[Gnso-newgtld-wg-wt5] New gTLD Subsequent Procedures PDP: Work Track 5 Comments
Greg Shatan
gregshatanipc at gmail.com
Tue Jun 26 15:54:34 UTC 2018
Marita,
Please don't jump to conclusions. I was responding to Alexander's email,
but I didn't want to do "inline" responses, since I find those tendentious
and tiresome unless absolutely necessary. So I needed to say what part of
his email I was responding to. This was a way to show what I was
responding to, but was not in any way an attempt to "discredit" the
positions or Alexander. At no point did I say that any of his positions
were held only by Alexander. I don't think it's appropriate when we are
discussing substantive issues to make claims about how many or how few
people support a given position. I will leave it to our co-chairs to deal
with which positions are getting "traction" or not or, better yet, where
"common ground" can be found.
I could say that your email was an attempt to discredit me and the
positions I put forward, but that would be silly. I hope you will
understand that your perception of my actions and intent was incorrect. Of
course, there is no problem with an honest misunderstanding, and I will
assume that was all it was.
Best regards,
Greg
On Tue, Jun 26, 2018 at 8:46 AM, Marita Moll <mmoll at ca.inter.net> wrote:
> 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> 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:
>>
>> o Unesco regions (irrelevant as all are assigned as gTLD but “.europe”)
>>
>> o ISO 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)
>>
>> o Capital 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:
>>
>> o Protect as many citizens in as many cities as possible from losing
>> their right of free expression by using city name based domains!
>>
>> o But 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:
>>
>> o In 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).
>>
>> o So 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!
>>
>> o To 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).
>>
>> o Such 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]
>> *On Behalf Of *Joe Alagna
>> *Sent:* Friday, June 22, 2018 9:12 PM
>> *To:* gnso-newgtld-wg-wt5 at icann.org Work Track 5 <
>> 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
>> <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 <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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>
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