[Gnso-newgtld-wg] What behaviors would we consider undesirable?

Thu Jan 23 17:10:01 UTC 2020

Dear Jeff:

It would appear that we are coming to this from rather different perspectives.

Regarding definitions, I would not heave to any particular one. Oxford (OED), Webster and Cambridge each have slightly different definitions.
Regarding deceiving or cheating 'someone', the prime candidate is of course ICANN itself, and - indirectly -  the legitimate beneficiaries of the ICANN budgets, in this context most likely, applicant support. We need look no further.

So, if we do need external guidance, I would rather look to the jurisprudence of competition policy in the EU, US and elsewhere.

However, more generally, it is down to ICANN to determine what is allowed (legal) and what is not allowed (not legal).  That is s considerable power. Were it not so we wouldn't be getting scores of participants on our conference calls! We are not able to pass the buck to other people's dictionaries.

I have pointed out on several occasions that incumbents should not be determining the terms and conditions for new entrants. Your concluding paragraph, below, is an eloquent illustration of that concern.

Regards,

Christopher

> On 20 Jan 2020, at 23:13, Jeff Neuman <jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>> wrote:
> 
> Thanks Christopher.
>  
> Collusion is defined <https://dictionary.cambridge.org/us/dictionary/english/collusion> as “agreement between people to act together secretly or illegally in order to deceive or cheat someone.” I am not sure we can say for a FACT that collusion occurred “in order to deceive or cheat someone.”  Yes, parties did work in secret and came up with “agreements”, but the second element or deceit or cheat is just as important.
>  
> In the last round the Applicant Guidebook not only allowed working in private to resolve contention sets, but it encouraged it.  The mere act of having private auctions does not equate to there being collusion.
>  
> That said, we still may want to list collusion as an “undesirable activity”; but collusion would include the “in order to deceive or cheat someone.”
> 
> The second question, however, is do we believe that private auctions, in and of themselves, for the New gTLD Program, should be considered “undesirable activity.”  Although not “collusion”, we could still attempt to disallow them.
>  
> That is what we are trying to get a sense of from the group.  Are Private Auctions (whether done legitimately or not) undesirable for resolving contention sets?  Does it harm the reputation of ICANN or the program?  
>  
> Please note, as one of the Co-Chairs, I am not taking a position on this, other than to note that many of the comments (including from the GAC, ICANN Board, NCSG, some registries, BC, Gov’t of India, etc.) stated in their comments that private auctions where funds are distributed back to the losing applicants, may not be desirable.  Other groups, including some registries, the RrSG, the IPC, Neustar, BRG, etc. however, did support private auctions where are applicants agree to participate.
>  
> Thanks.
>  
> Senior Vice President 
> Com Laude | Valideus
> D: +1.703.635.7514
> E: jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>
>  
> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of lists at christopherwilkinson.eu <mailto:lists at christopherwilkinson.eu>
> Sent: Monday, January 20, 2020 3:44 PM
> To: gnso-newgtld-wg at icann.org
> Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable?
>  
> Good evening:
>  
> I strongly 'suggest' that we do not want to replace the word 'Collusion' in this context.
>  
> 1. Collusion took place in the last round, otherwise there could not have been any private auctions.
>  
> 2. The fact that we are discussing this at all strongly suggests - to the outside world - that we would prefer to dissimulate that fact.
>  
> 3. ICANN is the regulator of the conditions of competition in this sector; if we cannot deal with this matter, it severely undermines the original rationale for having ICANN at all.
>  
> Regards
>  
> CW
>  
>  
> 
> 
> On 17 Jan 2020, at 17:30, Aikman-Scalese, Anne <AAikman at lrrc.com <mailto:AAikman at lrrc.com>> wrote:
>  
> I put some suggested language in the Google doc to replace the word “Collusion”:
>  
> https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVTjKwk/edit?usp=sharing <https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVTjKwk/edit?usp=sharing>
> Anne
>  
>  
> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Rubens Kuhl
> Sent: Friday, January 17, 2020 2:58 AM
> To: Dorrain, Kristine <dorraink at amazon.com <mailto:dorraink at amazon.com>>
> Cc: gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>
> Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable?
>  
>  
> Kristine,
>  
> This is a not a reasonable business adjustment. If the contention set seems "unbeatable", one could withdraw or simply wait the appropriate refund. A similar way to see #2 is a participant in a race that starts extorting other racers when it realises it won't win the race. 
>  
> It doesn't matter that the original intent had good faith; if someone switches to a bad behaviour on the fly, then it's now up for a new assessment of its attitude. 
>  
>  
> Rubens
>  
> 
> 
> 
> On 16 Jan 2020, at 20:57, Dorrain, Kristine <dorraink at amazon.com <mailto:dorraink at amazon.com>> wrote:
>  
> Hi Rubens, with respect to #2, you admit good faith intent at the time of application.  At what point would an applicant’s reasonable business adjustment reacting to the unforeseen business impact of third party applications and business decisions switch the first applicant’s good faith to bad faith?  It seems like the community would get to use the benefit of hindsight to judge the reactionary business decisions made by other applications in their business strategy. 
>  
> Kristine
>  
> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Rubens Kuhl
> Sent: Thursday, January 16, 2020 1:14 PM
> To: gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>
> Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable?
>  
>  
> <Leadership Hat Off>
>  
> I will start with two different although similar bad behaviours:
> - Apply with no intention to actually run the TLDs, just to get into private auctions and profit from losing them. 
> - Apply with intent to run the TLDs, but after contention sets are revealed, change strategy to profit from losing some TLDs instead of fighting to get them. 
>  
>  
>  
> Rubens
>  
>  
> 
> 
> 
> 
> On 16 Jan 2020, at 17:17, Jeff Neuman <jeff.neuman at comlaude.com <mailto:jeff.neuman at comlaude.com>> wrote:
>  
> All,
>  
> On the call early this morning (for some of us), while we were discussing the goals/objectives to consider when selecting a mechanism of last resort to resolve string contention, a very important question was asked by a participant on the call.  The question demonstrated that what one person believes is “Bad Faith” other people may not believe is “bad faith” with respect to mechanisms to resolve contention sets.
>  
> So, with the e-mail chain, I would like for members of the Working Group to discuss what behaviors they would consider to be of the type that we would like to preclude?  And by the same token, what are the types of activities that we know we would like to allow.
>  
> For example, we believe from most of the comments that have come in as well as in our discussions, that some forms of private resolution have been deemed acceptable.  This includes the creation of joint ventures between applicants (assuming public comment, etc.), potentially revising applications to address concerns (eg., trademark owner agrees to withdraw its application if other applicant agrees to mitigate trademark abuse), 2 trademark owners agree to modify strings to enable both to have their own TLDs (eg., .deltafaucets or .deltaair)), etc.
>  
> We have also heard from the ICANN Board that they may believe that participating in private auctions with the sole purpose of losing and using those to fund other auctions may not be as desirable. 
>  
> Though the next call with not be on this topic, we did want to put this issue out on e-mail.  Please discuss.
>  
> Thanks.
>  
>  
>  
> Jeff Neuman
> Senior Vice President 
>  
> Com Laude | Valideus
> 1751 Pinnacle Drive
> Suite 600, McLean
> VA 22102, USA
> 
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