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June 16, 2014

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Here's the The Lowdown from DN Journal,
updated daily
to fill you in on the latest buzz going around the domain name industry. 

The Lowdown is compiled by DN Journal Editor & Publisher Ron Jackson.

ICA Takes Down Corwin Letter on Network Solutions/.XYZ Issue After Fairness Objections Raised

Yesterday I told you about a letter that Internet Commerce Association (ICA) Legal Counsel Phil Corwin wrote, calling on ICANN to look into the current controversy swirling around Network Solutions registering tens of thousands of .XYZ domain names and placing them in their customer's accounts without prior notification (customers were told after the fact and then had to write back, opting out if they wanted the free domain(s) removed from their account). 

Corwin's letter discussed the ramifications (and possible danger to registrants) that arise from a registrar taking it upon themselves to do this (an action that may be in violation of Network Solution's Registrar Accreditation Agreement with ICANN - something Corwin wants the governing body to look at).  

So far so good, but the letter has also created some new controversy, especially over a particular passage we will get to. First, as 

 

Phil Corwin

background, Corwin penned his piece for  CircleID as a private individual with a disclaimer in the brief bio at the conclusion of the letter noting, "The views expressed in this article are solely his own." The ICA is not mentioned in the bio that covers Corwin's other roles as "Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm. He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman, and as Strategic Advisor to the ICANN Sherpa DNS-focused consultancy."

As the ICA's Legal Counsel Corwin also has the ability to post articles on the ICA website and he initially posted a copy of his CircleID letter there. The passage I referred to above, which generated some critical commentary at Circle ID, also  

sparked some emails to ICA board member Nat Cohen who decided to take the copy of the letter on the ICA site down today until the board could meet as a whole and "review the article in more detail before we adopt it as an official ICA position." The original letter and commentary remains on the CircleID website

The passage in question was not about the Network Solutions issue with .XYZ registrations, but Corwin's question whether or not ICANN was doing thorough enough background checks on new gTLD registries and their top executives. In that passage he noted that Daniel Negari, the CEO of the .XYZ, along with his company Cyber2media, had been defendants in a lawsuit filed by Facebook in 2011 - a lawsuit that was later dismissed. In the comment section, John Berryhill, one of the world's top domain attorneys, took issue with Corwin citing a dismissed action as cause for suspicion, calling it a "personal smear."

To illustrate his point, Berryhill took it a step further, noting that Corwin's firm, Greenberg & Lieberman, is defending a client who is being sued for breach of contract by a company associated with Negari (a case involving non-payment for the domain MD.org which had been sold for over $555,000) and that "This personal smear likely has more to do with Mr. Corwin's deadbeat client, than internet policy." 

To further clarify, Berryhill added, "Mr. Corwin may, in fact, have no personal knowledge of that litigation, regardless of whether it may be imputed.  But, by the standard of the article above, it is illustrative of how one can construct theories of events which, to the conspiratorially-minded, "raise questions" about the unbesmirched and well-deserved fine reputation of the capable firm of Greenberg & Lieberman with whom it has been my privilege to have worked as co-counsel in matters past."

Attorney John Berryhill

Berryhill has a valid point as our system of justice is built on the principle of innocent until proven guilty. All manner of complaints are filed against people (especially in the civil arena) with some having merit and some not. Thatís why we have a court system. 

As of this writing, Phil Corwin has not replied to comments at Circle ID and I wouldn't expect him to comment on the ICA's decision to take down that copy of the letter until he has conferred with their board members who will determine whether or not it goes back up. Update: Mr .Corwin has posted a response to his critics in the commentary section below his letter at CircleID.com.

Additional Update (June 16, 2014): Regarding his reference to the Facebook lawsuit involving Mr.  Negari in his original letter (an action that was dismissed),  Mr. Corwin has posted a statement on the ICA website stating "I now regard my referencing of the Lanham Act litigation as a mistake in judgment," adding, "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."

(Posted June 14, 2014) 


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