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

Mon Jul 13 04:23:19 UTC 2020

All,

I've been following this thread and I've gone back to look at the Beijing
Communique and the Board Resolution and Rationale and think this through.
I apologize for the length of this post, but at least it's my first in this
thread.

I think the Board was attempting to take a nuanced position. The Board did
not exactly adopt the GAC Advice, but neither did they reject it.  To some
extent, they kicked the can down the road, and here we are.

We can start with the GAC advice, which was disarmingly simple: "For
strings representing generic terms, exclusive registry access should serve
a public interest goal."

The GAC advice did not ban closed generics.  The GAC advice could have
allowed a closed generic to proceed in the prior round -- if the TLD met
the safeguard of "serving a public interest goal."  It appears that the
Board looked into making this happen; unfortunately, there was no existing
capability to make a "public interest goal" determination.  The Rationale
shows that the Board asked the GNSO to provide policy guidance on this
point, perhaps hoping to fill this gap.  The GNSO demurred, based on timing
concerns and the Council's limited remit (and perhaps to avoid de facto
"negotiations" with the GAC).

The Board was thus left with no way forward to implement closed generics in
the last round, unless they (a) rejected GAC advice (which the Board has
generally sought to avoid) or (b) allowed Org to create a public interest
test under the guise of "implementation" (which would have opened several
Pandora's boxes). Thus, the Board couldn't truly adopt the GAC advice in
the prior round.

The Board resolution did not ban closed generics either. A ban would have
been at odds with the GAC advice, which expressly offered guardrails for
closed generics.  In this spirit, the Board created three options.  None of
these provided the result the GAC advice envisioned, but neither did they
reject the GAC advice.    Most importantly, a path forward for closed
generic applications is among the options.  None of the three options --
switch, withdraw or wait until the next round -- allowed a closed generic
application to proceed in the prior round, but the "wait" option preserved
closed generic applications for consideration in the next round (i.e., this
round).  So, not a ban. But permission with a major caveat -- GNSO policy
was needed to make this wrork

But where does that leave us?

Can we say the Board accepted the GAC advice? The Board did not expressly
say so, and the Resolution does not clearly characterize its relationship
to the GAC advice. The "Resolved" clause follows the spirit of the GAC
advice, recognizing it could not be put in place for that round: the Board
"requests 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."  The Board falls short on clarity; it does not require
the PDP outcome to include the "public interest goal" criterion. Perhaps
the Board didn't want to be seen as dictating a policy outcome to the GNSO.
But it's clear what the Board wanted.

The last paragraph of the Rationale supports this, saying that "The
adoption of the GAC advice will have a positive impact on the community
because it will assist with resolving the GAC advice concerning the New gTLD
 Program."   If this is meant to say that the Board adopted the GAC advice,
it's awfully vague, and of course, the GAC advice can't be adopted in
practice without a PDP-created "public interest goals" test and method for
applying for and reviewing closed generic applications.

Taking all this into account, it seems apparent that the goal of both the
GAC and the Board was to allow closed generics to proceed if, and only if,
there was a public interest goal requirement.  And it was the Board's
expectation that we would make this happen.

In the end, this tells us what we should have done -- or more
optimistically what we could still do.  But it does not tell us what the
status quo would be if we failed.

The GNSO Council is quoted in the Board's Rationale with what could be
their version of the status quo: "The GNSO Council stated that, "although
the GNSO did not explicitly consider the issue of 'closed generic' TLDs as
part of the new gTLD PDP, we recall that the issue of restricting new gTLDs
was, in general, considered and discussed. At that time, it was the view
within the GNSO that it should not be the responsibility of ICANN to
restrict the use of gTLDs in any manner, but instead to let new gTLD
applicants propose various models; open or closed, generic or not.'"  That
is certainly the status quo of 2007 and 2012, but it is not the status quo
of 2015.

The Board Resolution is not a prohibition, but it is also not a
self-evaporating decision (which I once thought it was).  If our general
rule is that the status quo is the AGB as implemented and with all Board
decisions included, then I think we stick with that rule here.

I think that means that the status quo is this: *Closed generic TLDs may be
applied for in this round, in the hope that a public interest goals
requirement could still be put in place for the round.  If not, those
applications can opt to switch to open, withdraw, or wait for the next
round.  This could be simplified to say that the status quo is that closed
generic TLDs will be allowed with a public interest goals requirement, but
that this requirement must be defined in this PDP or a subsequent one.*

In that case, we have failed the status quo. Such failure should be
rewarded neither with a "ban" or an "open season."  Instead, we have an
"incomplete." If you agree, then we must create a policy that allows
generic strings serving a public interest goal, with sufficient guidance so
that this policy can be implemented with predictability.  I think anything
less goes back to the GNSO Council to resolve. We can't make this go away
by inaction; it will wander among us as an unfulfilled policy objective,
haunting us until we bring it peace.

Greg

On Sun, Jul 12, 2020 at 7:20 PM Marc Trachtenberg via Gnso-newgtld-wg <
gnso-newgtld-wg at icann.org> wrote:

> The bottom line at this point is that the only reason to include anything
> other than what the Board actually resolved is to add commentary supporting
> a particular point of view on whether closed generics should be allowed and
> if so, when. The only thing we can agree upon is that we can't agree. So
> let the Board speak for itself and people who read the report can interpret
> it as they will.
>
>
> Best Regards,
>
> * Marc H.Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP
> 77 West Wacker Drive
> Chicago, IL 60601
> Office (312) 456-1020
> Mobile (773) 677-3305
>
> On Jul 12, 2020, at 4:29 PM, Alexander Schubert <alexander at schubert.berlin>
> wrote:
>
> 
> **EXTERNAL TO GT**
>
> Dear Jeff,
>
> Let me start by highlighting your good stewardship in this group. I am
> amazed how you lead us - and how you orbit around all aspects of this PDP.
> Very good job.
>
> Regarding the ".disaster" example:
> That's the problem with examples; they initially make sense - but when
> diving into details: they might turn out not so good. In the case of the
> Red Cross applying for any generic term based new gTLD: just because their
> work is so extraordinary humanitarian doesn't mean any potential generic
> gTLD is deemed to be worthy to be taken by them. So when people poked holes
> in this example then less as to prove no example can be given - but more to
> prevent having an insufficient example in our WG report.
>
>
> Thanks,
>
> Alexander
>
>
> Sent from my Samsung device
>
>
> -------- Original message --------
> From: Jeff Neuman <jeff at jjnsolutions.com>
> Date: 7/12/20 18:36 (GMT+02:00)
> To: George Sadowsky <george.sadowsky at gmail.com>
> Cc: gnso-newgtld-wg at icann.org
> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic
> Text
>
> Thanks George for keeping the dialogue going and I think this is very
> helpful.
>
> So, I presented an example before (and in) the initial report that I came
> up with.  The example was an application for .disaster by the International
> Red Cross.  The application (made up by me) was to have second level names
> given to specific disasters to serve as the official Red Cross fund raiser
> for these events.  Examples include HurricaineMaria.disaster,
> covid19VA.disaster, covid19UK.disaster, etc.  Users would know that if they
> went to these sites and donated, that the money would actually be going to
> the official Red Cross and to official sources.   The goal would be to
> drastically reduce the amount of fraud to end users from fake fundraising
> campaigns.
>
> Those that opposed closed generics did not agree that this would be good
> enough.  They argued that generic words should be open to all “competitors”
> and why should the Red Cross monopolize a word/string.  They come from the
> very traditional view that second level domains should be available to all
> (with restrictions).  It is a view of end users being the registrants of
> domains as opposed to end users being those that use the Internet in
> general.   Opponents argued “why couldn’t they just apply for .redcross” or
> “why cant they just make it open”?  So essentially it became a debate about
> words and generic ness and who has a right to them as opposed to looking at
> the application itself to see if it served a public interest goal.
>
> When it became apparent that even in this humanitarian extreme example
> that members of the working group were unwilling to consider the
> application that we decided to end the discussion because it was clear that
> no example would satisfy the “serving a public interest goal” to members of
> the group.
> I hope that helps explain a little bit more how we got here and that we
> have indeed tried to discuss some examples.
>
> Get Outlook for iOS
> <https://urldefense.com/v3/__https://aka.ms/o0ukef__;!!DUT_TFPxUQ!VFYmMUj6rLqzvQYxqjU02Kinys6WMsx-qvncEa1LBXK4V3G66AraAqvp5U1t0bOOWF0$>
> ------------------------------
> *From:* George Sadowsky <george.sadowsky at gmail.com>
> *Sent:* Sunday, July 12, 2020 9:35:12 AM
> *To:* Jeff Neuman <jeff at jjnsolutions.com>
> *Cc:* Kleiman Kathy <kathy at kathykleiman.com>; gnso-newgtld-wg at icann.org <
> gnso-newgtld-wg at icann.org>
> *Subject:* Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed
> Generic Text
>
> Thanks, Jeff, for a thorough and and balanced response.  I have several
> comments and suggestions, interspersed in the text below.
>
> On Jul 11, 2020, at 11:50 PM, Jeff Neuman <jeff at jjnsolutions.com> wrote:
>
> Thanks George.
>
> This is helpful, but I am not sure that any part of the Board resolution
> or rationale necessarily supports the notion that the default position be
> an outright ban.  In reading the resolution and rationale again, one could
> read that as meaning that the board was not looking to ban closed generics
> altogether, but was looking for guidance as to how applications for closed
> generics could be evaluated as “serving a public interest goal.”
>
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