[Gnso-newgtld-wg] New Thread on Closed Generics

trachtenbergm at gtlaw.com trachtenbergm at gtlaw.com
Thu Feb 20 07:20:53 UTC 2020


I appreciate your responsiveness to my criticism which was intended to be constructive but I think was probably more abrasive than necessary.  Stating our views as fact is something that all of us – including myself - need to be conscious of and try to avoid.

With respect to your posting below, I do not find it offensive but rather I agree with both your characterization of the Board’s position and your proposal to separate out the issue of closed generics.  Perhaps we can get feedback on your proposal and hopefully get consensus on this approach.

Best regards,

Marc H. Trachtenberg
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> | http://www.gtlaw.com<http://www.gtlaw.com/>

[Greenberg Traurig]

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Alexander Schubert
Sent: Wednesday, February 19, 2020 12:43 PM
To: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] New Thread on Closed Generics

Dear Jeff, dear all,

Jeff, you wrote:
“If we keep reverting to the conversation of what will be the situation if we don’t agree ….”

I think we have to put special emphasis on this aspect in regard to the issue at hand (Closed Generics):
It is my understanding that we are currently scrutinizing the 2012 AGB and its implementation (based on the 2007 gNSO policy advice as adopted by the board), trying to iron out flaws, and rely on “community consensus” for any potential changes. As a result in absence of “consensus” we do not change 2012 AGB provisions.

The issue at hand (“Closed Generics”) has been discussed in the 2007 PDP – but these have neither explicitly permitted, nor denied. Several members here assert now, that this constitutes an “implied eligibility” for Closed Generics; that therefore in absence of community consensus as a fallback the AGB should not be changed; that therefore Closed Generics (remain) eligible – unless the then current board would issue a new regulation regarding Closed Generics once the application roster is public.

I argue, that in the case of Closed Generics we are not simply following 2007 Policy Advice. In my mind there was a clear mandate by the board in June 2015 to create new policy advice for this very narrow set of potential applications – not just merely take the 2007 policy advice as basis for new rules. I quote the board from June 2015:
“….. subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs ….”

I read this the following way; essentially the board states:

  *   Yes, we adopted the 2007 Policy Advice
  *   Yes, that Policy Advice did not explicitly regulate Closed Generics
  *   We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest
  *   As a result we blocked the contracting of 2012 Closed Generics
  *   The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics
  *   We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics

My suggestion would be to separate the issue of Closed Generics from our other work, and handle it as creation of Policy Advice – as mandated by the board in 2015. In my view that implies that there is no Fallback Solution. I read it the way that the board explicitly stated that the current advice is not enabling it to make sound decisions; and that it insists on clear instructions on how Closed Generics are being handled. So in my opinion for once we are requested to literally create new Policy Advice.



(Marc: I value your constructive criticism. Do you find the above posting still “offensive”?)

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jeff Neuman
Sent: Mittwoch, 19. Februar 2020 04:47
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] New Thread on Closed Generics


I am in London, so my hours are a little off from what they normally are, but I see there has been some excellent discussion on this topic.  I know there has been a lot of discussion about what happens if we can’t all agree on a topic and the application of what has been called the “Neuman Rule” (which by the way is flattering 😊).

But that said, I want us to try an exercise of thinking about this issue from a fresh lens and trying to see if there are any scenarios in which a so-called closed generic could be applied for and accepted.  IF we keep reverting to the conversation of what will be the situation if we don’t agree, then that may serve as an impediment to all of us working to think about this issue in a collaborative creative way.  Yes, we will eventually have to deal with that important question for this and some other issues.  I am not denying that.  But the optimistic side of me still believes firmly in the multi-stakeholder model and that if we put our collective minds together on this and other solutions, we may reach some surprising and satisfying results.

So, I want to again put up the GAC Advice because I think it is important here:  “For strings representing generic terms, exclusive registry access should serve a public interest goal."  The GAC did not advise an outright ban.  Nor did they define the criteria for what they considered would “serve a public interest goal.”  The Working Group in its Initial Report provided some potential options for public comment.  Alan has presented a additional proposal (Thank you Alan!).

The main question for next call is for those that have been advocating the complete ban is whether or not there is any scenario that they can envision an application for excusive registry access could “serve a public interest goal.  If the answer is no from a substantial amount of people, then we will end the discussions.  If the answer is yes, then we can continue the discussions and yes, discuss this in a face to face.  But if the answer is no, then having a face to face meeting on this will not be productive.

The answer to the above question should in no way depend on what the status quo was or is.

DISCLAIMER:  There are some the believe I (or Cheryl) have an interest in seeing this go in one direction or another.  But the truth is that the leadership does not.  My company may have a position, but they understand that I am not acting on behalf of my company here and in fact, I have not been a part of the comments they have been or will be developing.

Jeff Neuman
Senior Vice President

Com Laude | Valideus
1751 Pinnacle Drive
Suite 600, McLean
VA 22102, USA

M: +1.202.549.5079
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