CORRECTED summary of public comments on domain tasting

[Liz Gasster <liz.gasster@xxxxxxxxx>]

Summary and analysis of public comments for:

Domain Name Tasting Motion


Comment period ended: 21 May 2008

Summary published 22 May 2008

Corrected summary published: 28 May 2008


BACKGROUND

The GNSO Council approved a 
motion<http://gnso.icann.org/issues/domain-tasting/dnt-motion-6mar08.shtml> on 
6 March 2008 to prohibit any gTLD operator that has implemented an "add grace 
period" (AGP) from providing a refund for any domain name deleted during the 
AGP that exceeds 10% of its net new registrations during that month (defined as 
total new registrations less domains deleted during the AGP) or fifty domain 
names, whichever is greater. An exemption could be granted based on 
extraordinary circumstances, as detailed in the motion, which is pending Board 
action.

A comprehensive summary of the events and deliberations leading up to the 
current GNSO Recommendation is contained in the GNSO Council Report to the 
ICANN Board-Recommendation for Domain 
Tasting<http://gnso.icann.org/issues/domain-tasting/domain-tasting-board-report-gnso-council-25apr08.pdf>
 prepared by ICANN Staff (25 April 2008).

The GNSO Council motion notes the precedents represented by (a) PIR, the .org 
registry operator, which amended its Registry 
Agreement<http://www.icann.org/tlds/agreements/org/registry-agmt-13feb07.htm> 
in February 2007 to charge an Excess Deletion Fee, and (b) NeuStar, the .biz 
registry operator, and Afilias, the .info registry operator, which are 
currently seeking amendments to their respective Registry Agreements to modify 
the AGP. The GNSO Council Recommendation to the Board proposes requiring of all 
gTLD registry operators conditions with respect to AGP limitations that are the 
same as the conditions that are specified by the .biz and .info amendments. The 
public comments on the pending NeuStar and Afilias proposals have been 
summarized<http://forum.icann.org/lists/neustar-agp-proposal/msg00005.html> by 
ICANN staff.

ICANN conducted a period of public 
comment<http://www.icann.org/public_comment/public-comment-200805.html#dt-motion-21may08>
 on the GNSO Council motion from 30 April 2008 to 21 May 2008. Eleven 
comments<http://forum.icann.org/lists/dt-motion-21may08> were received from ten 
sources, including the American Intellectual Property Law Association (AIPLA), 
Dell Inc., Yahoo! Inc., and seven individuals.

GENERAL COMMENTS

The comments mostly recapitulate issues concerning Domain Name Tasting and the 
Add Grace Period that have been raised by individuals and by GNSO 
constituencies over the past three years. During that time three principal 
approaches to dealing with Domain Name Tasting have been proposed, including 
the approach proposed by the GNSO Council in its current motion. Most of the 
comments on the motion focus on arguments for or against one of these three 
approaches.

1. Eliminate the Add Grace Period entirely. Comments from 
JW<http://forum.icann.org/lists/dt-motion-21may08/msg00001.html>, 
AIPLA<http://forum.icann.org/lists/dt-motion-21may08/msg00010.html>, and Dell 
Inc.<http://forum.icann.org/lists/dt-motion-21may08/msg00011.html> support the 
elimination of the AGP, rather than changes to the way in which it is 
implemented. The AIPLA comment invokes and reiterates the Intellectual Property 
Constituency (IPC) Statement on Domain Name Tasting submitted to the GNSO 
Council on 28 March 2008. While preferring elimination of the AGP, the Dell 
Inc. comment also supports the GNSO Council's recommended approach as "a good 
first step" toward curbing the practice of Domain Name Tasting, and concurs 
with the AIPLA's invocation of the IPC Statement recommendations for changes to 
the GNSO Council proposal.

2. Discontinue the registrar-level transaction fee exemption for AGP 
registrations. The comment from the 
AIPLA<http://forum.icann.org/lists/dt-motion-21may08/msg00010.html> also 
supports the imposition of the (currently US$0.20) transaction fee for all 
domain name registrations, including those cancelled during the AGP. A comment 
from Matthew 
Saunier<http://forum.icann.org/lists/dt-motion-21may08/msg00002.html> suggests 
a substantially higher transaction fee (US$5.00).

3. Require registries to impose a penalty for "excess" AGP deletions. This is 
the remedy proposed by the GNSO Council. Comments from Yahoo! 
Inc.<http://forum.icann.org/lists/dt-motion-21may08/msg00005.html>, Eberhard 
Blocher<http://forum.icann.org/lists/dt-motion-21may08/msg00006.html>, and 
Cyril Chua<http://forum.icann.org/lists/dt-motion-21may08/msg00007.html> 
straightforwardly support the GNSO Council motion. Blocher's comment also 
suggests that a higher penalty threshold-20% or 30%, rather than the proposed 
10%-would be "more practical" while still "achiev[ing] the same aim of 
discouraging abusive domain tasting practices." A comment from Dominik 
Filipp<http://forum.icann.org/lists/dt-motion-21may08/msg00008.html> takes the 
GNSO Council proposal as a starting point and analyzes four of its features in 
detail: (1) the 10% threshold, arguing that it is too high; (2) the term "net 
new registrations," arguing that it is not well-defined and should be 
explicitly defined to include only genuinely new registrations (not 
registrations resulting from inter-registrar transfers); (3) the term 
"extraordinary circumstances," arguing that it is not well-defined and can 
easily be manipulated by registrars that run large numbers of "phantom" 
registrars; and (4) GNSO oversight, arguing that the effectiveness of the 
proposed remedy will be limited unless it specifies in much greater detail the 
policies and mechanisms that will govern oversight and enforcement of the AGP 
provisions. See the "Analysis" section below for staff analysis of some of 
these points.

A further comment from 
JW<http://forum.icann.org/lists/dt-motion-21may08/msg00003.html> proposes a 
different approach to deterring Domain Name Tasting which has not been 
discussed within the GNSO.

A comment from Jon A. 
Pastor<http://forum.icann.org/lists/dt-motion-21may08/msg00004.html> deals with 
domain name front-running, which although related to Domain Name Tasting is 
off-topic with respect to the GNSO Council motion.

A comment from Jay 
Deutschman<http://forum.icann.org/lists/dt-motion-21may08/msg00009.html> simply 
states his opposition to Domain Name Tasting.

ANALYSIS

1. Scope of the GNSO Council motion. It is important to note that the GNSO 
Council motion, although its title refers to "Domain Name Tasting," deals 
specifically with a proposed change to the Add Grace Period; it does not deal 
with other methods of deterring Domain Name Tasting, nor with the legitimacy of 
the practice itself.

2. Modifying vs. eliminating the AGP. The registrar constituency points to many 
useful purposes of the AGP such as fraud protection and certain consumer 
benefits that would no longer be available if the AGP were eliminated.  These 
uses are detailed in Section 4.4 of the Outcomes Report of the GNSO Ad Hoc 
Group on Domain Name 
Tasting<http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-final.pdf>:

1)   Correcting typographical errors made by the registrant;
2)   Using a cart "hold" system to provide access to names;
3)   Mitigating fraud impacts;
4)   Monitoring, testing, and development of provisioning, production, and/or 
merchant gateway systems; and
5)   Addressing situations of "buyer's remorse" on behalf of the registrant.

Some constituencies would have preferred stronger steps, such as complete 
elimination of the AGP, but agreed to accept this alternative as an initial 
policy step to measure how effective it is in curbing domain tasting.  Many in 
the registrar and registry constituencies are opposed to elimination of the AGP 
so this option is viewed by some as a middle ground that will hopefully still 
have a measurable impact.

3. The 10% threshold. The GNSO Council proposes to penalize the registration 
and subsequent cancellation of names within the AGP beyond a specific monthly 
threshold for each Registrar, specified as either 10% of the "net new 
registrations" processed by a given Registry for that Registrar or 50 names, 
whichever is the lesser amount. The 10% threshold was determined based on the 
experience of PIR with the "excess delete fee" provision introduced into .ORG 
in 2007 (which sets a 10% threshold) and on PIR's analysis, prior to 
introducing the "excess delete fee" provision, of AGP data from several large 
registrars. Analysis of those data showed that over a two-month period the 
average AGP delete volume peaked at 6-7% of total registration volume, and that 
the volume on any given day was almost always well below the peak value. 
Consultation with registrars suggested that a 10% threshold would provide an 
adequate "cushion" while acting as an effective deterrent to Domain Name 
Tasting activity, and PIR's experience with the "excess delete fee" provision 
over the past 12 months has been consistent with that analysis.

Dominik Filipp<http://forum.icann.org/lists/dt-motion-21may08/msg00008.html>'s 
comment argues that the 10% figure is not supported by empirical evidence and 
that it gives large registrars too much leeway for AGP abuse.

Filipp's comment also presents a strong argument for defining "net new 
registrations" to exclude registrations that arise from inter-registrar 
transfers, supporting the argument with a convincing example of how the AGP 
limit could easily be defeated by transfers among phantom registrars controlled 
by a single actual registrar.

NEXT STEPS

This summary of comments will be posted on the ICANN Public Comment page and
provided to the ICANN Board as part of its consideration of the GNSO Council 
Recommendation concerning Domain Name Tasting. The Board is scheduled to
discuss the GNSO Council Recommendation during the 29 May 2008 Special Meeting 
of
the ICANN Board.

CONTRIBUTORS

American Intellectual Property Law Association (Michael K. Kirk)
Dell Inc. (Allison McDade)
Yahoo! Inc. (J. Scott Evans)
Jay Deutschman
Dominik Filipp
cyrilchua
Eberhard Blocher
Jon A. Pastor
Matthew Saunier
JW