[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 withdrawn,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
>
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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*
>
> 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
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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
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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
>
>             **
>
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