[Gnso-newgtld-wg-wt5] New gTLD Subsequent Procedures PDP: Work Track 5 Comments
Marita Moll
mmoll at ca.inter.net
Tue Jun 26 16:49:52 UTC 2018
Greg -- thank you for the response. Of course, I was not trying to
discredit you. But you realize, of course, that e-mails can be easily
misinterpreted -- not just by me, but by the couple of hundred people
signed up for this discussion. So, I am just seeking caution in this
respect.
Marita
On 6/26/2018 11:54 AM, Greg Shatan wrote:
> 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
> <mailto: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 <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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