[Gnso-newgtld-wg] Closed Generics / Creation of Sub-group

Thu Aug 22 21:05:56 UTC 2019

Jeff, Trang, et al

It strikes me that any registry that had to change its 2012 application from “Closed” to “Open” (in order to win an auction or otherwise be awarded the generic TLD) would be very interested in the possibility of getting a new policy permitting closed generics applied to the terms of its existing registry agreement.  Otherwise, we could be creating an “unfair playing field”.  Therefore, factual data from ICANN staff as to which registries from 2012 switched from “Closed” proposals to “Open” proposals should also be considered by the small group.

TRANG – could you please
(1) recirculate the list of 2012 applications that have not been withdrawn,

(2) Identify any 2012 Closed Generic applications that were switched to “open” status in order to qualify for delegation or for a Contention Set, and

(3) Let us know who won the contention set for a generic where one or more of the original applicants applied for a Closed Generic?

The above information should be very helpful to the small group.

Another question for the group might be:  Would it be fair to allow the winner  of an open generic contention set to update to a new policy and operate a closed generic under that new policy if the bidders in the contention set in 2012 were bidding solely based on an understanding that the registry would need to be “open”?

This also affects the policy question I was asking about giving priority to applications from 2012 that have not been delegated.  My question was:  What policy applies if those applications are given priority?   Old policy or new policy?  I believe Susan Payne is drafting some language relative to priority for 2012 applications as well as priority for applications that remain unresolved when a future round closes.  I am not sure how that language might (or might not)  apply to a registry agreement issued in 2012 where the registry may desire to “switch” to any new policy adopted as to “Closed Generics”.

As to Board action and consideration of what the Board will do, one element that needs to be considered is the standing GAC Advice that a Closed Generic “should serve a public interest goal”.  Since the Board would have to have 11 votes to act against that Advice, it may be worthwhile for the small group to develop some examples demonstrating what “public interest goal” might be served by a Closed Generic.

Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Martin Pablo Silva Valent
Sent: Thursday, August 22, 2019 10:25 AM
To: Jeff Neuman <jeff.neuman at comlaude.com>
Cc: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Closed Generics / Creation of Sub-group

[EXTERNAL]
________________________________
Of course, but yet again, having no agreement is not a wild card that the board could use to allow generics, it’s quite the opposite. Only if we agree to allow them the board could approve them.

Best,

Martin Silva Valent

mpsilvavalent at gmail.com<mailto:mpsilvavalent at gmail.com>

Partner | Silva.legal
martin at silva.legal<mailto:martin at silva.legal>
Director | Dat.as
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On 22 Aug 2019, at 14:12, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>> wrote:

Martin,

I think arguments can be made in a lot of different ways (and understand you disagree with that), but I would ask us to focus on whether we can find some compromise solution.  I am hoping you are joining the small group to help us find some sort of compromise (if we can) as that is its purpose.

Best regards,

Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>

From: Martin Pablo Silva Valent <mpsilvavalent at gmail.com<mailto:mpsilvavalent at gmail.com>>
Sent: Thursday, August 22, 2019 12:40 PM
To: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Closed Generics / Creation of Sub-group

Jeff,

The board can always take decisions we cannot anticipate with certainty, but we can have an opinion on what the board should do. It is clear for me that there is no scenario were with good faith and rational, even legitimacy, a board decision over closed generic should open them without our explicit consent to it and the rules it will have according to us in that case. The community holds the power and legitimacy in the bottom-up model in gTLDs, and not allowing the closed generic is the default because that was what current practice and previos board decisions have been. Specially since it is also clear there are clear community concerns of they even being allowed at all.

So no, I do not think it is fair to say that we don0’t now what the board will say if we don’t agree, therefore we should agree on something. Not agreeing to open the generic is a valid solution and that means the current state of affairs holds, unless the board goes rogue and creates PDP new policy against the will of the constituencies entitled to create such policy. The temporal designo is the solution the board came to in the absence of us agreeing to have them in the first place. That is the logical solution and there is no reason to think otherwise.

Best,

Martin Silva Valent

mpsilvavalent at gmail.com<mailto:mpsilvavalent at gmail.com>

Partner | Silva.legal
martin at silva.legal<mailto:martin at silva.legal>
Director | Dat.as
martin.silva at dat.as<mailto:martin.silva at dat.as>

Skype ID: mpsilvavalent
Tel: +5491164993943
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Buenos Aires, Argentina.

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On 22 Aug 2019, at 13:25, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>> wrote:

Thanks Martin.

Although I understand your arguments, my only point was that it is not as clear as it is in other situations.  And if we hang our hat on the argument that the default means what you believe it means (and therefore rely on what you believe the default means), we need to recognize that that may not be how the Board interprets the default.

I am glad to see that you have volunteered to join the group which hopefully means that you are willing to help work on a compromise position between the many sides.

Thanks.

Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>

From: Martin Pablo Silva Valent <mpsilvavalent at gmail.com<mailto:mpsilvavalent at gmail.com>>
Sent: Thursday, August 22, 2019 11:00 AM
To: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Closed Generics / Creation of Sub-group

Hi all,
              I would like to strongly disagree with the view on the default issue, it is very clear that the default is not allowing them. The temporality goes towards an eventual policy that may contradict the board, in that case, the board recognizes our policy allowing them would win over their decision not to, if that policy explicitly allowing them in x and y terms cannot be created because there is no consensus for that, then the ban on generics remains. So no new consensus policy allowing them means not allowing them.

Best,

Martin Silva Valent

mpsilvavalent at gmail.com<mailto:mpsilvavalent at gmail.com>

Partner | Silva.legal
martin at silva.legal<mailto:martin at silva.legal>
Director | Dat.as
martin.silva at dat.as<mailto:martin.silva at dat.as>

Skype ID: mpsilvavalent
Tel: +5491164993943
Libertador 5990, Off. 406
Buenos Aires, Argentina.

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On 22 Aug 2019, at 11:40, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>> wrote:

All,

Thanks for the great discussion on Closed Generics earlier today/yesterday.  For those that were not able to be on the call, I highly recommend listening to the recording which can be found on the agenda wiki page<https://community.icann.org/x/VqujBg>.  The latest version of the Summary Document is here<https://docs.google.com/document/d/1Q6_DxsCvSA_3B7ArncO2U4tWNY3vH7Wi4nINrouR4AI/edit#heading=h.j7jy935ryg4k> (specifically Section 2.7.3 – currently pages 14-20).

One of the action items from the call with to create a small sub-group to discuss this issue further to see if it is possible to get a “compromise position” of the Working Group on one of the options that were presented (or any hybrid or new option).  We are seeking volunteers to serve on this small group.  Please let us know if you would like to sign up for this group.

One word of caution:  This group is not being set up to rehash the arguments for and against Closed Generics.  We have spent more than enough time on that issue and the Summary Documents, combines with the Initial Report and Public Comment Analysis referenced in the Summary Document we believe have effectively captured all of that.  What we are looking for is whether there is any solution that can address/mitigate the alleged harms expressed by those that oppose Closed Generics.  We are trying to assess whether there is an appetite in the group to compromise.

If, after several weeks, we (the Leadership) do not believe there is such an appetite, then we will close the small group down.  The last thing we want to do is waste a lot of time discussing an issue that no side is willing to give anymore on.  Although you should be familiar with the Summary Document, please do not make any changes to that document at this time (other than glaring errors).  The focus should be on finding a compromise (if there is one to be reached).

To reiterate, this is a unique situation we have with this issue, because there technically may not be a default position to fall back on.  Although it is true that the Board decided to temporarily not allow Closed Generics in 2012<https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en>, the ICANN Board expressly asked the GNSO to create policy on this matter.  The Board, in deciding not to temporarily allow closed generics did not expressly endorse any argument for or against closed generics, but rather made it clear that this was an issue for the communti.

Therefore, if we cannot agree on a solution, it is not clear what the ICANN Board would ultimately conclude was the default position.  It could be the default was not allowing them or, alternatively, the default could be allowing them because the AGB did not indicate a position on this one way or another.

Please let us know ASAP if you would like to join this discussion.  We will endeavor to get this list up by early next week and try to start discussing the issues right away.

Best regards,

Jeff Neuman
Senior Vice President

Com Laude | Valideus
1751 Pinnacle Drive
Suite 600, McLean
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