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  • .Music, .Song, and .Tunes new top level domain name objections against Amazon.com dismissed

    1. BY - Dec 09, 2013
    2. Policy & Law
    3. 4 Comments

    Amazon.com prevails in dispute over three music related top level domain names.

    An International Chamber of Commerce panelist has ruled against the American Association of Independent Music’s (A2IM) community objections to Amazon.com’s bids to run the .music, .song, and .tunes domain names.

    A2IM is backing a rival bid for .music by Constantinos Roussos.

    A2IM filed objections against seven rival applications for .music. Each case will certainly be different. For example, the instant one included discussion of Amazon.com’s plans to keep the domains closed. But if the panelists hearing the other .music cases have the same interpretations as the panelist in this case, then it’s likely that all of the .music objections will fail.

    Panelist Francisco Orrego Vicuña noted that the community A2IM seeks to represent is overly broad, containing billions of people. Even if you believe that the community was clearly delineated, A2IM would fail to actually represent the community, Vicuña’s determined.

    “The very existence of a clearly delineated community is doubtful as any meaningful formal boundaries will be too broad and difficult to identify,” he wrote.

    He also wrote that the objector provided “weak” evidence of an ongoing relationship with a clearly delineated community.

    The level of global recognition of the Objector is in the Expert’s view very limited. While there is reference to some associations of an international scope this does not mean that it is the Objector that has qualified as a globally recognized institution. In fact, as the Applicant has noted, the Objector would be rather related to the “American” music industry and not to a global level of recognition.

    Vicuña also ruled that A2IM had not proven a likelihood of damages to the community it purports to represent.

    A2IM claimed that Amazon.com could abuse its market position by controlling the domain names. But Vicuña pointed out that, should there by market power abuse, then both the objector and other parties could certainly bring grievances to the appropriate government authorities.

    Regardless of whether you believe the panelist got the various points of the case correct, it’s fairly easy to argue that this decision contradicts the decision in the .sport case. It would seem both .music and .sport are rather broad, representing millions of people. Now separate panelists have ruled that one is a clearly delineated community while the other is not.

4 Comments
  • “The Internet is dead.”

  • Andrew,

    Interesting take.

    Here is the real meat for your article from the source. I urge you to look at the big picture and the real issues at hand besides the unacceptable selection of pseudo-”music-Expert by the ICC, as revealed in this case (even though I do agree with you the Expert selections and Determinations have been out of control and like the wild wild west).

    In this case, it was clear. The Panelist was not a “music” Expert and the ICC and ICANN both failed their own procedures to select an Expert in the topic of interest. We conveyed this message to ICANN when the selection was made and publicly but nothing was done.

    The Expert ignored some rather glaring procedural issues relating to material changes as well as failed to follow procedure to adequately address certain aspects of this Determination (which he conveniently omitted) and Additional Submissions:

    1) No mention of Amazon’s position change from exclusive to non-exclusive per their GAC advice response and why the Panelist failed to address that despite our correspondence with the ICC, ICANN and the Panelist. How is Amazon allowed to changed its position DURING and AFTER a proceeding and that be acceptable? The ICC conveyed they would send those concerns to ICANN. What would happen if this was a real court? Guilty right? Right.

    2) The fact that the Panelist rejected our Additional Submission which covered the Standing issue entirely. For example, the Panelist conveniently completed IGNORED the the main Objector’s Associate membership ENTIRELY and ONLY considered its U.S Label members. Associate members included iTunes (60+% of the music market) and the international digital music distributors that are responsible for Amazon’s majority of its digital music operations – Refer to Amazon page http://www.amazon.com/gp/help/customer/display.html?nodeId=14061761 – Nearly all the international digital music distributors to Amazon are Objector members (!).

    Others Associate members included music leaders such as Spotify, Pandora and Rdio. The list of the international scope of the Objectors represent a significant portion of the community. Why did he not address the Associate members and only rely on the U.S Label Members? How is the “level of global recognition limited.” The top two global best selling artists of the last year, Adele and Taylor swift are represented by Objector’s Labels but the level of global recognition is limited? Also the Expert ignored the Related Objector Entities and again gave no mention to them even though they showed Objection had Standing.

    We note the other .MUSIC case Panelist accepted those Additional Submissions on the Standing issue. Why did one Panelist accept them and one reject them? Why did this particular Panelist reject the Additional Submission on the standing issue while revealing he did not need additional evidence to make his Determination while disingenuously slapping the community in the face that we did not provide enough evidence?

    3) In June we had correspondence with ICANN where we revealed our concerns about the selection of the Panelist that he is not a “music” Expert and that since he does not have experience with “music” this is a flawed procedure that violates the AGB in regards to providing an Expert.

    ICANN’s dispute resolution procedures and the ICC were clear: they would select an Expert. The Panelist though has zero experience in “music” and is not an Expert in this field and hence is not qualified to address such a case. Our concerns were fulfilled with this determination with this unsubstantiated claim which would make the common internet user and music community member cringe and of course determine that the entire proceeding held no merit and that the Expert was really clueless about the music community and its operations:

    4) The Panelist’s determined that the music community does not rely in the DNS/Internet for its core activities. He required proof that the music community uses the Internet/DNS for core activities. Really? A supposed “music” Expert requires proof of the impact of the DNS on music in relation to the restructuring of the entire music community space and industry? Perhaps reading about Napster could have helped this Expert “music” Panelist on the impact of the Internet on the core activity and industry of the music community.

    This is worth repeating: The “music” Expert (whose CV/Resume has no mention of a single music-related case or music experience) determined that the music community does not rely on the Internet for its core activities.

    Let me ask the readers a simple question: who has bought a CD in the last 5 years and how many use their devices to access the DNS/internet to listen to music or purchase music? Did the DNS/Internet change how music is consumed and distributed? How about Youtube’s biggest channel and activity being music-related? How about search engines most searched long tail keywords which are music and lyrics? Does anyone know of any music artist without any Internet presence e.g use email or the Internet to market themselves, communicate or book a gig or finally sell their music or their merchandise?

    This ICANN process is getting out of control. How can a Defendant changed their position during and after a proceeding from non-guilty to guilty and then deemed guilty (Amazon changing position from exclusive to non-exclusive which was the central topic here)? No repercussions? Harm? Why should any Objector lose real money to be paid to a “music” Expert rendering such decisions when they have not done their due diligence?

    We will be demanding answers by both the ICC and ICANN on the selection process of Experts and why the process was flawed and full of loopholes (our ongoing theme that we have been warning about for the last few months which just got fulfilled).

    We want a fair and transparent process following the rules. Under that note I will go buy a CD from a CD store and listen to it on my portable CD player. Remember the music community does not rely on the DNS for its core operations. No music consumption and listening on the Internet. This is not the norm according to the “music” Expert Panelist. If Experts do not understand basic things about the strong association of the DNS/Internet and the music community then how would other concerns such as piracy/copyright infringement be addressed? There lies the mess in this process. No accountability by anyone. All about the money, auctions and screw the community. They have zero standing and the Internet is not a critical resource for them.

    What I would like to know is what readers think? How is this process and Panelist selection credible?

    Constantine
    .MUSIC

    • Constantine,

      You and I don’t agree on a lot of things, and I’m not going to point them out in this specific case. Instead, I’ll point out two areas where I agree with you.

      First is what makes an “expert”, although I’m coming at this from a different angle than you. One thing I’ve struggled with on both string confusion and ICC cases is that the experts don’t seem to have much knowledge about the internet in general and domain names specifically. With the legal rights objections, most of the experts had handled UDRPs and understand how domains work. Not so with panelists for the other types of objections.

      One thing I’ve noticed from the cases that have already been decided is that the panelists seem to think that the groups applying for a TLD want to run a business within the vertical. They’re just trying to offer a service to that vertical.

      Your question about if the panelist on .music cases should be an expert in the music industry is an interesting one that I had not thought about. I suppose the challenge would be finding a non-conflicted music expert.

      Second, it bothers me that one panelist would accept your additional submission while another would not. This gets to the heart of many complaints (on both sides) of these objections: consistency. In my opinion, all of the .music objections should have been heard by the same panelist. Actually, it should have been three panelists. That was a big error in the guidebook. I blame many of the problems of objections so far on poorly written guidelines.

      • Andrew,

        We do seem to agree on fundamental issues here and you are spot on about the poorly written Guidelines. This causes inconsistency and unpredictable results.

        We have tried to consolidate all the .MUSIC under one Panelist like you said but in some cases we were not successful because Applicants rejected that approach.

        I agree on consistency. If ICANN NGPC makes a resolution then that impacts Panel decisions. If we submitted a critical Additional Submission why did one Panelist agree to it and the other reject it. My opinion is that everyone should be given the opportunity to be heard in such a Program that changes on a daily basis. We found it rather prejudiced that the Panelist downright rejected our Additional Submission but then said we did not provide evidence, which was in our Additional Submission. How can we provide evidence and be heard if he denies reading it? We have no issues with everyone speaking their mind but if the Panelist from the get-go is out to get an Objector then all hope is lost.

        Also, as I mentioned earlier there was no clarification by the Panelist why he rejected the Additional Submission. No opportunity to express relevant issues about GAC Beijing Advice, new ICANN NGPC Resolutions, standing issues and of course the material change of Amazon changing their stance. Any reasonable Panelist would really put the entire Amazon issue into context but he did not. We provided evidence of Amazon’s entire strategy to go for all relevant music-themed gTLDs and nearly 60 other closed gTLDs but that was not mentioned in his Determination. He treated all 3 music themed gTLDs in a mutually exclusive manner and then offered no opinion on the exclusive access issue merely pointing to competition authorities to relinquish himself of any accountability of a real decision to explain why Amazon’s position does not create harm and is synonymous to an open Internet which is how the music community operates (context).

        You are spot on with the Panelist selections. They were weak selections and the ICC is obviously to blame. Many have quoted the Independent Objector in cases involving exclusive access and other areas, an Independent Objector whose track history gave his opinion not much credibility since he nearly lost all his Objection cases. Expect us to be quite aggressive in the EIU panelist selections for them to be music Experts who know the subject matter inside out. After this debacle would anyone trust CPE? Not sure what to think.

        I really do think it would be quite easy to find a non-conflicted music Expert. There are thousands of intelligent music industry or ethnomusicologists out there who are quite well versed with the Internet and how the music community interacts and more importantly know for a fact that the internet has transformed the music community and how music is consumed and distributed with the advent of the Internet/DNS, which is something this Panelist rejected. I do not see any conflicts of interests there. Understanding the music players, the internet and the issues at hand would be clearly understand. A domain name is not that difficult to understand and music professors or experts would get it.

        It is quite appalling to read a Determination where a Panelist – who according to the AGB is an Expert – rejects the notion that the DNS is core to music community activities. It is quite laughable. Amazon misleadingly through it in there (even though their bread and butter is the Internet/DNS) and the supposed Expert took the bait and then claimed that we failed to prove the DNS/internet was core to music community activities. If he were an expert he should have known that. Actually a non-expert or a 10-year old music fan would tell he that online is where most music is consumed and distributed.

        When was the last time someone bought a music magazine to read about music news? It all happens online. What is the ratio of music fans buying CDs versus listening to songs online or through digital music streaming? The number is mindblowing but it seems that this particular Panelist requires “proof” of this. What kind of Expert requires proof of something a 10-year old would know?

        If that snippet did not reveal something about the Panelist and the process the proceeding was conducted I do not know what will.

        Wish me luck explaining to relevant parties how the Amazon Objections were dismissed even though they had a change of position to favor our arguments in the middle of the proceeding and how a supposed “music” Expert thinks the Internet/DNS is not core to the music community activities.

        How does one explain those two things?

        Poorly written Guidelines is an understatement. The issue is ICANN did not want to fix the Guidelines. How can there be a “Community” Objection when a “Community” as a group can not object and only one (1) organization is allowed to do so? Try explaining that too to outsiders. We had many issues with the Guidelines which were not consistent with the goals of the Community Objections and we had issues with the selection of the Panelist. We notified ICANN and the result was nothing. So who is in charge and is accountable?

        We all know the problems but things are moving along smoothly to serve the Big Boys, auctions that favor the Big Boys with a fat wallet and of course ICANN since those proceeds go to them in the end. But then again ICANN is a non-for profit. Perhaps they should start listening and more importantly acting. They should refund all parties involved in any Objection entirely because they were a catastrophe.

        Best

        Constantine
        .MUSIC

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