[Gnso-newgtld-wg-wt2] Actions/Discussion Notes: Work Track 2 SubTeam Meeting 02 March

[Julie Hedlund]

Dear Sub Team Members,

 

Please see below the action items and discussion notes captured by staff from the meeting on 02 March.  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 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 02 March

 

1.  CC2 Questions (slides 4-8) -- Any questions about the questions? [None]

 

2.  Closed Generics

 

Background (slide 10) -- What is a "closed generic"? -- is referred to in hte community as a "TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit".  Also see definition of "generic string" in the Registry Agreement Specification 11.3.d.

 

Background Information, Cont. (Slides 11, 12, 13, 14, & 15)

 

-- No reference to closed generics in GNSO Policy

-- No reference in the Applicant Guidebook

-- Registry Agreement Specification 11.3.d

-- Public Comment report: https://www.icann.org/en/system/files/files/report-comments-closed-generic-08jul13-en.pdf 

(See summary on slide 13)

-- Where are we now?  NGPC requested in their 06 June 2015 meeting that the GNSO include the issue of closed generics in this PDP.

-- Exceptions to the RA that allow for "Exclusive Use" (Slide 15)

-- Registry qualifies as a "Brand TLD" as definined in Specification 13 as a string (Slide 15)

 

Million Dollar Question: (Slide 16): Should there be restrictions around exclusive use of generic TLDs?

 

-- Point out that whether we decide to allow or not allow we need to account for certain things that have happened -- such as .food granted under Specification 13.

-- Should decide how to allow exceptions. Board has asked for a policy for the next round.

-- One of the options is to say "no, we are fine with what the Board did with a tweak here or there."

-- Amazon's view: restricting closed generics raises the issue of what is closed and what is generic.  Could put ICANN in the position of deciding that some business models are better than others.  Also could hinder innovation, such as using a TLD as an incubator for new business models.  See: https://forum.icann.org/lists/comments-closed-generic-05feb13/pdfgIbbsgX7WQ.pdf.

-- Questions: 1) If we allow closed generics are we getting ICANN into regulation of certain business models? 2) What is the difference between closed generic TLD and a generic TLD that has a ton of restrictions?

-- Comments: In the last round they were not allowed but there was never a good reason given.  Governments maybe had competition concerns, but could not spell out what that could be.  GAC advice that modified a huge portion of the AGB after the AGB was supposed to be fixed.  Doesn't seem to be any reason to continue with the way the last round turned out.

-- What if we keep what we have today -- keep Specification 3d as is?  IIt would be a bad idea of ICANN being in the way of healthy competition.  We need to look at the broader issue.

-- The Board punted to the GNSO.  There wasn't really a rationale.  Important that the PDP examines this issue.

-- Almost impossible not to regulate.

-- Question #1: What is the basis upon which ICANN has the power to decide which business models make it and which don't?  Answer: If they don't have any legal basis to restrict closed generic that answers the question.  But if there is a legal basis what are the perceived harms?  

-- Don't know of any research that ICANN did.   Could see if there was a Board memo that was public, but probably because it came in as GAC advice -- rather than disagreeing with the GAC tried to find a way to say yes.  Did not say no, but put applications on hold until the model was changed.  Somehow .food got through.

-- The distinction with .food it was a Spec 13 application.  It was a valid trademark registration by the US PTO.  Be cautious about suggesting that we/ICANN should be imposing its judgment over that of national trademark offices.

-- Strongly urge going back to Paul's suggestion to go back to questions we need to answer.

-- We need to ask the questions, but be aware of who we will ask.  Need to ask an outside law firm, not ICANN.

-- On research: We may have to ask for research to be done, but not sure this question involves a legal issue.  It is policy based.  But could be a competition law issue.  Need to narrowly tailor questions.  Look at the pros and cons, what are the benefits and harms.

-- Maybe we don't have an understanding of what is a closed generic.

 

Action Item: Need to come back and look at what is a closed generic.  There is a definition in Specification 13 and Specification 11.  Categorize the harm and benefits.  Prepare something for the next call.

 

>From the chat:

Alexander Schubert: The AG should exclude generic keyword strings!  Example: makeup - L'Oréal - totally unused.  Some corporate platers buy these strings up to close them down...You will also see registries who will rather keep ownership of all domains and "lease" them out; instead of having regular registrations. Which kills all rights for domain registrants.

Cheryl Langdon-Orr (CLO): of course they do and that as a model for them is Ok... but it does have a chilling effect on others and contributes nothing to diversity trust competition or choice -- that last comment was re buy and shut down name use.

Cheryl Langdon-Orr (CLO): yes Jeff that is a real risk IMO.

Karen Day: @CLO - I disagree as regards stifling competition, it may well 'chill' competition amongst the buy/sell side but it infact encourages competition between business and those who can innovate in the domain space by offering a tangible reward for developing a viable innovative business model.

Susan Payne: correct: Paul - Board chose not to make really a decision on this which is why they tasked GNSO to form a policy for future.  No-one in round one could proceed as a closed generic but they were given option eventually (after most had already agreed they would open up) to go on indefinite hold pending this PDP.  

-- Need to look at where the law might apply and we need to have a basis for our policy.

-- What is the harm?  Answer could be in the public comments -- that closed generics will harm the open Internet -- could collect the pros and cons.

Karen Day: @Alexander the .makeup space isn't being used b/c L'Oreals model was not operate an open registry.  Perhaps it would be a very cool space if they hadn't been forced to open??

Kristina Rosette (Amazon Registry): Here's the Amazon letter I mentioned:  https://forum.icann.org/lists/comments-closed-generic-05feb13/pdfgIbbsgX7WQ.pdf.

Paul McGrady: @Susan, except what the Board did was undo the decision that they had made to allow it when the AGB was published.

Cheryl Langdon-Orr (CLO): possibly @Karen, 

Kristina Rosette (Amazon Registry): +1 Paul

Susan Payne: @Paul - Yes, I agree the AGB did not prohibit 

Alexander Schubert: If it is not a generic keyword based string: operate it like you want. But category killer keyword strings should not serve to cut out your competition or have some fishy business models which deprive registrants of certainty. Closed Generics WILL be abused - big time. Yes: There MIGHT be some benefitial cool new business models. I doubt it: There were zero new business models in 2012. Likely this simply opens the floodgates to abuse.

Karen Day 2: +1 Kristina - there is too much inconsistancy as is.

Kristina Rosette (Amazon Registry): @Alexander: I think it's too early to say that zero new business models came out of the 2012 round. 

Alexander Schubert: Say 99% run the .com model :-)

Cheryl Langdon-Orr (CLO): that is a risk that parts of the ICANN community will be most concerned about @Alexander... yes

Alexander Schubert: Then: If someone needs a closed gneric for a category killer keyword string - let them propose their model - give the Internet community opportunity to oppose it!

Kevin Kreuser (GoDaddy): Dish 

Paul McGrady: An 8 year hold is a death sentence.  Let's not pretend that what the Board did was anything other than killing off closed generics...

Kristina Rosette (Amazon Registry): @Jeff: You can figure it out by reading the Spec. 13 application. That's public.  Well, you can see what they argued. 

 Not what ICANN's rationale was. 

Paul McGrady: The difference between now and then is that the USG was part of the GAC that advised to kill off closed generics.  The USG was, at the time, the final say in what got in and what did not.  There would have been no point in allowing closed generics to proceed if the USG was not going to let them in the root in any event.  However, the USG is no longer in that role.

Karen Day 2: Guess we need to ask Apple too then @Jeff - it's a brand.

Michael Flemming: I think Jeff is aware of that. He just wants us discuss about those brands that overlap with generic strings.

Alexander Schubert: ICANN provides registrants with certain rights! If domains aren't anymore REGISTERED (via registrars) then all these rights are gone. The domain is then "leased" - maybe according to some Offshore legal entity that you can't even sue in the U.S.!  Does the registrars constituency know that they are about to be thrown under the bus? Maybe someone should tell them....

Mary Wong: @Paul, what would be the specific legal question(s) to be asked?

Susan Payne: OK - Question to get ball rolling: Is there a harm to allowing closed generics and if so what is that harm?

avri doria: what the harm is, or what the harrm is beleived to be.

Karen Day 2: That wasthe percieved harm, but maybe Susan is asking do we have evidence of actual harm?

Mary Wong: Going back to basics - does the group have a common understanding of what "closed generics" means as a term and category?

Alexander Schubert: ONE SImple example: In the current registry-registrar-registrant model a domain is registered; and can be renewed infinitely. The registrant invests money and builds a brand around the domain. In the closed generics model a registry could simply retain the right to "sell" the domain at any time - and cancel the lease! So if you make books.com a big brand - the registry can kind of sell the besis of your brand! Just an example how registrants rights might be violated!

Heather Forrest: In my mind this all feeds into a broader question, which is: what do we do with those areas of the Guidebook that progressed/changed after the GNSO PDP recommendations were agreed upon (ie, through GAC/Board change)?

Paul McGrady: @Mary Wong, happy to help think through your question and get a more robust/specific response, but what immediately comes to mind is: Does the post-IANA transition ICANN (the corporation) have a legal basis to restrict the nature of the business models adopted by gTLD registries other than requiring registries to comply with applicable law? 

Kristina Rosette (Amazon Registry): Many of us have long flights coming up in which we could read the public comment report. ;-)

Karen Day 2: @Mary, I think that is a debatable question as some will argue that "generic" only applies to those specific tlds that the GAC called out.

avri doria: i have heard of no actual harm.  Food is a good example.  while it is a brand, it looks like a close generic and if being run as a closed generic, has there been any harm?

Mary Wong: @Karen, that's why staff is asking the question - if there is no agreed understanding of what the term means, it's hard to see how conclusions can be reached via consensus.

avri doria: and are there other cases of branded generic words that are being run closed?

Paul McGrady: @Jeff, I think we need to answer the basement question first.  Can the new ICANN actually do this (harm or not)?

Jeff Neuman: Paul - I dont think that we can get into the overarching questions.  @paul - that question would apply to everything ICANN does.

Paul McGrady: @Jeff, how so?

Jeff Neuman: I guess their answer would be that they can do anything that anyone contractually agrees with.  Does ICANN have the right to require PICS? Does ICANN have the right to require a public whois? What I am saying is that it cant be for our group to research whether icann has the right to regulate.

Paul McGrady: @Jeff, its not the right to regulate that is the concern.  It is the right to exclude that is the problem being discussed.  

Jeff Neuman: By signing the Applicant Terms and conditions, every applicant gives ICANN the right to exclde for any reason (which I do not agree with).  But that is what they would argue.

Paul McGrady: @Jeff, if I don't want to sign the Applicant Terms & Conditions, where else can I "buy" a TLD registry contract?

avri doria: For the moment can we accept there is as of yet no proof of harm?

Alexander Schubert: This is how for example .de.com domains are sold in a way that completely "feels" like a "normal regisration" - but if someone buys "de.com" up -- all registrantions are gone...  https://www.namecheap.com/domains/registration/cctld/de-com.aspx

Michael Flemming: Yes, Avri. So we will ask for it. 

 

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