UK: DMH Stallard And Cloud Industry Forum Raises Fears Of Online Cloud Hijack

Last Updated: 6 March 2013
Article by Frank Jennings

This story first featured on BusinessCloud9, PublicTechnology, Lawyer Monthly, Comms Dealer and TheDataChain.

The Cloud Industry Forum is calling for greater education and promotion by ICANN about the proposed gTLD registry consultation process, and to ensure it has taken appropriate actions to ensure the consequences are understood and feedback is sought rather than passively awaiting a deadline.

Andy Burton, chairman of the Cloud Industry Forum (CIF) states: "Domain names are the building blocks of the internet, an address book of sorts.  Many people may be unaware that there are significant plans afoot to launch some new Top Level Domains (TLD's - these are the extension that appears after the 'dot' like .com, .co.uk, .org etc) that will help shape the future for navigating the Internet."

The global body governing this activity is ICANN (Internet Corporation for Assigned Names and Numbers) and last year they opened up applications for new global TLD's which included a number of generic phrases like .CLOUD, .APP and .SEARCH.  However, applications have been made by some large organisations to register these TLD's as what if referred to as a 'closed registry', meaning that only the owner of the TLD decides who can have a second level domain such as "acme.CLOUD".

This should be a huge concern for anyone keen to see an open market and the preservation of common sense as no single commercial entity should be able to lay claim the phrase cloud and dominate the use of this as a TLD on the internet.

The big worry according to Andy Burton: "is that most people are not even aware this activity around preparing for new TLD's is underway, let alone that there have been applications for .CLOUD or that some of those applications are promoting a closed registry for this generic industry phrase.  I am very confident that if the education process had been better we would have seen a lot of action before now to ensure common sense prevails.  However, I would like to point out that it is not too late for anyone to act as the window for public comments and objections to the granting of closed registry applications is open to the 5th March and a more formal approach for Industry Bodies such as the CIF to put in a Community Objection is open until the following week."

Frank Jennings, cloud lawyer at DMH Stallard and chair of the Cloud Industry Forum Code of Practice Board added: "Allowing one commercial organisation to turn a generic term, cloud, into a closed domain registration scheme is likely to be anti-competitive. A scheme which excludes the wider cloud sector in favour of one organisation may even be contrary to ICANN's own Affirmation of Commitments to "promote competition, consumer trust, and consumer choice". A new .CLOUD domain should be managed by a not-for-profit registrar, allowing all those who operate in the cloud sector to apply to register."

ICANN has been working on the new gTLD domain programme since as far back as 2003, with major consultations taking place until 2008 when the ICANN board adopted a number of policy recommendations for introducing them, which included a number of allocation criteria and contractual conditions.

Graham Taylor, CEO of Open Forum Europe stated: "We support CIF in their concern based on a number of issues not least the fact that the broader market appears to be completely oblivious of the proposed changes to gTLD registry. We are convinced that if they are aware of the fact that some commercial organisations are applying for generic categories in the industries in which they compete, and could operate them at their discretion without having to abide by a clear set of rules, this is anti-competitive in the extreme and in particular regard to .CLOUD will only serve to confuse the market about a nascent method of delivering IT as a service. In the same way as the Internet itself was successfully built on the principle of Openness - open standards, open access, and free of restriction allowing innovation for all – so must the Cloud. It will be only too easy to slip into the bad old days of lock-in to closed systems, controlled by single suppliers"

It is noteworthy that in 2009 ICANN signed what was termed the "Affirmation of Commitments" with the United States Department of Commerce. In that document ICANN agrees that its mission statement includes a commitment to promoting competition, consumer trust and consumer choice.

"The point of the TLD expansion as articulated by ICANN was to organise the web and foster competition and consumer choice as set out in the Affirmation.  However, closed generic TLDs will have the equal and opposite effect by favouring the owners of closed registries," added Burton.  "Closed registries are fine where a brand or trademark is involved, but where the phrase is generic, as is the case with .CLOUD it is absolutely inappropriate to lock out the wider market from participation."

Taylor added "We must remember we are taking about the very fabric of the internet, about the fact that it should be seen as a level playing field. We must avoid the danger of seeing a two tier internet where any single company could limit choice and lock out the competition."

"Common sense needs to come into play here as does a quick check on what can be trademarked or not. After all there have been plenty of times in corporate history when some organisation or other has attempted to trademark a generic industry phrase and has been shot down by the courts.  This logic needs to be applied again now," continued Burton. 

The .CLOUD generic top-level domain (gTLD) is one such example. If one commercial organisation ultimately wins control over the .CLOUD registry in a closed form, then no individuals, organisations or businesses will be able to register and use a second level .CLOUD name for their website without that owners permission. Burton concluded "We are not against the launch of dot CLOUD, but we require it at the very least to be an Open Registry where the rules around access are not limited to a single commercial entity but are operated on an industry basis.

According to Andrew Corbett, Development Director of the UK IT Association (UKITA), "a monopoly of the .CLOUD domain risks creating an unfair marketplace in which all other cloud providers are deemed inferior or less likely to be found if people select vendors with the appearance of specific relevance by the form of the TLD,"

"What we may be seeing here is at best an ill-informed decision by large companies to seek to create a closed cloud registry, worst case it is a deliberate attempt to muscle out the smaller providers, ultimately at the expense of the end user consumer of cloud services. Diversity in the cloud supply chain is key to its success, but if one company or another does succeed in claiming ownership of 'cloud', my fear is that many of the more agile, specialist SMB providers will be razed to the ground.  We fully support CIF in raising this matter high on the public agenda and encouraging people to have their say through the formal processes available – but we all have to act quickly if we want to ensure common sense prevails" stated Andrew.

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