[Gnso-newgtld-wg-wt2] Actions/Discussion Notes: Work Track 2 SubTeam Meeting 13 April

Thu Apr 13 22:07:10 UTC 2017

Dear Sub Team Members,

Please see below the action items and discussion notes captured by staff from the meeting on 13 April.  These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording.   See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. 

Please also see the attached slides and PDF referenced below.  Excerpts from the chat room are included below for ease of reference.

Best regards,

Julie

Julie Hedlund, Policy Director

Action Items/Discussion Notes 13 April

Closed Generics

-- Looked at the pros and cons on our last call based on the public comments.  There was an update to the RAA that restricted closed generics.

-- On the last call we didn't have a lot of feedback on the cons, more on the pros.  Intention today is to take another looking at the cons and see what kind of harms there are.

-- Asked staff to put together the types of harms that are identified.  Found different categories of harm.

-- Are these harms asserted as potential harms, or identified harms?  Rather than identify we will say "mentioned".  From what we gathered from the public comments these are how commenters identified potential harms.

-- Let's call these "alleged harms."

-- Majority of the comments talked about a harm to competition.  There also mention of harm to the public interest and legal principles referenced, mentions of ICANN Bylaws and GNSO advice.  Also the RAA code of conduct.  Threat to open internet, cultural harm, trademark-related harm.

Harm to competition (page 1 of the document)

-- Comments from last call we noted harm to competition was raised by competitors.

-- Might want to look at a finding by the International Chamber of Commerce on .mobile.  CTIA objected to at least one application on the grounds that it was a closed generic will all traffic going to one CTIA member.  Language about harms to business communities: https://iccwbo.org/publication/exp_499_icann_116_expert-determination/.

-- Think there were several community objections did relate to unfair competition.

-- Something to bear in mind in relation to competition: there was to some extent some benefit that another brand owner might seek a closed generic might not be a bad thing for us (BBC).  Some spaces could be safeguarded from greater abuse.

-- When you are faced with a number of TLDs and defensively registering your brand.  Say you are in the food industry and .food is a closed generic it saves you the money on registrations.

-- Kathy's example is not fully helpful.  I think that decision came in a pre-determined outcome.  There is nothing prohibiting closed generics -- it wasn't until after applications came in.  Then the GAC piled on citing competition harms without real hard data.  Then the snowball effect.  If we going to reopen this issue I do think we owe it to open it from the beginning.  I think we have to go back and do a real review, but I'm not sure it's worth it.

-- There was a request that we look into this.  As for going back and doing a review, I am open to suggestions.  NGPC resolution (since disbanded).  Don't know if it would carry as a Board resolution.

-- Do want to make sure we are looking at what has been said about alleged harms.

-- Not in a postion for laying out the case for why this exploded the Internet community in 2012/2013.  So the ICANN Board stepped in.  Need to hear the arguments.

-- The intention in this call is to address the cons on closed generics -- pros were covered on the last call.

-- If there were no prospects and an application for a closed generics was on hold an applicant might have decided to withdraw it.

-- Board told everyone that you would have to open up your string or sit in the penalty box until the next round.  Don't think we need to stick to the .com model.  There are newer models.

>From the chat:

Paul McGrady: GNSO Policy on new gTLDs actually didn't prohibit or even mention closed generics.

Kathy Kleiman: Many drafters of the Applicant Guidebook felt very strongly that Closed Generics were barred by the rules.

Paul McGrady: Why were non of the pro-closed generics comments from the last round included in this document?  Seems either a big oversight or one-sided designed to lead us all to a particular conclusion.

Paul McGrady: But we are only seeing what 1 side has said.  Why aren't we looking at what the other side said?

Michael Flemming: We have gone over the Pros in the last call. Could you be clear what the other side would be?

Susan Payne: @Kathy, that might have been the intention of some, but I don't think that was what the wording of the AGB said

Kathy Kleiman: @Susan, the response in 2012 and 2013 was considerable! https://iccwbo.org/publication/exp_499_icann_116_expert-determination/ I think the determination stands on its own - worth reading! 

Susan Payne: @Kathy, what do you mean the response in 2012/2013?

Kathy Kleiman: The letters and articles written in 2012 and 2013 - some circulated earlier today.  Many with group signatures.

Susan Payne: yes but my point is that is not what the AGB says, that is what some people wrote after the event surely

avri doria: Even if we don't reopen it, we need to be explicit. One of the deficits in the previous policy is that we were not specific about approving closed generics, we just assumed that of course they would be ok.  note: we did not even have a name for them back then.

Cheryl Langdon-Orr (CLO): indeed Avri 

Paul McGrady: +1 Avri

Cheryl Langdon-Orr (CLO): not sure we have any consensus on that Kathy... I don't agree they are " by definition " Good

Steve Chan: @Paul, the NGPC was empowered by the Board to pass resolutions. Therefore, NGPC resolutions are ICANN Board resolutions.

Cheryl Langdon-Orr (CLO): rather that this needs discussion 

Paul McGrady: @Kathy - that was the pre-round 1 model

ICANN Bylaws, Affirmations of Commitments, GNSO Advice, and Registry Agreement Code of Conduct (page 3)

-- Two things here: Not sure what relevant GNSO Council advice there is on this.

-- Why don't we read the Code of Conduct and see if there is anything about it?  While we are looking for the exact text, that certainly was one of the items that was discussed.  One of the comments people were making is it could be open to all registrars, but I don't think we ever dug deeply down that line of argument in terms of to what degree -- when you make a deal with a registrar you have to make the same deal with everyone.  Don't think that one was resolved.

(reading from the Code of Conduct, Specification 9, page 282-283)

-- Doesn't seem to restrict closed generics.

-- Not very specific comments relating to Bylaws, etc.

Threat to Open Internet (page 4)

(Reading from post from Michele Neylon: https://www.internetnews.me/2013/02/23/5-reasons-why-closed-generic-new-gtlds-should-be-opposed/.) 

>From the chat:

Rubens Kuhl: Although not always mentioned, closed generics can bring inovation as well to the DNS. .frogans is one example of the usage type that can go in that direction. 

Paul McGrady: @Kathy - I love him, but Michele's business is selling second level domain names, so closed generics are contrary to his business model, but that doesn't make them against the public interest

Susan Payne 2: the difficulty is that all of these arguments assume that all we want are a whole series of .com alternatives.  where is the innovation in that

Liz Brodzinski: +1 Susan

Rubens Kuhl: So the question is how to close the door to misuse without forbidding possible good uses. 

Paul McGrady: @Kathy - no competitors were blocked out of closed generics - all were welcome to apply for them

Rubens Kuhl: Also of notice is that most of the anger against closed generics came specifically regarding .book. 

Kathy Kleiman: @Paul - of course we are closing off competitors -- to basic generic words that no one would be able to trademark as generic to their goods, services and industries.

Kiran malancharuvil: Agree with Paul and Susan Payne 2 (identity theft??)   

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