[gnso-gac-closed-generics] Closed Generics Asynchronous Work and Updates
Kathy Kleiman
Kathy at KathyKleiman.com
Wed May 31 19:26:07 UTC 2023
My input below in *Green.*
Best, Kathy
On 5/31/2023 6:20 AM, Sophie Hey wrote:
>
> I have provided my answers below in-line in blue.
>
> Sophie Hey
> she/her
> Policy Advisor
> Com Laude
> *T*+44 (0) 20 7421 8250
> *Ext* 252
>
> <https://comlaude.com/>
>
> /We are pleased to launch our new YouTube channel
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>
> *From:*gnso-gac-closed-generics
> <gnso-gac-closed-generics-bounces at icann.org> *On Behalf Of
> *jeff at jjnsolutions.com
> *Sent:* Monday, May 29, 2023 7:49 PM
> *To:* John McElwaine <john.mcelwaine at nelsonmullins.com>; Melissa
> Peters Allgood <melissa.allgood at icann.org>;
> gnso-gac-closed-generics at icann.org
> *Subject:* Re: [gnso-gac-closed-generics] Closed Generics Asynchronous
> Work and Updates
>
> My responses below John's in Purple.....
>
> ------ Original Message ------
>
> */Identifying Disadvantaged Sectors/*
>
> *_Red line language:_*
>
> * “Should the applicant also be asked to identify sector(s) of
> the public that may be disadvantaged by its operation of a
> closed gTLD and provide information about how it intends to
> address the issue?”
>
> *B_roadly-agreed language in v3:_*
>
> “7.l. Identify any threats or risks that could reasonably be posed
> if the closed generic gTLD is delegated, and specify the specific
> mitigating actions that the applicant plans to take to minimize
> these threats and risks.”
>
> *_Proposal: REPLACE broadly agreed language from v3 7.l with the
> following compromise:_*
>
> * Identify sector(s) of the public that may be disadvantaged if
> the closed generic gTLD is delegated, as well as any threats
> or risks that could reasonably be posed, and detail the
> specific mitigating actions that the applicant plans to take
> to minimize these threats and risks.
>
> * The applicant must make explicit commitment to the policies,
> rules or actions that the applicant will agree to take to
> minimize any threats or risks to the public or
> anti-competitive impacts by operation of the applied-for
> closed generic TLD.
>
> Please respond if you can live with this compromise. If you
> cannot, please offer a way forward.
>
> John: I can live with this compromise provided that it is not
> part of the evaluation of whether the applied-for TLD serves a
> public interest. I do not believe that evaluators will be
> qualified to make this determination, nor do I believe that such
> an evaluation will be a predictable process. In addition, as some
> have said, we are allowing the applicant dictate the threats and
> risks upon which they may be evaluated. Instead, the mitigation
> action should be proposed by Applicant and included as
> post-delegation requirements. If the application is approved, I am
> fine with the “actions” being adjusted or supplemented by public
> comments or by an evaluation panel.
>
> Jeff - I am only good with the version in v3 above, not with adding
> anything about disadvantaged communities or how to mitigate it or
> anything like that. I believe that asking any questions that cannot
> be evaluated is not something we should be engaging in. This is not
> an academic exercise, but rather the proposed business of an
> applicant. Applicants are not experts in politics, ecnomics, and
> should not be expected to engage in an acedemic exercise of who in
> theory "could possibly" be impacted in manners outside of their
> control. IN the agreed language we are already asking appicants to
> identify all risks and how they are going to mitigate against those
> risks. What is also clear to me is that anyone that does not want th
> applicant have the TLD can in public comment set forth the whole
> parade of horribles that in theory could happen. And the evaluators
> can then assess whether (a) the comments have identfied actual likely
> risks, and (b) whether the applicant has or can address those risks
> (by asking Clarifying questions).
>
> FInally, "risks" can include any risks including whether there will be
> a party disafvantaged by the delegation (though i can't really imagine
> how). Bottom line, I can live with the Broadly agreed language, but
> not the Compromise.
>
> Sophie: seeing the comments from John and Jeff above, and considering
> the compromise language, I am proposing the following language:
>
> * Detail the mitigation actions the applicant commits to take in
> response to: any self-identified risks or threats, and/or risks or
> threats identified in public comment. The threats or risks will
> not form part of the evaluation of whether a closed generic gTLD
> will serve a public interest goal.
> * The applicant must make explicit commitment to the policies, rules
> or actions that the applicant will agree to take to minimize any
> threats or risks to the public or anti-competitive impacts by
> operation of the applied-for closed generic gTLD.
>
*Kathy: I'm fine with the compromise language. *
>
> */Definitions/*
>
> In your asynchronous work, we saw general agreement that having a
> colloquial definition of “closed generic gTLD” would be helpful,
> so long as it is clear that this group is not creating policy
> through such use of such a colloquial definition. The term
> affiliates was flagged in the Remaining Red Lines document and
> staff suggests the additional language found in the last
> sub-bullet as a compromise path forward.
>
> *_Proposed language_**:*
>
> * “For purposes of the Closed Generics Facilitated Dialogue, 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) and Section 11.3(d), the group
> agreed to the following colloquial definition of “closed
> generics.” Please note, this colloquial definition is not
> intended to impact any associated contractual definitions or
> control future policy work on this issue.
>
> o A “closed generic gTLD”, sometimes described as a “gTLD
> with exclusive registry access”, is understood to be a
> gTLD representing a string that is a generic word or term
> under which domains are registered exclusively by the
> registry operator and its affiliates.”
>
> + The group discussed examples where the term
> “affiliates” may benefit from the inclusion of
> entities with common charters or governing documents,
> but no decision was taken on this matter as it is
> beyond the scope of this group.
>
> Please respond if you can live with the compromise. If you cannot,
> please offer a way forward.
>
> John: I support the Proposed Language with the following revision
> to the last bullet:
>
> * The group discussed where the term “affiliates” may benefit
> from the inclusion of entities with common charters or
> governing documents. *_The group also discussed that an
> expansion of the term “affiliates” could harm innovation and
> unintentionally create new policy by covering Community TLD
> applications and open-but-restricted TLDs_*. No decision was
> taken on this matter as it is beyond the scope of this group.
>
> Jeff: I am not a fan of the proposed language. But can we change to:
>
> * For purposes of the Closed Generics Facilitated Dialogue, 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) and Section 11.3(d), the group agreed to the not make any
> changes to the definition, but rather discuss examples where the
> term 'affiliates' in that definition may benefit from the
> inclusion of entities with common charters or boerning documents.
> Future policy discussion may want to incorporate this concept in
> their work. following colloquial definition of “closed generics.”
> Please note, this colloquial definition is not intended to impact
> any associated contractual definitions or control future policy
> work on this issue.
>
> o A “closed generic gTLD”, sometimes described as a “gTLD with
> exclusive registry access”, is understood to be a gTLD
> representing a string that is a generic word or term under
> which domains are registered exclusively by the registry
> operator and its affiliates.”
>
> + The group discussed examples where the term “affiliates”
> may benefit from the inclusion of entities with common
> charters or governing documents, but no decision was taken
> on this matter as it is beyond the scope of this group.
>
> Sophie: I can live with the proposed compromise language with
> John’s proposed edit. *
> *
>
*Kathy: I've never understood how or why affiliates became part of our
discussion. Section 2.9(c) of the registry agreement (pasted below) is
not relevant to our discussion - it applies to the concern of co-owned
registries and registrars (and of course "closed .Brand" gTLDs and their
domain names are only for the registry and their co-owned, or subsidiary
parts). _But we must not mislead the future Policy Development Process
groups, and this definition will. _ We (our Small Team; not of us) are
not thinking just about entities directly or indirectly owned - or even
common governing documents (sorry John, I see where you were trying to
go here) - unless you mean that the common document of a membership
organization, e.g, CTIA, could apply.
*
*Remember our Representativeness track and let's note that "affiliate,"
as used in the ICANN Registry Agreement, does not apply to the
independent members of an industry association or to the very
independent national organizations of the Red Cross, Red Crescent and
Red Star of David, or to John's .DONATION platform user case serving
many independent small non-profits in a very fair way. Affiliates is a
term of art in the contract (please see below) and we definitely need a
more encompassing term - and I think we can work on it together - e.g., **
*
o *A “closed generic gTLD”, sometimes described as a “gTLD with
exclusive registry access”, is understood to be a gTLD
representing a string that is a generic word or term under which
domains are registered exclusively by the registry operator, the
inclusion of entities with common charters or governing
documents, and other groups, organization and companies falling
under the applicant's criterion for "representativeness" or "non
anti-competitive behavior."
*
*"10.a. Track 1: For “representativeness”, applicants must demonstrate
that the applicant represents all or a significant part of the
businesses (or has their agreement) in the industry or group related
tothe closed generic term.*
* 10.a.i. This criterion can be fulfilled, for example, by the
applicant being an umbrella organization of the industry in question.*
* 10.a.ii. The application must show that significantly "interested
parties," including competitors, have been consulted and engaged for
input prior to submission of the application." *
***"NOTE: Under the Base gTLD Registry Agreement, Section 2.9(c),
“Affiliate” means a person or entity that, directly or indirectly,
through one or more intermediaries, or in combination with one or more
other persons or entities, controls, is controlled by, or is under
common control with, the person or entity specified, and (ii) “control”
(including the terms “controlled by” and “under common control with”)
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person or entity,
whether through the ownership of securities, as trustee or executor, by
serving as an employee or a member of a board of directors or equivalent
governing body, by contract, by credit arrangement or otherwise."*
> */Public Comment/*
>
> During our 24 May call, the group continued discussion on this
> point. The group has broadly acknowledged the need for sufficient
> notice of an application for a closed generic gTLD and sufficient
> time for response. The group has broadly acknowledged significant
> delay to the initial evaluation could be problematic. The task
> before you is to identify a way forward.
>
> Please respond with your proposed way forward on this issue.
>
> John: I thought that it was made apparent that a second comment
> period was unnecessary under the current structure but that some
> advocating for this point felt that it was needed to allow for
> additional time. As such, I support the ability for a party
> alleging harm (i.e., standing) for a closed generic TLD to request
> an extension of time, with the period of that extension decided
> upon in the policy-making group .
>
> Jeff - Agree with John that at most we may have agreed that if
> necessary additional time could be requested, but that request needs
> to be reasonable and may not be used to extend other deadlines.
>
> And on this note, there already is flexibility in the applicant
> guidebook to extend the comment period in general (for all types of
> applications) should it be necessary. I do not see the difference
> between why we would extend for Closed Generics, and not for
> Communities, string similarity, etc.
>
> Please see my response on the other thread. I have proposed language
> as a way forward.
>
> I encourage you to continue your efforts to view the remaining
> work through a solution-oriented lens of collaboration and compromise.
>
> Wishing you a wonderful weekend,
>
> Melissa
>
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