned through a third party that it was disclosed and considered by ICANN. Such information is redacted and not made part of the publicly available portion of any gTLD application.
There also seems to be a misperception that I may have been advocating amendment of the gTLD program Applicant Guidebook to create review of dismissed or settled trademark legal actions. In fact such a provision is already part of the program’s Evaluation Questions Criteria (see http://newgtlds.icann.org/en/applicants/agb/evaluation-questions-criteria-04jun12-en.pdf).
At Section 11(g) of the Applicant Background portion of that document this Question appears:
(g) Disclose whether the applicant or any of the individuals named above has been involved in any administrative or other legal proceeding in which allegations of intellectual property infringement relating to registration or use of a domain name have been made. Provide an explanation related to each such instance. (Emphasis added)
This Note appears next to that Question:
ICANN may deny an otherwise qualified application based on the background screening process. See section 1.2.1 of the guidebook for details.
That provision is the very reason why a dismissed Lanham Act lawsuit would need to be disclosed by a gTLD applicant. It is in addition to preceding Section 11(f), the inflexible “three strikes” UDRP/ACPA disqualification clause against which I lobbied at considerable length; while that effort was unsuccessful, a similar disqualifier was added for those cited for repeated Reverse Domain Name Hijacking. ICANN has stated that it intends to conduct a thorough review of all provisions of the Applicant Guidebook prior to any second round of new gTLDs, and that will provide an opportunity to revisit all these provisions.
I hope that this clarification facilitates a return to consideration of the opt-out registration issue and an appropriate ICANN response. I wish Mr. Negari and his marketing team well in their efforts to promote affirmative domain registrations in the .XYZ registry.”””
Something doesn’t feel right about this.
There is long way from the lawsuit mention to this:
“I wish Mr. Negari and his marketing team well in their efforts to promote affirmative domain registrations in the .XYZ registry.”
Affirmative domain registrations – would they be the opposite of opt-out registrations? If so, it was a rather elegant Parthian shot.
Yes, but nevertheless it seems like he was pressed to say that.
Something doesn’t feel right about this.
LOL
Put on your Clown shirts and bring out the BULL Horn
We all get carried away sometimes. I acted like an ass about it as well.
Let’s hope everyone’s focus gets back on the ball: the robo-registrations at NetSol. Otherwise, this parody prediction might become reality through freebies: http://domaingang.com/domain-news/dot-xyz-surpasses-500-million-registrations-day-one/
Agreed
Where I disagree, and this is not specific to Phil Corwin’s article but applies to much of the discussion of this generally, is that it forgets that the validity of “opt out” is a question of Virginia law, at least for NetSol customers. It’s not my issue so I didn’t spend much time on this, but my cursory review of Virginia law found two cases suggesting that “opt out” was valid for creating assent when you already had a contractual relationship. I also fail to see the harm to a registrant in giving it a free domain name, which is why I questioned the role of the ICA on this.
In my view, the uproar seems to be because certain promotions and launch strategies complicate the new gTLD “horse race” reporting, which is really only a small aspect of the new gTLD story. Who sells how many in what time frame is just one data point in whether a TLD ultimately will be successful in the long term. Sure, every registry would like to be the registration leader out of the gate, but I think most of the registries are focused on the long term view. Coming from a registry perspective, I’m an interested party here, of course, but I think we should give registries some room to build their businesses, without thinking that everything they do that is different from what has happened in the past must be wrong.
” I also fail to see the harm to a registrant in giving it a free domain name, which is why I questioned the role of the ICA on this. ”
No harm, aside for numerous issues, and I will mention a couple: Domainers selling domains based on the supposed performance of the gTLD, or involving the unwilling registrants of these domains in a UDRP or other legal complications.
Free is OK when it’s simply offered – then I have an actionable choice: If I want a free .Berlin it’s up to me to go to the registrar and get it, instead of receiving it magically.
The involvement of ICA is an entry point, leading to getting a response from ICANN.
That didn’t take long once all the lawyers realized it would be there names on the other side of the 15 minute billing increments 🙂
@Bret
I have mentioned many reasons of how this is morally wrong and illegal.
Here is another one:
What happens if the .com is abusing a trademark.
So will the .xyz.
So a UDRP will involve 2 domains instead of one and will cost more to the trademark holder.
Or the trademark holder will have to file a URS.
And in case of a lawsuit then the domain owner may face a penalty on 2 domains instead of 1.
You might say they deserve it but why should they pay double because Network Solutions wanted it?
This is a bad situation for everybody instead of Network Solutions that are collecting the .xyz money.
And they will have to face ICANN eventually.
.XYZ is losing millions as it is and won’t come out of the hole this century so it is bad for them too even though they orchestrated it. Good luck with this mess.
Kudos to Mr. Negari for jumping on his opportunity to play the victim after Phil Corwin’s comments. It’s like watching a soccer player who trips and feigns a broken leg. What an opportunity to distract everybody and generate sympathy! Daniel Negari has a real talent for duplicity. Possibly a career in politics lies ahead?
Quite apart from the possible harm to the “registrants” of the forced freebies, let’s not forget the real harm done to real registrants of .XYZ.
Many people — especially new domainers, who tend to be naïve and vulnerable — have paid money to Mr. Negari’s company on the basis of (what appear to be) dishonest claims about the success of his product. There’s little dispute that Daniel Negari knew these claims to be false; indeed, he almost certainly arranged for the fabricated data.
In other words, the centerpiece of his sales pitch would be a demonstrable LIE, correct? What do customers do when company marketing can be proven to spread misinformation by design? They demand a refund — possibly an investigation into the business and penalties imposed to discourage deceit.
We’re not talking about marketing spin, which would emphasize the purported future benefits of .XYZ domains.
No, from an ethical standpoint, this is no different from falsifying a medical study for pharmaceuticals, in my opinion, except that the harm is financial rather than physical. But damage and deceit are damage and deceit in any form.
.XYZ based its sales pitch on registration numbers. A new drug points to numbers too. If either of these can be shown to have (1) falsified those numbers and (2) continued to point to them as if they were real for the sake of sales, then that’s a serious ethical issue. Maybe a legal issue.
You can sell a beat up car pretending to like it or emphasizing its good points. That’s normal.
You CANNOT sell a car by tinkering with the odometer so that your buyer sees 10,000 miles traveled instead of the real 200,000 miles. If you sell a product by boasting about important information you yourself have falsified, then you deserve to be sued or even barred from doing business in the future.
I, for one, do not “wish Mr. Negari and his marketing team well in their efforts to promote affirmative domain registrations in the .XYZ registry.” At this point, the company deserves to fail. Self-respecting employees should choose a more ethical employer and discontinue helping someone who apparently lies to his customers.
Don’t worry Joseph.
Negari has already failed. They keep spending and even if they stop their revenue will never be enough to get them out of the hole they are in. I am actually glad about this NetSol deal they did. They will go down with it.
I am accepting bets on what registry will take over .xyz after it fails in a year or 2.
I think that there are a lot of registries that are going to fail….like 98%. I want to applaud Mike for articulating what has happened in this particular case. His efforts here are legendary!
I’m not wanting to steal his thunder but I’ve written many blogs on the gTLDs and why I think that they will fail and then consolidate. You can check the latest out here…. http://whizzbangsblog.com/easyblog/recent-blogs/entry/why-i-think-most-gtlds-will-fail#comment-275
Mike, keep up the incredible work that you do for the entire industry!
You mean, you trolled many blogs using Mike’s alias?
Never mind, you *are* Mike Gilmour referring to Mike Berkens. Gotcha.
On the subject of gTLD fail, there is an equal army professing why the naysayers are wrong. Plus those of you that don’t see it, alienate half the domain industry with your negativity.
I’m actually quite positive about a number of the new gTLDs. What I’m not positive about is what will be happening in the short-term. It’s not an issue of being negative….it’s an issue of trying to play out what will happen and then look for the opportunities.
Michael
Will do but I’m not that young and this new gTLD stuff is definitely not going to increase my life span
Acro
Think I’m on the 6th year of talking about these new G’s
Still have no idea how it will all work out