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Who Cares about the ICA?

2011 November 4
tags: , ,
by Nat

At first I was surprised by how little support the ICA received from Domainers. But the more I talked to other domainers, and the more I thought about it, the less surprised I became. Instead I became pleasantly surprised that the ICA has as much domainer support as it does.

This isn’t because what the ICA does isn’t worthwhile and it’s not because the ICA isn’t effective.

I think it boils down to most domainers are not that affected by the issues that the ICA fights for.

The ICA is the Internet Commerce Association, a trade group advocating for domain registrant rights. It is supported by a small group of dedicated domainers, and domain industry companies including Sedo, Oversee, HitFarm, NameDrive, TrafficZ and Tucows. Phil Corwin, a veteran DC attorney, has for many years been the lobbyist for the ICA and is the only person who receives compensation from the organization.

Even though ICANN and Congress set the rules by which our businesses run, and even through every .com domain and other gTLD domain we own is subject to a Registration Agreement written by ICANN, and even though that Registration Agreement says that any domain we own can be taken from us through a cheap and flawed UDRP process, most of us can go about our business blissfully free from any thoughts of ICANN, or Congress, or the UDRP.

You can look at domainers and find three primary business models: parking, flipping, and long-term investing. If you are parking product domains, then you are probably safe. If you are parking trademark typos, then losing your domains to a UDRP is a cost of doing business. The fault line lies if you are parking generic/dictionary word domains that could also be subject to trademark. Then you could risk losing a valuable generic in a UDRP due a stray ad on a parked page. If this has happened to you then you may care about UDRP reform, and you may become interested in the ICA. But otherwise, likely not.

If you are a domain flipper, then you probably don’t hold onto your domains long enough to get hit by a UDRP. There have been instances where a UDRP was filed very soon after a domain was purchased, but by and large, as a domain flipper, you probably feel safe and you won’t care about the ICA.

If you are a long-term domain investor, then you are most likely to be concerned about ICANN and domain policy. You will be concerned about UDRPs, about the URS and efforts to weaken the UDRP, about trademark clearinghouses, about Verisign’s dot-com contract, about attempts to put preferential pricing provisions in new gTLDs, and the new gTLD release.

But if you are long-term domain investor, then you likely have a lot of cash tied up in your domain portfolio. You may have made a big investment and have been waiting years for it to pay off. So money may be your issue. Are you going to give away $5k-$10k to the ICA, if you even have the cash available? Or if you do have the cash, wouldn’t it be a better investment to buy another domain?

Maybe you got hit with a UDRP that you think is unfair from a trademark bully. Maybe you got a bad decision and your domain was transferred, and you face an expensive lawsuit to keep it. Then you’ll care, but you’re already dealing with a large, unexpected legal bill, and the last thing you want to do is take out your wallet for another large payment.

If you are a long-term domain investor, who is big enough that you’ve been hit with a few bogus UDRPs so that you start to care about UDRP reform and ICANN issues, and also successful enough that you still have cash left over, then you may look at the ICA as a worthwhile investment to help sustain the long-term viability of the large investment in your domain portfolio. But there aren’t many domainers who fit this description.

If this description doesn’t fit you, then you may not see much value in the ICA.

Even if you do match this description, there are many other obstacles that get in the way of supporting the ICA.

One of the biggest obstacles is that as businesspeople, we expect a return on our investment. We like to see a clear cause and effect relationship. What do I get for my money? If I donate a few thousand dollars, what difference will it make?

In the world of lobbying, and especially when dealing with ICANN or Congress, everything is murky and there is no clear cause and effect mechanism. The ICA can point to involvement in some successes. But what would the outcome have been if the ICA wasn’t involved? It is very hard to say, as most policy decisions have input from dozens of stakeholders.

It doesn’t help that the ICA doesn’t wield much direct power at ICANN. The ICA is a member of the business constituency, which is largely dominated by trademark interests, and is itself one of many sub-constituencies of a larger constituency, the GNSO, the Generic Names Supporting Organization, that even in total doesn’t have much influence at ICANN. If I understand the ICANN structure correctly, the entire GNSO is entitled to appoint only two of the 21 members of the ICANN board of directors. Aren’t your eyes starting to glaze over already?

Another obstacle is lack of comfort with the whole idea of lobbying, or lack of familiarity with it. I live in Washington, DC. I used to work for the Federal Government where I dealt with lobbyists on a daily basis. My next-door neighbor runs a large lobbying firm. Yet I still have only the vaguest idea of what lobbyists do and how they are effective.

The United States has a strong culture of using lobbyists. Many other countries don’t. If you are a domainer from one of these countries where lobbying isn’t as prevalent, the whole idea of lobbying may be foreign to you.

Lack of experience. I’m going to try to find a way to say this that doesn’t sound obnoxious. Many successful domainers are young. They are techno-geeks. They have dedicated themselves to building their business. They may not have yet paid much attention to the legislative process, to policy development, to the nuances of the UDRP language. And this applies to many old geezers too. There are certainly many exceptions, but it is a lot to ask a young person, who is making their first steps at starting a business in a new industry, to shift their attention and focus on the obscure, complex issues of ICANN policy making.

Another obstacle is the perception that the ICA is dominated by Parking companies and only responsive to their concerns, not to the concerns of domainers. This is a concern that Rick Schwartz and Howard Neu have raised. This is a bit of a Catch-22. As Howard says, if only Parking Companies give money to the ICA, and if only Parking companies are involved in the ICA, then it follows that the ICA will be most responsive to their concerns. The parking companies want domainer involvement, and have been responsive to domainer concerns, but this perception is one more obstacle for domainers to overcome.

Lack of outreach is another Catch-22 problem. The ICA used to have an Executive Director position to do fundraising and to try to attract new members. But the EDs weren’t successful enough to support their salaries, so the position was terminated. The ICA is run by volunteer members who all have demanding work responsibilities to which they must give priority. So little time is left over to do outreach. And as I’ve been describing, persuading someone to join the ICA is not an easy sell. It takes a consistent effort, lots of education, and plenty of engagement to overcome the many obstacles. There simply isn’t enough time or resources within the ICA to do this on a consistent basis.

There is also the freeloader problem.  This is one I didn’t mention in the original post.  As long as the ICA exists, and is carrying out its mission because other people have funded it, then there is no need to contribute yourself.  Especially if you have any of the doubts or reservations described above, the path of least resistance is to do nothing.

Another objection I overlooked originally can be called the reverse freeloader problem.  Or, in other words, ‘if the big boys aren’t supporting ICA then why should I’?  This is articulated by ‘domains’ in the comments below:  “Let me know how much they contribute and if I’m happy with the amount, I will start supporting.”  There hasn’t been a lot of visibility into who is, or is not, supporting the ICA.  Beyond a few well known prominent domainers, there isn’t even a lot of visibility into who are the top domainers in the industry.  With so little clarity about who is supporting the ICA and how much support the ICA has, it is hard for the industry as a whole to get behind the ICA.

Yet another hurdle is that there are no clear benefits to joining the ICA.  Most industry associations offer valuable benefits that more than offset the membership costs.  These can include favorable rates for trade conference attendance, group purchase discounts, industry newsletters with useful insights, and so on.  In the domain industry, private groups put on the trade shows, not the association.  No registrar or parking providers offers discounts to ICA members.  Industry information is shared broadly be a network of bloggers.  The absence of clear, direct benefits makes supporting the ICA a harder sell.

So for all these reasons, it is a wonder that the ICA gets any domainer support at all.

The surprising thing is that many of the domainers who support the ICA do so even though they have very little appetite for the policy issues that the ICA focuses on. Chad Wright of WebQuest generously supported the ICA even though he was in the middle of a very expensive fight to overturn a UDRP decision that ordered the transfer of his domain name, and even though, as he says, “Legal issues give me a headache.”

Eric Grant of Reflex Publishing put it this way:

I tend to not follow policy issues as closely as I should. It’s not that I don’t recognize the importance of presenting the domain investor viewpoint, it’s just that this is something that I don’t enjoy, despite the relevance to my business.

In a broad sense, that is why I’m contributing to the ICA: I’m hoping that I can at least contribute funds to help where I should also be spending more of my time.

This isn’t a post to give reasons for why the ICA is deserving of domainer support. I hope to do that in another post.

This post is an attempt to put out there for discussion reasons why the ICA hasn’t received more domainer support.

11 Responses leave one →
  1. domains permalink
    November 5, 2011

    Interesting read.

    I been meaning to support ICA but imo its the big portfolios that should be most concern about supporting. They have more at risk. Imo. Go on dnforum and see if domainers there will donate 20k in a month to help support ICA. You think it can be achieved or other forums? Honestly I would be shocked.

    Being a domain flipper your right about short term issues. But at same time I have long term holders as well.

    If you take the top 50 domainers in the world, ask them how much money they give to ICA. I bet the total sum will be peanuts compared to there value in domains.

    Just my 2 cents. Let’s say I donate 500 a year. Will this help? Will other domainers who are small players going donate as well?

    Nat, I hear what your getting at and the domain community is shrinking imo.
    A good follow up post would be what are the top domainers donating and how much? Then ask the companies how much they donate.

    Just some thoughts to consider. I thought there would be a comment in this post by now and goes to show the interest in this topic. Not saying its a bad post or implying anything. Just an observation.

  2. domains permalink
    November 5, 2011

    And that case was bullshit. Excuse my language but its true. Makes me sick.

    Google and Bing are also to be Blammed with ads and generic domain names. So now the image is its domainers faults. Not necessary. I kept on changing a keyword on a google feed parking company and did want sports showing up on a 2 letter domain name. Google kept on showing ads. Not the parking companies fault. It was google in this case.

    • Nat permalink*
      November 5, 2011

      The domainer is the fall guy in the parking industry. The domainer buys the domain, provides the traffic, Google and the parking company monetize it with whatever ads they want. The domainer takes all the risk.

      UDRP panels hold domainers responsible for the content of the ads that appear on parked pages even if the domainer does not select the ads that appear and is unaware of which ads are displayed. It’s not uncommon for a domainer to park a generic domain based on a common word on which a company may also hold a trademark, then Google displays an ad related to the trademark use and the domainer loses the domain through a UDRP.

      Strangely the UDRP takes a much harsher view of ads related to trademark use than trademark law in general. Google consistently wins cases where trademark holders object to 3rd party ads that use the trademark in the ad. But a UDRP panel will view that as bad faith and order the transfer of a domain.

      Even web publishers fare better. Under the DCMA, web publishers are not held liable for 3rd party content that appears on their site, and there is a take down provision that allows the publisher to remove the content to avoid exposure to any liability.

      You might think that a similar provision would be available to domainers who park their domains. The analogy to a web publisher seems pretty strong. But under the UDRP, the trademark owner doesn’t have to give any notice. They can go straight to a UDRP and one bad link can cause you to lose your domain.

      • November 9, 2011

        I think the issue is not so clear cut and you have to be careful not to compare apples with oranges. There is a huge difference between registering a domain and placing an ad on a domain. Problems occur when the domain itself is closely aligned with an ad which is also aligned with a mark.

        Additionally in some of the Google cases the mark is only the trigger for the ads and is never actually displayed.

  3. November 5, 2011

    Nice, well-researched article.

    It’s true that ICA is one fish in a big pond when you look at how ICANN policy-making bodies are structured.

    However, it has recently managed to get some tangible changes made to ICANN policies directly, using the Public Comment process, which bypasses the constituency/GNSO hierarchy.

    I have to say, too, ICANN is about much more about UDRP reform, from a domainer’s perspective.

    What about Uniform Rapid Suspension? The Trademark Clearinghouse? Whois reform? Registry-registrar vertical integration (what if VeriSign bought Go Daddy)? The forthcoming regulation of proxy/privacy services?

    I’d say these are important issues for all serious domainers, particularly those who think they might invest in new gTLD domains.

    At some point before long a domainer is going to get hit with a WIPO invoice for a URS case they lost (yup, loser pays is coming) and they’ll probably wish they’d paid attention to ICANN sooner.

    • Nat permalink*
      November 5, 2011

      All good points. The truth is that the ICA has fought many battles on behalf of the domain community, and has turned back many bad policy recommendations. I believe that without the ICA, the business environment for the domain industry would be much more hostile, our domains less valuable, and our future prospects worse. As you say, for serious domainers there are many issues that require our attention if we wish to preserve our livelihood. The ICA gives the domain community a voice, helps educate policy makers who are usually ignorant of our industry and of the unintended negative effects of well-intentioned but badly formulated policy, and helps protect our business.

      Thanks for the comment.

  4. domains permalink
    November 5, 2011

    @nat yes agree for most part and on Domainer owning the risk while google continues to show TM ads on generic domains

    I agree we are all domainers and should help. But the million dollar question is how much the top 50 domainers of the world support ICA. Let me know how much they contribute and if I’m happy with the amount, I will start supporting. Sounds childish? I don’t think so. The old timers have more at risk and they also protect there assets. Vs say a small Domainer.

    Either way its all one big puzzle. Headaches just thinking about udrp process, the risk factors and only get worse for all of us imo.

    Just My 2 cents Nat. Sorry if I seem to disagree on few issues but for most part we are on same thoughts.

  5. Please permalink
    November 8, 2011

    The main reason I will not support the ica is due to the fact that the organization was founded by squatters and financed with dirty money. Having founders like ireit produce a domainers bill of rights is kinda like having tiger woods write about the virtues of marriage. A huge facade

    • Nat permalink*
      November 8, 2011

      Thank you for coming up with yet another reason for not supporting the ICA. Clearly we are far from having a comprehensive list.

      You are welcome to not support the ICA for whatever reason you want, but I don’t think this reason stands up to scrutiny.

      If trade groups only represented angels, then there would be no trade groups. Microsoft has had its issues. So has BP. So have the banks. So has Wal-Mart. So has any business group. Yet they are all represented by trade groups, as they should be.

      Either the domain industry is wholly illegitimate, in which case it is not entitled to any representation.

      Or it is a legitimate business, with legitimate concerns and interests, and therefore the industry is entitled to have a voice in policies that affect the industry.

      Despite Tiger Woods’ marital troubles he is still a member of the PGA in good standing. Despite your issues with specific companies in the domain space, the domain industry itself is entitled to representation and to a group that advocates for its interests.

  6. permalink
    July 25, 2012

    I won’t support the ICA because I don’t believe their code of conduct is enforced. Further, one of their major members is the parent company for Domain Tools who sued me in a bogus lawsuit thousands of miles from me. Then one of the attorneys involved posted on a blog:

    “So, file an action seeking damages, serve it, claim damages not to exceed $10,000 and wait for a default. Then try to enforce the default. The reason for the damage limit is to force them into a situation of spending more than $10,000 to defend in AZ or default….”

    I got the case dismissed myself but they still have to answer the request for sanctions. The ICA cannot be complaining about others if their members are doing the same thing.

    However, you can send them more money to make sure the members involved can afford any judgement I get against them for trying to screw me over.

  7. Jeff permalink
    September 30, 2014

    The ICA is a great organization but I will say this.. This year I decided not to donate a couple hundred bucks or few hundred bucks. That money went to a homeless shelter. I realize and my gut said donate last year, not huge amount of money and felt fine. This year the ica kinda rubbed me the wrong way. Nat was very helpful to hear my views though and etc. Just seems the ICA needs to fix up there pr mistakes and be in tune with everyone else.

    Maybe next year I will give some but it seems the ica is so out of tune of the common domainer IMO. Then few months back there has been discussions about various organizations being formed.

    Something to think about if the ICA is having some challenges with views from the domain community, how is 3 or 5 organizations going work out? compete against each other and have a weaker organization.

    No offense Nat, the board of the ICA and or paid members. Some of them are close friends of mine.

    Good seeing you post again Nat, when you speak, I listen carefully. Your one of the greatest investors.

    Cant please everyone and I dont mean to come across to harsh Nat. Got enough headaches of my own this year. LOL


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