[Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

Sat Jul 11 20:35:23 UTC 2020

Kathy, Paul,In the 2007 gNSO PDP the issue of "closed generics" has not been defined; but was left open. Accordingly the 2012 AGB was reflecting this policy vacuum; which forced the board to intervene.After the 2012 application round the Board gave clear instructions to the gNSO to develop new policy advice. A mini-micro "2006/2007"-style PDP: just for the very narrow aspect of "closed generics".We are right now exercising the "2012-AGB revision process"; it is authorized to revise the 2012 AGB; it is bound in this exercise by the 2007 PDP. This current forum has explicitly stated that it will abstain from leaving the 2007 policy advise picket fence.As a result this current forum is not authorized to create new policy advice.I guess we all hoped that somehow we all agree to a solution - then implement it; and hence avoid a formal (partial) new PDP.It seems we have now reached agreement within this forum that this 2012-AGB-revision will not come up with a solution.That's not a problem at all.The board didn't require this forum to solve the problem. It instructed the gNSO to engage in a policy development process leading to new policy advice (in regard to the issue of "closed generics").So I suggest we stop wasting precious time: The gNSO has only about 1 year left to create new policy advice regarding the simple question: how shall closed generics be treated. We here are out of depth and need to let this go.The NGPC specifically required the gNSO:   "A Policy Development Process with respect to operating exclusive generic strings in the 'public interest' should be undertaken by the community. Policy issues on 'closed generic' TLDs should be resolved through the multistakeholder process."This group here does not have the mandate to conduct a PDP that results in policy advice. We have concluded that we can provide no help, draft or suggestions. So let's simply throw the issue of "closed generics" into a tiny black box: "This working group could not resolve the issues around 'closed generics' and will therefore make no suggestions to their treatment. The gNSO will engage in a PDP - and upon their policy advice a final regulation will be implemented at such time it is available."Closed generics aren't regulated now. So there is nothing for us to say about it. We can continue our 2012 AGB review (leaving closed generics in the black box) - and once the formal PDP creates a solution for closed generics: we add it afterwards. So these are the steps the gNSO (not this group here) will have to initiate:"The rules for the revised GNSO PDP are outlined in Annex A of the ICANN Bylaws and the PDP Manual. In addition, the graphics shown below have been developed to facilitate understanding of the different steps of the PDP which include:Issue IdentificationIssue Scoping (What is the issue?)Initiation (Moving ahead with a PDP or not?)Working Group (Exploring the issue in depth and developing recommendations)Council Deliberation (Assess / affirm WG recommendations)Board Vote (Final approval)Implementation"Can we get this done within 3 month? The benefit of a new (very narrow defined) PDP: there is no "fallback solution". We are forced to create a compromise. It's completely seperate from our scope & group here.Who can initiate a PDP? Could ALAC do that? Is someone from ALAC reading this? Thanks,AlexanderSent from my Samsung device

-------- Original message --------
From: Kathy Kleiman <kathy at kathykleiman.com> 
Date: 7/11/20  18:46  (GMT+02:00) 
To: "McGrady Paul D." <PMcGrady at taftlaw.com>, Rubens Kuhl <rubensk at nic.br>, Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org> 
Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic	Text 

Trust me, I understand the frustration. Perhaps more than anyone.But we do not get to make up our own facts. The Board has acted, and the GAC has acted. We must operate within those constraints. Best, Kathy ----- Original Message -----From: "McGrady Paul D." <PMcGrady at taftlaw.com>To:"Rubens Kuhl" <rubensk at nic.br>, "Marc Trachtenberg via Gnso-newgtld-wg" <gnso-newgtld-wg at icann.org>Cc:Sent:Sat, 11 Jul 2020 12:18:37 +0000Subject:Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
+1 Rubens.  We can’t substitute the facts as they are with Kathy’s view of how they should be. 

I too am disappointed that this WG did not reach agreement on an improvement to the status quo as the Board asked us to.  Some of us tried by introducing thoughts on what a so-called closed generic in the public
 interest would look like.  But, those ideas didn’t stick.  Our failure to come to an agreement doesn’t make the fact that we didn’t, somehow, “inaccurate.”  What happened, happened, and editorializing about what that means is just another way of trying to
 get an individual view of what the status quo is adopted by this group.  We have been over and over and over this and I, very kindly and respectfully, resist this latest attempt.

Best,
Paul

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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org>
On Behalf Of Rubens KuhlSent: Friday, July 10, 2020 3:39 PMTo: Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org>Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

On 10 Jul 2020, at 17:15, Kathy Kleiman <kathy at kathykleiman.com> wrote:

Hi Jeff,

I'm sorry, but the language below is not accurate, and it must be.  There is no way this group can agree to allow Closed
 Generics outside the public interest framework required by the GAC in its Advice. Further, absent our agreement (and the GNSO’s approval), we have not meet the requirements of the Board's resolution on Closed Generics, and the bar does not simply "time out."

The group haven't agreed on anything, so... 

I offer the language below as a substitution -- to accurately reflect the two “Closed Generic” policy requirements before
 this WG and the GNSO --  the 2015 Board Resolution AND the GAC Advice.  

No Agreement: The Working Group was unable to
 come to agreement on a policy that meets the GAC Advice requirements for “exclusive registry access for generic strings serving a public interest goal.”  In keeping with the requirements of the 2015 Board resolution, as clarified in the Rationale, the GNSO
 must “inform the Board on a regular basis with regards to the progress on the issue.” It has not done so. 

“The NGPC [ICANN Board New gTLD Program Committee] is also requesting that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal
 as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. The President and CEO should provide the GNSO with information needed to
 support this request.” https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en

Accordingly, in the absence of agreement by the Working Group on any new policy consistent with the GAC advice on public interest goals, the status quo is that Closed Generics would
 not be allowed in subsequent rounds in line the Board’s resolution. The GNSO has not formulated or approved a policy in accordance with the Board’s wishes, as stated in the Rationale, and has not reported any progress to the Board, as requested in the Rationale.
 Therefore, the Board’s resolution holds until such a policy is formulated and formally approved by the GNSO. 

It's already known that we can't agree on what the status quo is, so retrying it one way or the other doesn't cut it. 

Rubens

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