[Gnso-newgtld-wg] Very High Level Proposal on Closed Generics - PERSONAL PROPOSAL

Tue Aug 4 02:47:21 UTC 2020

Kurt,

Thanks for your comments on the proposal.  I appreciate all feedback.  Without trying to sound defensive, I would like to respond to some of your comments.

I want to state for the record that I have no vested interest personally or professionally in the outcome of this debate.  I am not currently doing any work for a TLD applicant.  I am just trying to synthesize concepts into a proposal to move forward.  But at the end of the day, its ok if this proposal does not see the light of day.

++++++++++++++++++++++++++++++++++++++++++

If we cannot agree on the high level principles, then we can’t even begin to develop a implementable policy.  So, to address your substantive points:

  1.  Absolutely a determination that an application passes a public interest test is completely subjective.  There is no way to come up with an objective tests.  Ever since Justice Brandeis coined the concept of “public interest” in the United States, academics, philosophers, governments, legal scholars, judges, etc. have failed in every way to determine an objective way to measure whether something is in the public interest.  I have read hundreds of pages of texts and all of them agree on that one fact.  So, if we are going to accept the notion that Closed Generics must serve a public interest goal, then Applicants who apply for a Closed Generic will have to agree going in that whether they will be allowed to have that closed TLD will be subjectively determined.

  1.  Subjective determinations are made all the time in the real world.  Every RFP I have ever participated in (both within and outside of the community) has at its core been subjective.
     *   The selection of the .org operator, the .net competition, the .biz registry, the .us registry, were all subjective.
     *   All other RFPs for vendors are subjective as well.  Yes, selectors often site lowest price, but the reality is that if the lowest cost provider does not meet the other subjective qualifications, they wouldn’t select the lowest cost provider
     *   If you want the privilege of operating a closed TLD, then perhaps we just need to acknowledge that it must be subjective.  So long as all eyes are wide open, I don’t see an issue with that.

  1.  I completely disagree with the notion that simply because something requires subjective determinations, that we need to then scrap that proposal and open everything up to everyone.

  1.  You state:  “To flesh out your plan into actionable criteria would take another extended period, the criteria will not lead to consistent results, and the scheme, when finally implemented will not achieve the hoped-for goals.

     *   That is a pretty broad assertion that may or may not be true.  But I don’t see the evidence to support that assertion yet.
     *   Again, if we can acknowledge at the outset that an Applicant wanting to keep their Generic gTLD closed will be subjective and may lead to inconsistent results, and have Applicants agree to that up front, that might be ok.    Remember, that these applicants will be asking to do something that is “an exception to the general rule.”  There is no inherent right to operate a Closed Generic TLD.  It can be considered a privilege.

  1.  You state: “All these will denigrate the reputation of the ICANN policy-making process generally as well as the ICANN model. There were four categories inn the previous round. All were problematic, none were as complex as this.”
     *   Being granted a special privilege (again an exception to the rule) should be complex.  No disagreement there.
     *   Whether that denigrates the reputation of the ICANN policy making process generally as well as the ICANN model can be said of the fact that we can’t agree on a unified solution as well.  In fact, that argument can be made about any policy position that one may disagree with.  At the end of the day, that is not a helpful assertion.

  1.  Part of the Public Interest Framework is to assess whether the proposal is innovative in fact as opposed to just a blanket assertion that the Closed Generic TLDs are innovative.  If you can show to the Panel that due to the closed nature of the TLD, it will allow an innovative approach to resolving an issue for the intended End User base, then that should go through.

  1.  You state:  “Who has a better chance to utilize .book, an innovative firm that has the wherewithal to experiment, present innovative approaches and improve upon them, or some schmo that will seek to maximize domain registrations with discounts and flash sales? I vote for innovation.

     *   Having a Closed TLD in and of itself does not equate to innovation.
     *   “some schmo that will seek to maximize domain registrations” – I am not going to comment on that other than to say that that should be subject to the balancing test that needs to happen to see if it serves a public interest goal.

In sum, If an applicant can demonstrate that the benefits to the intended end users of allowing a Registry to Operate Closed TLD outweigh the interest of domain name registrants to register domain names in that TLD, then perhaps that is the factor that weighs in favor of the Registry being allowed to operate a Closed TLD.

[cid:image001.png at 01D669E4.DB4EC1C0]
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com

From: Kurt Pritz <kurt at kjpritz.com>
Sent: Monday, August 3, 2020 9:45 PM
To: Jeff Neuman <jeff at jjnsolutions.com>
Cc: gnso-newgtld-wg at icann.org; trachtenbergm at gtlaw.com
Subject: Re: [Gnso-newgtld-wg] Very High Level Proposal on Closed Generics - PERSONAL PROPOSAL

Hi Jeff:

As Marc has just indicated, I think we owe a duty to ICANN to provide them with an implementable policy. I don’t think it is acceptable to leave very difficult or intractable problems with an implementation team, or else we will spend another extended period on what is already an embarrassingly long duration between rounds.

As you know, my original point of view was that the public interest test is not workable.We do not have workable definitions for public interest, a generic word, or a single-registrant TLD. To draw a parallel, the Community Priority Examination was a failure in that it could not be applied evenly, nor did it result in the hoped-for public benefit.  The Public Interest test, with its additional unknown dimensions, presents multiples of that difficulty.

The model you present here confirms and heightens these concerns. As I read each defitioniton and criteria set you propose, I wonder, “How do you test for that,” and “what could be the scoring for that”? From someone who spend days and days inn a conference room weighing many ersatz applications against CPE criteria and scoring regimes, I can say that this cannot be effectively done.

To flesh out your plan into actionable criteria would take another extended period, the criteria will not lead to consistent results, and the scheme, when finally implemented will not achieve the hoped-for goals.

All these will denigrate the reputation of the ICANN policy-making process generally as well as the ICANN model. There were four categories inn the previous round. All were problematic, none were as complex as this.

Those who are speaking against this new, additional categorization are not for an “anything goes” or “no strings attached” approach. I think I can speak for others and say we want to develop a policy that will serve ICANN and the ICANN model well.

On the other side of the issue, I agree with Marc that we would be better off banning closed-generics rather than attempting to implement this test. However, I am more bullish on their worth and am afraid we would be effectively banning innovation with such a prohibition. If we are not here to encourage some type of innovation, why are we here?

ICANN has created with its contracts an environment that restricts TLD usage to the same, tired operating model. Closed generics would cause a reconsideration of gTLD rules in a way that encourages innovation. For example, closed generics would cause ICANN to reconsider the existing fee structure and just that fee structure has been an effective ban to innovation.

Who has a better chance to utilize .book, an innovative firm that has the wherewithal to experiment, present innovative approaches and improve upon them, or some schmo that will seek to maximize domain registrations with discounts and flash sales? I vote for innovation.

In any event, I think it is important that the final report indicates, so the GNSO Council and Board know, that we discussed these issues and the described the potential perils of the public interest approach so that they can take advantage of the analysis and thought product done to date.

Thanks very much,

Kurt

On Aug 3, 2020, at 3:38 PM, Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>> wrote:

Jeff,

While I appreciate your effort I cannot support a proposal that is complex, creates more ICANN bureaucracy. and will undoubtedly result in more disputes because it does not rely on any objective criteria.   I also don’t see any reason why if there is more than one other application for the same or a confusingly similar string (eg., there is a contention set for the string), then none of those applications will be allowed to be a Closed Generic.  That is like saying if there is a contention set that no Community Applications are permitted.

As it is obvious by now, I strongly believe that closed generics should be permitted and that there is no reasonable justification to exclude them or put a public interest or other restriction on them and will advocate for this outcome as best I can.  However, if that does not come to pass I think it would be better to have no closed generics than an public interest restriction that cannot be implemented and will only result in disputes, uncertainty, and delay in the next round.

Generally and overall, I believe that if we want to have any hope that the next round will be successful in any way, that we should be seeking simpler solutions that are easier and more realistic to implement and are based on objective criteria and avoiding more complex and subjective solutions, especially those that require the creation of new panels and other structures, at all costs.

Best regards,

Marc H. Trachtenberg
Shareholder
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel 312.456.1020
Mobile 773.677.3305
trac at gtlaw.com<mailto:trac at gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/>

<image002.jpg>

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jeff Neuman
Sent: Monday, August 3, 2020 3:51 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Very High Level Proposal on Closed Generics - PERSONAL PROPOSAL

*EXTERNAL TO GT*
This proposal is being sent out by me personally and NOT the Leadership Team (who hasn’t even seen this yet).  It is not an indication of where I think we are, but just a VERY HIGH LEVEL approach to solicit comments.

I appreciate all of the proposals that have come in recently on how to deal with Closed Generics, but I wanted to try a much higher level proposal that attempts to take points from a number of previous proposals and extract some of the points where I thought we had some agreement.  The more in the weeds we get, the more it appears we get stuck.  I, at one time, also had a lot of details in my original proposal, but I stripped them all out.

We need to recognize that there is no definition of public interest.  The only real viable ones you can find in legal dictionaries or other treatises and other documents is usually circular – namely public interest is that which the public deems it to be.

So, I tried to go back to the basics:

********************************************************************
Background
The GAC issued advice to the Board on the New gTLD Program through its Beijing<https://urldefense.com/v3/__https:/gacweb.icann.org/download/attachments/27132037/Final_GAC_Communique_Durban_20130718.pdf?version=1&modificationDate=1375787122000&api=v2__;!!DUT_TFPxUQ!XV0iOUDqkkSOegcgoPRsTpHbRhD8Z1dp-rXGubkkrNlzuVps9GMxf94N-l1sSMqLlXw$> Communiqué dated 11 April 2013. In the Beijing Communiqué, the GAC advised the Board that, "For strings representing generic terms, exclusive registry access should serve a public interest goal".

As part of its response to the GAC Advice, ICANN solicited comments from the community on this issue.  Comments from the community expressed a diversity of views on how, and whether the Board should implement the GAC advice.

Ultimately, on 21 June 2016, the ICANN Board passed a resolution<https://urldefense.com/v3/__https:/www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en*2.a__;Iw!!DUT_TFPxUQ!XV0iOUDqkkSOegcgoPRsTpHbRhD8Z1dp-rXGubkkrNlzuVps9GMxf94N-l1siw_bg6Y$> “requesting that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue.”

Proposal for our Draft Final Report

The Implementation Review Team must create a Framework for Evaluating Closed Generic applications to determine whether those applications “serve a legitimate public interest goal.”

In order to serve a legitimate public interest goal, the following criteria, at a minimum, must be satisfied:

  *   The TLD must serve a broad base of end users above and beyond the interests of the individual registry operator. For purposes of this statement, end users mean those toward which the content and use of the TLD is directed.  End Users do not mean domain name registrants.
  *   The TLD must serve a demonstrated and legitimate need of that broad base of end users.
  *   A governance council of “end users” must be established to ensure the TLD continues serving its legitimate public interest (“Governance Council”).

The following factors should be used by the IRT to create such a Framework and determining whether the proposed Closed Generic application “serves a public interest goal.”

•         Why is the selected string necessary for your registry / Why did you choose this string at the exclusion of others?
•         How does the proposed closed registry serve the public interest?
•         How does the proposed mission and purpose of the registry support such use and why must it be a closed model?
•         What is the likely effect on competition of awarding the proposed closed registry for the same or similar goods and/or services?
o    Are there other strings already delegated that serve the Applicant’s industry which can be utilized by competitors?
o    If not, are there reasonable alternatives to the string that may be utilized by other entities in the Applicant’s industry in the then-current round or if proposed during a subsequent round?
•         Who are the intended “users” or beneficiaries of the TLD?
•         What are the benefits to those users or beneficiaries of the TLD?
•         What will the governance of the TLD be and who will constitute the Governance Council?

Rules

  *    If there are more than one other application for the same or a confusingly similar string (eg., there is a contention set for the string), then none of those applications will be allowed to be a Closed Generic.
  *   A Public Interest Panel shall be appointed by the ICANN Board to evaluate whether the application and the proposed use of the Closed Generic TLD serves a legitimate public interest goal.
  *   All commitments made by the TLD Applicant in demonstrating its use will serve a public interest goal must be incorporated into the Registry Agreement as Public Interest Commitments.
  *   The Closed Registry may not modify any Public Interest Commitments unless those changes are approved by the Governance Council and the ICANN Board after a public comment period.
  *   In the event the Registry is assigned to a third party (either by Agreement or by operation of law), all of the terms and conditions imposed on the original registry must be absorbed by the new registry including the Public Interest Commitments.
  *   A Closed Generic may at any time be converted to an Open (or Open Restricted TLD) at any time, provided that at the time of such conversion, the Registry must follow all of the rules applicable to Open TLDs, including the launch of a Sunrise Process, Trademark Claims, etc.  In addition, the Registry must give up the use of all names other than the 100 names reserved under the Registry Agreement for the operation of the TLD.

<image004.png>
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com<https://urldefense.com/v3/__http:/jjnsolutions.com__;!!DUT_TFPxUQ!Rjhvan6AehRISaVu9bzgIJ4jWV3o3qPxdCcOhBa4UXL29We0qs_wpv8icSj8l4taanNW2A$>

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