[gnso-gac-closed-generics] Closed Generics - Please Review and Respond

Nigel Hickson nigel.hickson at dcms.gov.uk
Mon Jun 5 06:58:29 UTC 2023 

Colleagues

Good morning and very much looking forward to our Call later.  On the
definitions re Affiliates noted below think Kathy is totally right that the
"instructions" we give to the GNSO policy process must note the variety of
bodies (including our examples of potential applicants for dot disaster or
dot flower shops)  we would want to be eligible to apply for CGs.

best

Nigel


On Sun, 4 Jun 2023 at 16:17, Kathy Kleiman <kathy at dnrc.tech> wrote:

> Melissa, You already have my response to the second comment period. I add
> this:
>
>
> *Definitions* - Staff proposed agreement in principle based on 31 May
> call:
>
>    - For purposes of this discussion, the group views a “closed generic
>       gTLD” as a “gTLD with exclusive registry access”, understood to be a gTLD
>       string that is a generic word or term under which domains are registered
>       exclusively by the registry operator, its affiliates, and possibly other
>       relevant entities as determined by subsequent policy work.
>       -
>
> As I look at the proposed new definition section, and the “closed generic
> gTLD,” I am almost without words – almost.
>
>
> Since the definition of “affiliate” first was thrown out in DC without
> text or context, and without reference to its section in the *registrar
> section* of the Registry Agreement, numerous people have protested this
> definition of “affiliate.”
>
>
> But some pigs, as my students and George Orwell would say, are more equal
> than others, and I can type until my hands are hurt (I’m getting early
> stage of carpal tunnel), and Staff does not hear me – or any of us in the
> Broad Agreement of concern.
>
>
> Melissa, who is drafting this material?  If there was any fairness in the
> drafting, we would:
>
>
> *a) Have a Framework* *that clearly includes our most popular and favored
> Use Cases, all ones with very Broad Agreement* - .DONATION, .DISASTER,
> .UKFLOWERSHOPS, .SIP [a protocol]. All independent entities – all not
> “affiliates” under any possible definition of the registry agreement – and
> all the best, more treasured examples to most of us.  An example is worth
> 1000 words – and we have asked you to write them into the Framework again
> and again. *Where are these examples in our Framework?*
>
> b) Have Jason’s “AND” included in a clear and define manner– not a vague
> and undefined one.  Jason asked *for a legitimate and strong AND that
> embraces our Broad Agreement of Representativeness, including that future
> closed generic gTLDs can be applied for and run by Trade Associations and
> Membership Organizations on behalf of their members.  Other groups, like
> the International Red Cross and UK flower shops, by our agreement, may run
> closed generic gTLDs on behalf of very independent organizations and
> companies- with a common mission and purpose** but not common *
>
> *c)   *Have the AND that we need and that is right.  The newly-drafted
> version is not right: *“**and possibly other relevant entities as
> determined by subsequent policy work*” [italics added]. *This ill-drafted
> language means that a future PDP can define away and write out Track One,
> Representativeness*, *which an integral part of our Framework.* Unless
> the AND clause is clear, known, and comprehensive of our Broad Agreement
> and Track One, Representativeness, there is no Framework.
>
> Overall, Definitions are the foundation of any Framework. If we put in an
> inaccurate, incomplete or too narrow definition – then the definition
> represents only a fraction of our intended Closed Generic gTLD use cases
> (as broadly agreed) - that’s all we will get and every future applicant,
> Examiner and Objection Panelists will read the closed generic gTLD
> definitions first, and write out the rest of it. If it’s not in there now,
> it will never be.
>
> ---
>
>    - For purposes of the Facilitated Dialogue on Closed Generic gTLDs, it
>    was necessary for the group to have a shared understanding of concepts
>    relevant to closed generic gTLDs. Bearing in mind relevant definitions
>    found in the Base gTLD Registry Agreement, Section 2.9(c) (“Affiliate”) and
>    Specification 11, Section 3(d) (“Generic String”), the group agreed not to
>    change any existing definitions, but acknowledged that there are likely
>    other entities beyond “Affiliates” that would benefit from exclusive
>    operation of a closed generic gTLD with the registry. A future policy group
>    should consider incorporating this concept in its work.
>
>
> As for this section, where did it even come from?  We have not just “acknowledged
> that there are likely other entities beyond “Affiliates” that would benefit
> from exclusive operation of a closed generic gTLD with the registry,” we
> have *Broadly Agreed that Are Other Entities Beyond Affiliates that DO
> and WILL benefit from the exclusive operation of a closed generic gTLD,
> which is Jorge and the GAC’s REPRESENTATIVENESS TRACK (Track one).*
>
>
> Does the group with Broad Agreement have to shout again, and if so,
> Melissa, how many times?
>
>
> Plus, where does the “Generic String” section, Specification 11, Section
> 3(d) come from in our not-agreed understanding.  It’s new and being added
> in the 11th hour and must not be. (Both Jeff and I, last week, both
> thought you were trying to reference the second “affiliate” discussing, the
> one in Specification 13 for .BRAND gTLD.)
>
>
> But writing in this Generic String discussion now- when neither Sophie nor
> I can agree on the intended – and unintended – consequences is not right.
> There is no “shared understanding” and we have no time to analyze, examine,
> research or brief how it will impact our Framework. This is not a
> definition issue for us to decide, but one for ICANN’s Lawyers to assess.
> (ICANN Counsel can determine whether this definition, created very quickly
> by the Board for the broad purpose of throwing out all closed generic gTLD
> applications in the first round needed more careful evaluation and
> evaluation for the more delicate task of evaluating closed generic gTLD
> applications in future rounds per the Framework.)
>
>
> As .BRAND created their own wrinkles and definitions in Specification 13,
> so too will Closed Generic gTLDs.  This is an issue for ICANN Legal, not
> for us.
>
>
> This entire paragraph with its inaccurate reference to “other entities
> beyond ‘Affiliates”” and “generic string” references is not a shared
> understanding, is not broadly understand much less agreed upon (since we
> are seeing some of it for the very first time). It must be deleted to avoid
> intended – and unintended – consequences and to avoid an “agreement” we
> simply don’t have. This paragraph has too much unexamined, unagreed and
> actually wrong.
>
>
> ***
>
>
> And thus my pen goes silent for some people’s pens in this group are more
> equal than others, and mine does not count. I vote against this Framework.
>
>
> Kathy
>
>
>
> On 6/1/2023 2:36 PM, Melissa Peters Allgood wrote:
>
> Hello all,
>
>
>
> First, I’d like to thank each of you for your hard work yesterday. Your
> willingness to hear one another and find a compromise was on full display.
> I recognize that many of you don’t love where your work landed, but you
> worked hard to find a path that all can live with. Truly the MSM at work.
>
>
>
> Below you will find our attempt to capture the agreement in principle that
> was reached.
>
>
>
> *Definitions* - Staff proposed agreement in principle based on 31 May
> call:
>
>
>
>    - For purposes of the Facilitated Dialogue on Closed Generic gTLDs, it
>    was necessary for the group to have a shared understanding of concepts
>    relevant to closed generic gTLDs. Bearing in mind relevant definitions
>    found in the Base gTLD Registry Agreement, Section 2.9(c) (“Affiliate”) and
>    Specification 11, Section 3(d) (“Generic String”), the group agreed not to
>    change any existing definitions, but acknowledged that there are likely
>    other entities beyond “Affiliates” that would benefit from exclusive
>    operation of a closed generic gTLD with the registry. A future policy group
>    should consider incorporating this concept in its work.
>       - For purposes of this discussion, the group views a “closed
>       generic gTLD” as a “gTLD with exclusive registry access”, understood to be
>       a gTLD string that is a generic word or term under which domains are
>       registered exclusively by the registry operator, its affiliates, and
>       possibly other relevant entities as determined by subsequent policy work.
>
>
>
> Please respond if you can live with this compromise. If you cannot, please
> offer a detailed way forward.
>
>
>
>
>
> *Public Comment* – staff proposed agreement in principle based on 31 May
> call:
>
>
>
>    - Applications for closed generics gTLDs should be subject to the same
>    Public Comment period as all other gTLD applications. However, given that
>    closed generic gTLDs are uniquely impactful to the public interest, the
>    group acknowledges there should be more time dedicated to their Public
>    Comments if the number of these applications is considerable. If there are
>    more than 10 closed generic gTLD applications, then the Public Comment
>    period will be extended automatically for 60 days solely for closed generic
>    gTLD application comments. This does not replace ICANN’s discretion to
>    extend the Public Comment period for all applications, and the 60-day
>    extension will apply to the full length of the Public Comment period
>    (extended or otherwise).
>       - In line with Implementation Guidance 13.6 from the New gTLD
>       Subsequent Procedures Final Report
>       <https://gnso.icann.org/sites/default/files/file/field-file-attach/final-report-newgtld-subsequent-procedures-pdp-02feb21-en.pdf>(pg.
>       244), this implementation should enable the public to easily identify and
>       obtain information about applications for closed generic gTLDs. The group
>       agrees that there must be a centralized space where prospective commenters
>       can go to understand the rules for closed generic gTLDs and view the
>       applications themselves.
>       - Note: In arriving at this compromise approach to Public Comment,
>       the group acknowledges the unique nature inherent to closed generic gTLDs,
>       as well as the need for sufficient time for meaningful Public Comments, and
>       the public’s need to readily find all relevant information about closed
>       generic gTLD applications.
>
>
>
> Please respond if you can live with this compromise. If you cannot, please
> offer a detailed way forward.
>
>
>
>
>
> *To do:*
>
>    1. Respond to the proposed approach for Definition and Public Comment
>    above
>    2. Review the Closed Generics Framework v4 document (s) – Edits Tracked
>    <https://docs.google.com/document/d/1nEy2mQm01ITo-ovxgIVQ0kNIpLqPV4bqVxTKgZb15vQ/edit>
>    and/or Clean
>    <https://docs.google.com/document/d/1InSBpBSW-j2aVwsk59t-Hs2LfAhuEKNfiwkFoi3SYxU/edit>
>
>
>
>
>
> *Agenda for 5 June 2023 at 12:30 UTC:*
>
>    1. Finalize Definition and Public Comment
>    2. Review preliminary framework (Closed Generics Framework v4)
>    3. Final call to determine if the group can live with the preliminary
>    framework document (Items 1 & 2)
>    4. Discuss Closed Generics sessions at ICANN77
>
>
>
>
>
>
>
> As always, my sincere thanks for all your hard work.
>
>
>
> Melissa
>
>
>
>
>
>
>
>
>
> Melissa Peters Allgood
>
> Conflict Resolution Specialist
>
> Internet Corporation for Assigned Names and Numbers (ICANN)
>
>
>
> Telephone:  +1 202 570 7240
>
> www.icann.org
>
>
>
>
>
> _______________________________________________
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>
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>
> --
> Kathy Kleiman
> President, Domain Name Rights Coalition
>
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