[Gnso-newgtld-wg-wt5] New gTLD Subsequent Procedures PDP: Work Track 5 Comments
Marita Moll
mmoll at ca.inter.net
Tue Jun 26 13:46:58 UTC 2018
Hi Greg. I object to your painting all the positions you disagree with
as positions held by Alexander. That's not just misleading, it's false.
The positions you disagree are supported by quite a few people. Throwing
them all into one box labeled "Alexander says" (you used the name at
least 10 times) is a way of discrediting ideas by pinning them on a
single individual. It is a well known technique in political discourse
when you are trying to discredit someone.
Let's not do that here.
Marita
On 6/25/2018 7:30 PM, Greg Shatan wrote:
> Joe,
>
> I want to clarify some areas where Alexander's characterizations of
> the group's work to date don't appear correct. In particular:
>
> * We have *not* spent our time discussing practically nothing else
> than trademark-related issues specifically. We *have* spent a
> great deal of time discussing a more general topic -- are
> place-name meanings somehow superior to ALL other meanings? This
> includes trademark meanings, surnames, nouns that are not proper
> nouns (BAR, SPA, ROCK), communities (aside from the community of
> the place(s) with that name. Casting this as a trademark
> discussion misses the point entirely.
>
> * It is not an accepted concept that the 2012 AGB is the starting
> point of our work (vs. the policy recommendations that preceded
> it; after all, this is a "policy development process." It is
> *certainly *not a base in the sense of a "floor" changes to the
> 2012 AGB could go in any direction – and in many cases, there's no
> agreement on whether any particular change would be an "improvement."
>
> ·Alexander says the 2012 AGB protected "very few geo names." ISO
> 3166-2 protected nearly 6,000 names. Capital cities protected roughly
> 250 names. The UNESCO regions and subregions (ignored by Alexander)
> add another 35 names (only 2 of which are registered TLDs, contrary to
> Alexander's email). That's a "protect list" of roughly*6,285* names.
> I would not call that "very few."
>
> Each of these was blocked unless the relevant governmental authorities
> granted a letter of consent/non-objection (at their sole
> discretion). Alexander claims "And so far nobody has really much
> challenged these rules." *_Nothing could be further from the truth._*
> There have been repeated challenges to continued blocking based on
> the ISO-3166-2 list. To the extent capital cities have not been
> challenged, I believe that has been based on the hopeful idea of
> compromise to reach consensus. Subregion names have not really been
> discussed one way or the other.
>
> Of course, non-capital cities are also protected -- this adds
> *4,400-50,000* more places, yielding a total between approximately
> *11,000* names and more than *56,000* names. That certainly cannot be
> "very few."
>
> All of these issues are still open items. So, it's incorrect to say
> that "The ONLY remaining 2012 AGB geo-name category was “city names.”"
> There has been a tendency by some to try and close discussions with
> premature declarations of victory (somehow it never works the other
> way...). This should be seen in that context.
>
> This really has nothing to do with free speech rights of citizens --
> if they want a second level domain, they can get one. If their city
> wants a TLD, they can get one. This is about blocking names from use
> and giving one or more governments the power to decide what speech
> will be allowed. This is the opposite of free speech.
>
> The idea of giving reservation/blocking rights to governments based
> on "potentially hundreds of thousands qualifying “city names”" seems
> like a terrible blow to free speech, a form of "prior restraint" on
> speech, which is particularly disfavored. Of course, nothing
> will stop any city from getting a TLD related to their name now, or in
> the future (even if their first choice is not available).
>
> Since this isn't really about "free speech rights for cities" at all,
> I'll skip responding to those items, except to note that the so-called
> "free speech" here is a peculiar invention: the ability of
> citizens "to express themselves through a domain name based on their
> city name." Since the TLD will not exist because of this rule, the
> ability to use such a domain name doesn't exist.
>
> Similarly, hypotheticals that are full of false assumptions and one
> sided presumptions intended to paint a David vs. Goliath picture don't
> need further response, since they do not illustrate any general
> principle. (As for the good people of Tel Aviv, they would likely
> prefer "Tel Aviv" in Hebrew.)But it is good to know that Alexander
> thinks the 2012 rules are "horrible."
>
> Alexander dismisses the whole complex issue of "intent" based on a
> false premise -- that because the registrars will sell the domain
> names, that the registry's intent regarding the domain name doesn't
> matter. First, this obviously ignores .brands, who will not be
> selling domain names at all. Second, there are many cases where TLDs
> are restricted as to the type and scope of use by registrants -- not
> least, many .cityname TLDs!
>
> Whether brands have rights (which of course they do) is really not an
> issue here. Brands are not looking to exercise any rights here to
> stop other applications, nor have brands asserted superior privileges
> over other legitimate applicants. Again, I won't pick through all of
> the baseless assumptions and pejorative terms used to cobble together
> an argument.... But I will say the idea that this is a "culture war"
> doesn't hold water (and certainly is not how this has been framed
> generally, if you are looking to catch up on the work of the group.
>
> As for the proposed "compromise" -- it's no compromise at all, since
> it starts with a false premise -- that this is a "free speech"
> question for "citizens." The idea that the has been "broad support"
> for the "solution" proposed is similarly incorrect. This is certainly
> the solution Alexander has repeatedly brought up, but there is no
> basis to say there is broad support for it (though there is some
> support). Getting rid of intent limitations without getting rid of
> blocking privileges is no compromise at all.
>
> Once again, this proposal is supported by inaccurate and unsupported
> statements.
>
> Close to zero burden? Applicants would have a higher burden than
> before -- the requirement to bargain for the blessing of a government
> even where their intended use is not associated with that place.
>
> The assumption that a brand that shares a name with a big city
> "deliberately chose it" to "profit from the image" of the city and
> that it's living off of it or "piggybacking' on it is phrased
> pejoratively, but not in any way proven. Building on this concept, we
> get into invented concepts without any basis in law or facts: that
> there are "certain obligations" a brand has to a city it shares a name
> with; that the brand is some sort of “co-brand"; that the “real brand”
> is the city brand. These are incredibly fact specific assumptions,
> and even if the facts are as stated, that creates no obligations or
> privileges. Furthermore this ignores the issue of generics and other
> applicants with other issues. I guess there's no pejorative fable to
> tell about these applicants...
>
> The so-called "current WT5 suggestion" is being "floated" largely by
> Alexander. In reality, it's a lead balloon and NOT workable. I would
> "float" a different "WT5 suggestion" as a compromise:
>
> * The status quo did not work and it is not fine. (Perhaps it
> worked well for the public authorities; there are numerous
> applicants that had nightmare scenarios (e.g., TATA)
> * Continue the "intent" limitation in the category “city” and apply
> the same limitation to subnational regions. (This is a big
> compromise, since it would really be much more appropriate to deal
> with these issues on an objection or "after-the-fact" basis)
>
> That is my "reach across the aisle" on this point. I am also
> passionate about the rights of people and public benefit -- but
> "geo-uses" does not have a monopoly on either point.
>
> As for looking at "geo-names not previously protected" -- I think it
> would be far more fruitful to start looking at "after-the-fact"
> solutions for public authorities that feel they actually have been
> harmed rather than continuing to try to use blocking privileges as a
> solution.
>
>
> Greg
>
>
>
> On Mon, Jun 25, 2018 at 4:05 AM, Alexander Schubert
> <alexander at schubert.berlin <mailto:alexander at schubert.berlin>> wrote:
>
> Dear Joe,
>
> thanks for your contribution! You are stating that you haven’t
> been actively involved in the past but observed. Have you read all
> emails and been in all calls? I am asking because you also state:
>
> */“……the discussions seem to have only mildly addressed the
> thousands of business names around/*
>
> */ the world that are trademarked, that already contain geographic
> names, cities and territories….”/*
>
> Well: For MONTH on end we did practically nothing else than
> discussing precisely that topic. In endless email exchanges
> (probably a thousand) and phone conferences. This topic has been
> THE priority so far. Let me summarize from my view:
>
> ·We work off the 2012 AGB as a base – and try to identify areas of
> improvement
>
> ·In the 2012 AGB very few geo names have been protected, namely:
>
> oUnesco regions (irrelevant as all are assigned as gTLD but “.europe”)
>
> oISO 3166 Alpha-2 national sub regions (which is why .tata wasn’t
> granted to the Indian TATA and why .bar needed an OK from the
> region BAR in ME - https://en.wikipedia.org/wiki/ISO_3166-2:ME
> <https://en.wikipedia.org/wiki/ISO_3166-2:ME>)
>
> oCapital cities
>
> ·All of the above require a letter if non-objection by the
> responsible Government authority – independent whether or not the
> applicant claims geo-use intent or not! And so far nobody has
> really much challenged these rules.
>
> ·The ONLY remaining 2012 AGB geo-name category was “city names” –
> with “city” not really very precisely defined. In the 2012 AGB
> applicants for strings identical to a city name needed Government
> approval (letter if non-objection). The only exception was a
> declaration of “non-geo name use”. That could be a brand, a
> generic term, or some “.xyz”-like fun theme: “.heyyou” - which
> might be an industrial center in China (I made that up).
>
> There are now two main concerns (those of brands vs. those who
> want to protect the free expression rights of city populations):
>
> ·There are potentially hundreds of thousands qualifying “city
> names” – and there is (as you mentioned) a sizeable overlap with
> so called “brands and generic terms!
>
> ·In the same time the citizens of sizeable and or important cities
> should have their free speech rights preserved: that is being able
> to express themselves through a domain name based on their city
> name – just like in the future most if not all big metropolises
> will offer that possibility!
>
> ·So if somebody would apply for “.telaviv” (officially Jerusalem
> is the capital of Israel) – but claim “non-geo use” (which might
> be a ruse) – then according to the 2012 AGB they would be assigned
> the TLD if there was no competition – OR they could drive up the
> public auction price in a bidding war against a potential city
> based non-profit that represents the city’s constituents but has
> no VC cash! Or worse: a financially strong BRAND could simply
> outbid the city based application and hijack the TLD! I am quite
> sure that the good people of Tel Aviv would be very unhappy – and
> I wonder how you would defend the horrible 2012 AGB rules to them?
>
> ·Plus: It doesn’t really matters what the registry “intents” – the
> registry is not offering domain names to the public, nor is it the
> registrant. It is the registrars who will offer it is a city gTLD
> – and it is registrants who will use it for that purpose – and
> there won’t be any obligation by ICANN to prevent such use!
>
> ·Some here claim that “brands” have “rights” – while citizens of
> cities have none. Others claim that this constitutes a travesty –
> as most city name based brands are BASED on the connotation with
> the city – and ICANN’s mission is to foster PUBLIC BENEFIT (as in
> helping citizens executing their right of free expression) and NOT
> helping “brands” to squat on city resources! What is more
> important: the “right” of a small brand – or the rights of
> hundreds of thousands of citizens in a city?
>
> ·The entire thing is a question of “culture” – and like in any
> OTHER culture war both sides are very divided and each is
> steadfast convinced to have possession of endless wisdom (me
> included).
>
> ·As this is not an “election” where a “majority” decides what the
> future culture shall be (essentially picking a “winner” – and
> creating a big pool of “losers”) – we will need to find an
> agreeable compromise!
>
> ·The compromise needs to:
>
> oProtect as many citizens in as many cities as possible from
> losing their right of free expression by using city name based
> domains!
>
> oBut to not overprotect that category – because it would put too
> many burdens on brands and generic term based applicants!
>
> ·I am lobbying for a certain workable solution – and it seems
> there has been broad support for it:
>
> oIn order to prevent citizens from losing their free speech and
> free expression rights permanently we do strike the “non-geo use”
> clause without replacement! (Don’t get a cardiac arrest – read on).
>
> oSo if somebody applies for “.telaviv” and claims it would be a
> new social network like TWITTER or a “.xyz” clone – they would
> need to get the city’s approval first – to PROTECT the citizens
> free speech and free expression rights which are very important!
>
> oTo reduce this new burden there should be a “cutoff” implemented:
> only if the city meets a certain requirement (e.g. in population
> size) the “non-geo use” would be replaced. In other words: if a
> tiny city of no special relevance has a name identical to a
> generic term – applicants for such generic term do NOT have to
> approach the city government IF there is no intent for geo use!
> (The Government of such smaller city will STILL have to be
> approached if the gTLD is intended to serve the city).
>
> oSuch cutoff could be a population size – the exact measures would
> have to be determined! Numbers between 100,000 and 500,000 have
> been floated, and/or percentages of country size! Once we agree on
> the cutoff rule; the exact measures could be defined later! First
> qualifying, then quantifying!
>
> ·The outcome would be that brands and generic term based
> applications have close to zero extra burden to carry; while in
> the same time the free speech rights and rights of expression for
> hundreds of Millions of people would be preserved in accordance
> with ICANN’s mission! In the very rare cases of a brand having
> deliberately chosen a “big city” name (because they want to profit
> from the image the citizens of that city have worked hard to
> create over time) – then sorry: but nobody forced you to piggyback
> on the city’s fame: your own decision; all legal; but you will
> still need to meet certain obligations. You are just a “co-brand”;
> the “real brand” is the city brand; and you are living “off” it.
> Then go and get their permission! But honestly: if we require only
> cities with more than e.g. 500k people to be specially extra
> protected (no “non-geo use clause”) – what is the number of brands
> impacted? Could somebody run a brand name database against a big
> city database? And not every single US $200 TM registration is a
> “brand”!
>
> *So if the 2012 AGB is the base; the current WT5 suggestion is
> being floated:*
>
> ·*Keep everything like it is! It worked and it is fine!*
>
> ·*In the category “city”: elevate cities that meet a certain
> requirement into the same status as subnational regions or capital
> cities! (Meaning: no non-geo-use clause)*
>
> ·*And indeed: a city with 500,000 people should be AS MINIUM as
> important as the average capital or a subnational region! Why
> should it be LESS protected, makes no sense!*
>
> The disciples of both faiths are requested to reach over the isle
> and compromise. It doesn’t work in politics in many countries (I
> am not singling any particular country out) – it doesn’t work in
> Religions most of the times. We at ICANN could proof that WE can
> do it. So let’s simply do it. Both sides have ENDLESSLY often
> explained their views (and I am guilty of having done so one too
> often: apologies! I am passionate when it comes to rights of
> people and public benefit!).
> Now it is time to form the compromise.
>
>
>
> A simple to implement suggestion has been made. Is it workable?
>
> Anyone in?
>
> Btw: we are talking CITY names. Once we have a solution for that
> specific category we can look at geo name categories previously
> not protected. But that will be a SEPARATE category – and should
> not be conflated with the city name category!
>
> Thanks,
>
> Alexander
>
>
>
> *From:*Gnso-newgtld-wg-wt5
> [mailto:gnso-newgtld-wg-wt5-bounces at icann.org
> <mailto:gnso-newgtld-wg-wt5-bounces at icann.org>] *On Behalf Of *Joe
> Alagna
> *Sent:* Friday, June 22, 2018 9:12 PM
> *To:* gnso-newgtld-wg-wt5 at icann.org
> <mailto:gnso-newgtld-wg-wt5 at icann.org> Work Track 5
> <gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org>>
> *Subject:* Re: [Gnso-newgtld-wg-wt5] New gTLD Subsequent
> Procedures PDP: Work Track 5 Comments
>
> Hi All,
>
> Although, because of time obligations, I have not commented, I
> have been an observer of this track since the beginning and
> recently converted to member so I could make a comment.
>
> I would like to pose several questions and considerations. Please
> accept my apologies if some of my comments have already been
> discussed since I have been unable to join the telephonic
> discussions. I have perused the ongoing document you are
> developing within the limits of my time.
>
> These questions and considerations are meant in the spirit of
> contributing and stimulating discussion, not necessarily
> advocating a position. The work you are doing is important.
> Please note that these are my own observations and comments, not
> necessarily reflective of the company I work for:
>
> 1.Some members are advocating to reserve city and territory names
> as rights or even as owned by the cities or territories. I’ve
> always understood city and territory names as tools to be used by
> the public for geographic purposes. In fact, unless I missed it (I
> may have), the discussions seem to have only mildly addressed the
> thousands of business names around the world that are trademarked,
> that already contain geographic names, cities and territories.
> You can look at any database of trademarks from any jurisdiction
> around the world and likely find hundreds of existing trademarks
> that contain geographic strings. Strings like this are highly
> important as parts of business names, identifying the locations of
> service areas for example. These include names like Swiss Air and
> American Telephone and Telegraph. I use that second example to
> show how long-standing this tradition is. This fact seems
> unacknowledged so far in our discussions. I fear that we are
> ignoring a hundred years + of tradition and precedence. It may be
> an important exercise to see how many trademarks already exist in
> various places that contain geo-type strings.
>
> The history of registries suggests that they may either be public
> or private, so it seems that the principal of neutrality is
> important when considering the type of entity applying for a string.
>
> 2.There is a theme of debate about who gets preference regarding
> geographic indicators in new strings, government entities or
> private entities. My experience, at least in the United States is
> that many government entities do not care about their geographic
> names (and for that matter, their email addresses). They seem to
> be perfectly happy using what I would consider seriously outdated
> URLs and email addresses.
>
> These government entities already have the right to use a .gov (or
> a .edu) domain name and email address, a right that any private
> citizen or public company does not have. Yet they prefer not to
> use them.
>
> The example I have in mind is the several thousand public schools
> across the United States who prefer to continue using long URLS
> and email addresses in the .edu or .us space. A very typical
> teacher or administrative email address looks like this:
>
> *_MyKidTeachersFirstName.LastName at LaUnifiedSchoolDistrict.k12.ca.us
> <mailto:MyKidTeachersFirstName.LastName at LaUnifiedSchoolDistrict.k12.ca.us>_**
> *
> They don’t seem to want to change this. Wouldn’t it be better and
> more convenient for them to use something like:
>
> *_MyKidsTeachersName at LAUnified.gov
> <mailto:MyKidsTeachersName at LAUnified.gov>_*(or .edu) anything less
> than a fourth level domain name? So…
>
> 3.Should not ICANN remain completely unbiased as to who gets the
> ability to apply for specific strings related to names in the DNS?
>
> a.Since many government, city, and territorial entities are not
> engaged nor involved in this process,
>
> b.Since both private and public entities can be good or evil, and
>
> c.Since ICANN has a charter of a bottom up, community driven,
> process, not the creation of laws or rights
>
> Why should ICANN, in any way confer a preference to either type of
> entity? In fact, some in this discussion seem to be suggesting an
> assumed “ownership” of TLD strings, a right that I think can only
> be conferred on a hyper local level by the proper legal entities,
> certainly not ICANN, therefore,
>
> 4.Shouldn’t we be careful not to try to confer preferences or
> “rights” at all? In fact, shouldn’t we not even try that? It
> seems that we do not, and probably should not have that power.
>
> 5.There has been discussion that any applicant should comply with
> local laws in areas, cities, or territories where a string name
> where they would like to do work is relevant. /I would agree with
> that general principal/ since it respects local laws, makes sense,
> and doesn’t try to rule the world.
>
> 6.Shouldn’t we _not_ assume that every government entity around
> the world cares about what we are doing here. In fact, I am sure
> that most don’t care – at least as much as we do. If they did
> care, they would be involved.
>
> We know that TLDs are important and we should care about and
> anticipate how geographic names affect cities and territories
> around the world. We should also care about how a country, city,
> or territory’s rights will affect any applicant in the future. But
> we should not show a preference in our policy, therefore, four
> suggestions:
>
> a.A general preference for non-objection from geo-entities and
> curative solutions in policy over preventive solutions for
> potential geographic strings; not assuming preferences that more
> often than not, don't exist
>
> b.A more conservative approach to our scope in terms of the places
> we define
>
> c.Recognizing that our contracts are time limited – We should
> recognize that our contracts are for a specified period, at the
> end of which, a government entity may have the option of becoming
> engaged and maybe add something to the contract that specifies
> this rather than an assumption of renewal for applicants. This
> would allow for worthwhile private investment (maybe a five or
> ten-year period) and allow review by any public entity after a
> period of time, to become involved if they then care to.
>
> d.There should be no limits on how many applications may be filed
> on behalf of a single entity (private, corporate, or government).
> If we do this, here also, we limit the capital involved in the
> process and we limit the chances for success of applicants and of
> this program in general.
>
> Finally, thank you to all of you, on all sides, for your
> discussion and participation. I believe this discussion is an
> important one and I know the sacrifice you are making in terms of
> your time. I only wish I was able to contribute near as much time
> as all of you have. Thank you!
>
>
> Joe Alagna
>
>
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