Dot Hip Hop Withdraws ICANN Reconsideration Request and Corrects the Record
Below is the text of the letter sent by Dot Hip Hop, LLC to the Internet Corporation for Assigned Names and Numbers (ICANN) on January 13, 2022, regarding the proposed Assignment of the .hiphop gTLD.
In the interests of moving the assignment process forward of the .hiphop gTLD from UNR to Dot Hip Hop, LLC (DHH), we are hereby formally withdrawing Reconsideration Request 21-3. We are doing this because we believe that no matter how uncomfortable this action was for DHH, the request served its initial purpose. It is certainly an unfortunate undertaking, but we believe it was necessary to help move the process forward and seems to have done well to open up the channels of communication.
As a result of our formal withdrawal of Reconsideration Request 21-3, it is our expectation that DHH’s request for the assignment of .hiphop will immediately be put back on track without the need for a “pause” in the process, as stated in ICANN’s December 22, 2021, letter to DHH.
We also wanted to thank ICANN for posting its thoughts about the UNR assignments on January 6, 2022, in a public blog written by ICANN’s General Counsel and its head of the Global Domain Services division, entitled “Relying on ICANN Community-Developed Processes for a Safe, Secure Internet.” (“The Blog”). We appreciate ICANN’s efforts to publicly explain its rationale for holding up our assignment request for now more than 150 days.
However, we would also like to use this opportunity to correct the record with respect to DHH and our application for the .hiphop TLD. The Blog correctly pointed out that, “With the exception of one TLD, the assignments are the result of private, non-ICANN affiliated auctions held by UNR for several of its TLDs in April 2021.” That one TLD, as you are aware, is .hiphop. As we have consistently represented, although .hiphop was supposed to be included in the UNR auctions, ultimately it was not sold via the auction process. Rather, the members of DHH negotiated an arms-length deal to purchase .hiphop from UNR in July 2021.
I. DHH was completely unaware of the marketing materials used by UNR for the Auction of the other 22 gTLDs. Nor was it aware that there was an NFT at the time the acquisition agreement with UNR was negotiated.
It is also important to note that as we previously represented to ICANN in the many communications back and forth, at the time we executed the agreement with UNR for the rights to the .hiphop gTLD, the members of DHH were completely unaware of the marketing campaigns used by UNR to promote the auction for its TLDs. Nor did the members of DHH (now publicly disclosed as Digital Asset Monetary Network, Cahn Enterprises, and JJN Solutions) know about the NFTs that were minted by Innovative Auctions prior to completing its negotiations for the gTLD. In fact, it was not until either shortly before, or shortly after the acquisition agreement was signed (but after the agreement was fully negotiated), that DHH was made aware of the NFT that was minted for .hiphop by UNR. If DHH had known that an NFT was created for .hiphop, that asset would have been listed and addressed in the Purchase Agreement, which ICANN has had a copy of since September.
II. Dot Hip Hop has never asserted that it believed it acquired intellectual property or ownership rights in the .hiphop TLD; In fact, all of its correspondences say just the opposite.
In The Blog, ICANN claims that it was concerned that UNR’s marketing efforts, in connection with its auction of the 22 other strings, may have misled each of the auction winners into believing that it was acquiring intellectual property or ownership rights in its respective TLD.
To be clear, DHH has never made any statements to ICANN, or anyone else explicitly or implicitly, that it had acquired intellectual property, or ownership rights in the .hiphop gTLD.
Rather, in communications from September 16th, October 14th, November 12th, November 22nd, December 7th, and December 15th, DHH unequivocally stated that: (a) it was fully aware of all of the terms in the ICANN Registry Agreement – which states in Section 7.12:
Nothing contained in this Agreement shall be construed as (a) establishing or granting to Registry Operator any property ownership rights or interests of Registry Operator in the TLD or the letters, words, symbols or other characters making up the TLD string, or (b) affecting any existing intellectual property or ownership rights of Registry Operator;
(b) Neither the NFT nor anything else provided by UNR, conveys “any rights in and to the .hiphop top-level domain”, and (c) even if it could be argued by anyone that there were intellectual property rights “conveyed”, to the extent that there were competing claims, DHH represented that “the ICANN Registry Agreement’s rights, obligations, requirements, etc. supersede any potential rights, obligations, requirement, etc. obtained by the ownership of an NFT with respect to the .hiphop TLD.”
As stated above, DHH did not see (until after ICANN raised the issue) any of the marketing materials used by UNR for its auctions. Therefore, there is no possibility that DHH could have been led to mistakenly believe that we had intellectual property or ownership rights to the .hiphop TLD.
We believe that it is not fair to use the marketing language of the Assignor (which we did not see), which was intended and used for an auction (in which we did not participate), as a reason to delay our assignment. At the end of the day, the marketing language is not relevant to DHH.
The only relevant inquiry is as you state in the Blog, to “ensure the proposed assignees meet the community-established criteria for a registry operator, as well as to ensure a clear understanding of the transactions and any impact such an approval could have on ICANN's remit and responsibilities.”
The Assignee for .hiphop is keenly aware of all of the community-established criteria for a registry operator and has continually committed to following those. In addition, we explained our clear understanding of the transaction and the potential impact of ICANN approving the assignment to alleviate ICANN’s concerns. In fact, on September 16th and October 14th (and in many communications since) we stated that the NFT we received “does not convey any rights in and to the .hiphop top-level domain. . . there is no link, implied or otherwise, between the NFT and the corresponding Top Level Domain and that the existence of an NFT does not create any link to the globally interoperable Internet Domain Name System nor does it create any obligation expressed or implied towards ICANN Org. We understand that (i) NFTs are not within the unique identifiers that ICANN coordinates as part of the Internet’s unique identifier system, and that any sale of domains on ENS supports domains outside of the globally interoperable Internet DNS and (ii) the Registry Agreements do not create any obligation from ICANN to any person or entity that has ownership interest in an NFT.”
III. DHH has always maintained the unimportance of the last-minute de minimus NFT we received from UNR. Therefore, there should be no confusion as to why it was burned/destroyed.
DHH has been very consistent in its communications with ICANN about the unimportance of the NFT acquired by DHH from UNR. We explained that we did not even know about the NFT until after DHH’s agreement with UNR had completed its negotiations. There is no reference to the NFT in the purchase agreement simply because we did not know of its existence. On October 14th, we described the NFT as nothing more than a “piece of artwork that contains the name of the string .hiphop.”
We reiterated this on November 22nd in response to an e-mail from Theresa Swinehart, stating that “the ‘NFT’ we got from UNR is nothing more than an interest in a piece of artwork from our perspective and nothing more.”
On December 7th, ICANN asked whether DHH believed that it was obtaining any rights beyond the scope of that provided in your registry agreement with ICANN by receiving the NFT. Our response could not have been clearer:
No. The NFT is merely a secure symbol of ownership of the .hiphop domain on the Ethereum Network. As we have previously stated over and over again, we are not obtaining any rights beyond the scope of the registry agreement with ICANN. We have never represented otherwise to ICANN. In fact, just the opposite.
Finally, on December 15, 2021, in response to an “update” from ICANN on the status of DHH’s assignment request stating it was seeking more information from UNR on the NFTs, Jeff Neuman of DHH sent to Russ Weinstein the following:
As you and I discussed, we were near the end of closing our transaction when we were told by UNR “oh by the way, you get this NFT as well.” So it was such a last minute irrelevant thing, but icann is blowing this up to be something it’s not. [UNR] never said to us anything about getting any kind of property right or anything else.
To summarize, DHH never knew about the NFT until its acquisition agreement was fully negotiated with UNR. It always considered the NFT to be de minimus and having no operational function. Therefore, the destruction of the NFT (which was the sole topic of questions from ICANN for the past several months) was a logical response intended to speed up the assignment process. By removing the part of the assignment that generated the most “controversy” with ICANN, DHH was hoping that ICANN would be able to move more quickly.
IV. DHH urges ICANN to focus on the Assignee and what it will do with the TLD as opposed to looking at the marketing practices of the Assignor, which at the end of the day, are irrelevant to the future security, stability, and resiliency of the .hiphop TLD, its users and the Internet.
There has been much emphasis on the marketing materials used by UNR for its auction of gTLDs, which ultimately did not include .hiphop. There has also been a lot made about alternate-roots, the blockchain, ENS and other naming systems that fall outside the jurisdiction of ICANN and have unfortunately become distractions in this assignment process. There are a number of TLDs that already promote their relationships with these services, including .xyz, and more recently, the approved assignment of .luxe from Minds & Machines to GoDaddy. DHH believes that this subject should be discussed within the ICANN community through the multi-stakeholder process, as opposed to being used as a point to raise in an assignment process.
The Assignment process was not intended to be used to make policy decisions. Only the multi-stakeholder process can and should be used for this function, whereby then, the resulting policies can be appropriately implemented globally.
Rather, the focus of the assignment process as ICANN rightly states, is the ability of the Assignee to perform the functions of the Registry Operator and its commitment to complying with the Registry Agreement. To date, there have been no questions or concerns raised by ICANN about DHH, nor its ability to comply with the Registry Agreement. DHH has been told that it passed all Due Diligence and was charged $17,000+ for that work in the first 45-60 days. At the end of the day, the Assignee will be the one responsible for complying with the ICANN Registry Agreement and operating the .hiphop TLD, not the Assignor. DHH has done everything it could to provide all relevant information to ICANN, so that ICANN could be comfortable that it was assigning the TLD to a responsible, capable, steward of the TLD. We have demonstrated our ability to operate the TLD, as well as our commitment to abide by all Consensus Policies, community-driven requirements, and most importantly, to provide a safe, reliable space for our registrants. This is all that should matter.