[Gnso-newgtld-wg-wt5] New gTLD Subsequent Procedures PDP: Work Track 5 Comments
Greg Shatan
gregshatanipc at gmail.com
Tue Jun 26 16:51:01 UTC 2018
Marita,
Thank you for helping me clear up any confusion!
Greg
On Tue, Jun 26, 2018 at 11:49 AM, Marita Moll <mmoll at ca.inter.net> wrote:
> 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> 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-bo
>>> unces 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
>>>
>>> _______________________________________________
>>> Gnso-newgtld-wg-wt5 mailing list
>>> Gnso-newgtld-wg-wt5 at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
>>>
>>
>>
>>
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