[Gnso-newgtld-wg] Closed Generics / Creation of Sub-group
Kathy Kleiman
kathy at kathykleiman.com
Fri Aug 23 02:28:25 UTC 2019
The 2012 round is out of scope...
On 8/22/2019 5:05 PM, Aikman-Scalese, Anne wrote:
>
> 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 withdrawn,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
>
> 520.629.4428 office
>
> 520.622.3088 fax
>
> AAikman at lrrc.com <mailto:AAikman at lrrc.com>
>
> _____________________________
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 700
>
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>
> lrrc.com <http://lrrc.com/>
>
>
> *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*
>
> 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 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
> Libertador 5990, Off. 406
> Buenos Aires, Argentina.
>
> Este email, incluyendo adjuntos, podría contener información
> confidencial protegida por ley y es para uso exclusivo de su
> destinatario. Si Ud. no es el destinatario, se le advierte que
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> This e-mail, including any attachments, may contain information
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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.
>
> Este email, incluyendo adjuntos, podría contener información
> confidencial protegida por ley y es para uso exclusivo de su
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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 theagenda wiki page
> <https://community.icann.org/x/VqujBg>. The latest
> version of the Summary Document ishere
> <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
> theBoard 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
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