[bc-gnso] Closed Generic TLDs: a straw poll of BC member views

Wed Feb 20 20:48:54 UTC 2013

Dear Mike,

It would be helpful to all BC members if you would (1) declare if you have a
vested interest in this issue or not; and (2) be more specific about which
room?; which discussion?; and who others? share your recall.  Clarity and
information serves us all.

Kind regards,

RA

Ronald N. Andruff

RNA <http://www.rnapartners.com>  Partners, Inc.

  _____  

From: mike at rodenbaugh.com [mailto:mike at rodenbaugh.com] 
Sent: Wednesday, February 20, 2013 3:43 PM
To: randruff at rnapartners.com; 'Andy Abrams'; sdelbianco at netchoice.org
Cc: bc-gnso at icann.org
Subject: RE: [bc-gnso] Closed Generic TLDs: a straw poll of BC member views

These discussions happened long before the vi wg debacle.  I was in the room
and others share my recall.  This is why no categories were recommended
other than Community.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <tel:+14157388087> 
http://rodenbaugh.com 

-----Original message-----

From: Ron Andruff <randruff at rnapartners.com>
To: &apos;Andy Abrams&apos; <abrams at google.com>, &apos;Steve DelBianco&apos;
<sdelbianco at netchoice.org>
Cc: &apos;bc - GNSO list&apos; <bc-gnso at icann.org>
Sent: Wed, Feb 20, 2013 20:37:35 GMT+00:00
Subject: RE: [bc-gnso] Closed Generic TLDs: a straw poll of BC member views

Dear Andy,

I would like to give more thought to both Steve's straw poll and your
comments before opining further, but I think it is important to make clear -
having been myself in the room you speak of - that your characterization
("We have heard from individuals that were in the room that this issue was
in fact directly discussed, and an explicit determination was made to allow
closed registries for non-brand terms.") is incorrect.  The VI WG did not
discuss this issue in the detail you are alluding to (transcripts will
attest to this) and we did not make an explicit determination to allow
closed registries for non-brand terms.  I have little doubt that Co-Chairs,
Mikey O'Connor (former BC member) and Roberto Gaetano (former Board member)
will attest to the fact that in the total number of hours of calls, very
little time was spent on this topic relative to all of the others and there
was rough consensus at best that brands should be allowed to apply and need
not use accredited registrars.

Again, the transcripts of the discussions on this topic will bear this out.

Kind regards,

RA

Ronald N. Andruff

RNA <http://www.rnapartners.com>  Partners, Inc.

  _____  

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
Andy Abrams
Sent: Wednesday, February 20, 2013 2:39 PM
To: Steve DelBianco
Cc: bc - GNSO list
Subject: Re: [bc-gnso] Closed Generic TLDs: a straw poll of BC member views

Dear Steve,

Thank you very much for your work on this issue.  I think we had a
productive discussion at last week's BC meeting, and we look forward to
further dialogue leading up to Beijing.  As we discussed last week, from
Google's perspective, we respectfully believe it is inappropriate to address
this issue with the broad brush stroke of "closed generics" given the
multitude of different business models, industries and applicants involved
as well as the numerous ways to interpret this phrase.  Some of these
business models represent the very type of innovation that was envisioned
for the new gTLD program and would not be possible under the same "pure
open" framework that has existed with every TLD to date.  This does not mean
that we believe all potentially affected applications are equally
meritorious or should be given a free pass - far from it, we strongly
believe in the existing ICANN process of public objections and GAC Advice,
and are taking concerns regarding our own particular applications into very
careful consideration.

However, we believe that the broader issue ultimately comes down to
fairness. We have heard from individuals that were in the room that this
issue was in fact directly discussed, and an explicit determination was made
to allow closed registries for non-brand terms.  Based on our calls with
other companies and BC members, we also know that a large number of
businesses have spent the last year preparing various single-registrant or
restricted business models in reliance on the undisputed fact that the
Guidebook currently allows for such practices.  

Given this context, I respectfully have some concerns with the formulation
of the straw poll.  To us, the issue of the ROCC exemption versus the 1(b)
"reasonably necessary" distinction are a mere subset of the threshold issue
of (1) Change the Guidebook or (2) Don't Change the Guidebook.  ICANN should
eventually address the former question as it works through the details of
registry operation, but from the perspective of business users, I suspect
that the details of whether a single registrant must allow multiple
registrars to sell domains to itself are less relevant than the larger
policy issue.  For our part, we are still agnostic on this and will continue
to explore it further - we do believe that there is a reasonable argument in
favor of either Outcome #1 or #2 of the straw poll (but nothing in the
Guidebook to support #3, as through the ROCC lens there is no reasonable way
to distinguish different "types" of closed registries in the Guidebook).  We
also respectfully object to the characterization of Outcome #1 as "anything
goes," (though I do like that as the new title of the public forum!)  

For these reasons, perhaps it makes sense to restructure the poll in a
manner which reflects the binary discussions we have had in the BC thus far?
To the extent people do have strong feelings about Outcome 1 v. 2, perhaps
that can be a subcategory of the status quo position?  I appreciate your
consideration.

Best,

Andy

On Sun, Feb 17, 2013 at 8:50 PM, Steve DelBianco <sdelbianco at netchoice.org>
wrote:

BC Members:

ICANN just opened a public comment period (link
<http://www.icann.org/en/news/public-comment/closed-generic-05feb13-en.htm>
) asking whether to classify certain TLD applications as "closed generic",
and to deter me "circumstances under which a particular TLD operator should
be permitted to adopt open or closed registration policies."

As written, this comment solicitation steers away from the question of
whether a registry can own all the domain names in a TLD.  Instead, ICANN is
asking whether we need new policies regarding who may register a domain, as
is apparent from this "background" statement under the public comment:

"it should be clarified that the Code of Conduct refers to
registry-registrar interactions, rather than eligibility for registering
names in the TLD. Rather than the Code of Conduct, the true issue of concern
being expressed appears to be that in certain applications, the proposed
registration policies are deemed inappropriate by some parties."

That points us to the Registry Code of Conduct (attached), which was created
partly in response to BC concerns about allowing vertical integration of
registries and registrars.  Here's the section most relevant to this
discussion:

1. In connection with the operation of the registry for the TLD, Registry
Operator will not, and will not allow any parent, subsidiary, Affiliate,
subcontractor or other related entity, to the extent such party is engaged
in the provision of Registry Services with respect to the TLD to:

b. register domain names in its own right, except for names registered
through an ICANN accredited registrar that are reasonably necessary for the
management, operations and purpose of the TLD          

Reasonable people interpret 1b differently.  Does 1b prohibit a registry
from owning names in its own TLD, except for limited circumstances?   Or
does 1b allow a registry to own any and all names that suit the purpose of
their TLD? 

ICANN legal may further clarify its interpretation of 1b, but I believe they
see 1b as permitting  a "closed generic" TLD to own all its own names.

Whatever the thoughts of ICANN legal, we have an opportunity to comment on
what should be the interpretation and implications for closed generic TLDs. 

As we discussed last Tuesday, the BC may not arrive at a consensus or
majority view, in which case we could submit just background information.

My goal with this email is to to conduct a "straw" poll of BC members to
assess convergence around a desired policy outcome that would form the basis
of a BC Comment on closed generics.

First, I compiled a 3-page history on the BC's support for closed TLDs,
starting in 2007 with sponsored TLDs and then for dot-brand TLDs starting in
2009. (See attached)   BC members with long memories may want to improve on
that history, but its only here for background so let's not get too
wrapped-up in that. 

So, here are the 3 potential outcomes we proposed on the BC call last week.
Please reply with your views and preferences by 21-Feb-2013 and we'll see
whether there's enough support to do a BC position on this before ICANN's
deadline of 7-March.

Outcome #1:  Anything Goes.   The registry Code of Conduct clearly allows a
TLD operator to have control over who registers domains in their TLD, and
the operator can own all the domains if they wish.   Under this outcome, a
registry could own all the domains in their TLD without having to ask ICANN
for an exemption from the Code of Conduct.

Outcome #2:  Exemption Required. The registry Code of Conduct prohibits a
TLD operator from registering names in its own TLD, except for names
reasonably necessary for operating the TLD.   Under this outcome, the 1b
"except for" does not swallow the rule and thereby allow control of all
domains in the TLD.   A registry that wants to own all the domains in its
TLD can still do so, however, if it obtains an exemption from the Code of
Conduct, as provided in Para 6 of the Code:

6. Registry Operator may request an exemption to this Code of Conduct, and
such exemption may be granted by ICANN in ICANN's reasonable discretion, if
Registry Operator demonstrates to ICANN's reasonable satisfaction that (i)
all domain name registrations in the TLD are registered to, and maintained
by, Registry Operator for its own exclusive use, (ii) Registry Operator does
not sell, distribute or transfer control or use of any registrations in the
TLD to any third party that is not an Affiliate of Registry Operator, and
(iii) application of this Code of Conduct to the TLD is not necessary to
protect the public interest.

All that remains is for ICANN to develop & publish the process and criteria
they will use to determine whether giving an applicant this exemption is "in
the public interest" as required by para 6.    Presumably, the public
interest would include considerations of consumer protect, freedom of
expression, competition, innovation, and relevant pledges made by ICANN in
the 2009 Affirmation of Commitments.

Outcome #3. Only dot-brands may get an exemption.  Only dot-Brands should
get the Code of Conduct Exemption. That would allow .Hilton, .Apple, .Google
to pursue the exemption, and they should have no trouble getting it.  But
Goodyear would not be eligible for an exemption that allow it to own all
names in .tires TLD, for example.

If this straw poll reveals no significant support for any of the above, the
BC would not draft a position on this public comment period.  Instead, the
BC might submit just background information and analysis, and perhaps a
Reply comment later on.

--

Steve DelBianco

Executive Director

NetChoice

http://www.NetChoice.org and http://blog.netchoice.org 

+1.202.420.7482 <tel:%2B1.202.420.7482>  

-- 
Andy Abrams | Trademark Counsel
Google | 1600 Amphitheatre Parkway, Mountain View, CA 94043

 <https://www.google.com/voice#phones> (650) 669-8752

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