[Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

Sun Jul 12 13:09:49 UTC 2020

Sneak preview of my solution for this WG (comes at the end of my message):

I suggest that we state in our report that:

•             This WG is bound to the 2007 policy advice

•             The issue of closed generics wasn’t regulated in the 2007 policy advice

•             As a result it wasn’t regulated in the 2012 AGB

•             This WG couldn’t agree to any solution as to how closed generics could be introduced – or banned.

•             There is no fall back solution for this WG: as the issue was neither regulated in the 2007 policy advice nor the 2012 AGB

•             Therefore we can’t make any assertions about the topic at all other than that we are waiting for new policy advice as requested by the board

Dear Rubens,

I hear you. But as Jeff so eloquently stated in his message shortly after yours:

The issue we have, as you probably are aware by now, is that opponents of closed generics do not believe that there is any way at all that closed generics could serve a public interest goal and therefore have been immovable on any tests or criteria that have been proposed to measure public interest.  On the other hand, there are proponents of closed generics that are trying to suggest mechanisms which many have found to be extremely broad.

So long as opponents of closed generics believe the status quo to be that there is a “ban” on closed generics, there has been little to no incentive for them to develop a compromise position.  Alternatively, those that cite the fact that the AGB had no prohibition on closed generics, believe that the status quo from a policy perspective is that there is no such prohibition. 

Therein lies the dilemma that we have and why we must insist that the language in this section of the report be objective and not lean in either direction.  

As suggested in my yesterday’s message:
The dilemma we are facing is rooted in “Neuman Rule” of this forum (the 2012-AGB-revison): As long as we do not find any agreement – we “fall back” to the status quo (the 2012-AGB). But (as described by Kathy and George Sadowsky – among many others) there is no status quo regarding closed generics until  such time when the gNSO has developed new policy advice. But we do not develop policy advice here in this forum. This forum is simply the wrong place to handle the issue. We aren’t mandated to leave the 2007 Policy Advice picket fence.

In fact this forum can’t even decide (or order the gNSO) to start the formal PDP on “closed generics”. We aren’t mandated. It was the board that instructed the gNSO. We shouldn’t inject ourselves in something that is outside of our scope. All we can do is stating that we have not found any workable solution to the treatment of “closed generics” within the 2007 policy advice. That’s already the end of what we can do.

The gNSO has now to exercise what the board instructed them (5 long years ago) to do: create policy advice regarding closed generics – and on basis of that advice we can implement rules into the AGB.

Rubens: Yes. in 2007 we couldn’t find a solution. So what? Now we have to find one. The great benefit of a gNSO PDP that results in policy advice is that we aren’t bound at all anymore to the 2007 policy advice. There are no fallback position. We will be forced to come up with advice – in whatever way, shape or form. What are we scared about? 

But this forum here (2012-AGB-revision) has to let go of the issue: we are not mandated to create policy advice. We spent too much energy on this topic. This forum (as nicely described by Jeff) suffers from the dilemma of “solution denial” being awarded with “fallback to the status quo”. A formal PDP resulting in policy advice doesn’t face such dilemma: there won’t be any fallback position – no status quo.

So I suggest that we state in our report that:

*         This WG is bound to the 2007 policy advice

*         The issue of closed generics wasn’t regulated in the 2007 policy advice

*         As a result it wasn’t regulated in the 2012 AGB

*         This WG couldn’t agree to any solution as to how closed generics could be introduced – or banned.

*         There is no fall back solution for this WG: as the issue was neither regulated in the 2007 policy advice nor the 2012 AGB

*         Therefore we can’t make any assertions about the topic at all other than that we are waiting for new policy advice as requested by the board

We can’t allow or deny closed generics. In fact we can’t say anything about them. Not our mandate. We can only say that we are waiting for policy advice by the gNSO as directed by the board in 2015.

All of the above is of course my own opinion – but if is misrepresented something: please let me know.

Thanks,

Alexander

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Rubens Kuhl
Sent: Sunday, July 12, 2020 12:57 AM
To: Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

Alexander,

It's very unlikely that the GNSO Council will initiate a PDP just to reach the same lack of outcome we reached. 

And if the Council doesn't realise that, the same outcome is still very likely to happen in a new PDP. 

It's hopeless to repeat the same process and expect a different outcome. 

Rubens

On 11 Jul 2020, at 17:35, Alexander Schubert <alexander at schubert.berlin <mailto:alexander at schubert.berlin> > wrote:

Kathy, Paul,

In the 2007 gNSO PDP the issue of "closed generics" has not been defined; but was left open. Accordingly the 2012 AGB was reflecting this policy vacuum; which forced the board to intervene.

After the 2012 application round the Board gave clear instructions to the gNSO to develop new policy advice. A mini-micro "2006/2007"-style PDP: just for the very narrow aspect of "closed generics".

We are right now exercising the "2012-AGB revision process"; it is authorized to revise the 2012 AGB; it is bound in this exercise by the 2007 PDP. This current forum has explicitly stated that it will abstain from leaving the 2007 policy advise picket fence.

As a result this current forum is not authorized to create new policy advice.

I guess we all hoped that somehow we all agree to a solution - then implement it; and hence avoid a formal (partial) new PDP.

It seems we have now reached agreement within this forum that this 2012-AGB-revision will not come up with a solution.

That's not a problem at all.

The board didn't require this forum to solve the problem. It instructed the gNSO to engage in a policy development process leading to new policy advice (in regard to the issue of "closed generics").

So I suggest we stop wasting precious time: The gNSO has only about 1 year left to create new policy advice regarding the simple question: how shall closed generics be treated. We here are out of depth and need to let this go.

The NGPC specifically required the gNSO:

   "A Policy Development Process with respect to operating exclusive generic strings in the 'public interest' should be undertaken by the community. Policy issues on 'closed generic' TLDs should be resolved through the multistakeholder process."

This group here does not have the mandate to conduct a PDP that results in policy advice. We have concluded that we can provide no help, draft or suggestions. So let's simply throw the issue of "closed generics" into a tiny black box: "This working group could not resolve the issues around 'closed generics' and will therefore make no suggestions to their treatment. The gNSO will engage in a PDP - and upon their policy advice a final regulation will be implemented at such time it is available."

Closed generics aren't regulated now. So there is nothing for us to say about it. We can continue our 2012 AGB review (leaving closed generics in the black box) - and once the formal PDP creates a solution for closed generics: we add it afterwards. 

So these are the steps the gNSO (not this group here) will have to initiate:

"The rules for the revised GNSO PDP are outlined in  <http://www.icann.org/en/about/governance/bylaws#AnnexA> Annex A of the ICANN Bylaws and the  <https://gnso.icann.org/council/annex-2-pdp-manual-16dec11-en.pdf> PDP Manual. In addition, the graphics shown below have been developed to facilitate understanding of the  <https://gnso.icann.org/en/basics/consensus-policy/pdp#general> different steps of the PDP which include:

*     <https://gnso.icann.org/en/basics/consensus-policy/pdp#Identification> Issue Identification

*     <https://gnso.icann.org/en/basics/consensus-policy/pdp#Scoping> Issue Scoping (What is the issue?)

*     <https://gnso.icann.org/en/basics/consensus-policy/pdp#Initiation> Initiation (Moving ahead with a PDP or not?)

*     <https://gnso.icann.org/en/basics/consensus-policy/pdp#WG> Working Group (Exploring the issue in depth and developing recommendations)

*     <https://gnso.icann.org/en/basics/consensus-policy/pdp#Council> Council Deliberation (Assess / affirm WG recommendations)

*     <https://gnso.icann.org/en/basics/consensus-policy/pdp#Board> Board Vote (Final approval)

*     <https://gnso.icann.org/en/basics/consensus-policy/pdp#Implementation> Implementation"

Can we get this done within 3 month? The benefit of a new (very narrow defined) PDP: there is no "fallback solution". We are forced to create a compromise. It's completely seperate from our scope & group here.

Who can initiate a PDP? Could ALAC do that? Is someone from ALAC reading this? 

Thanks,

Alexander

Sent from my Samsung device

-------- Original message --------
From: Kathy Kleiman <kathy at kathykleiman.com <mailto:kathy at kathykleiman.com> > 
Date: 7/11/20 18:46 (GMT+02:00) 
To: "McGrady Paul D." <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com> >, Rubens Kuhl <rubensk at nic.br <mailto:rubensk at nic.br> >, Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> > 
Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text 

Trust me, I understand the frustration. Perhaps more than anyone.

But we do not get to make up our own facts. The Board has acted, and the GAC has acted. We must operate within those constraints. 

Best, Kathy 

----- Original Message -----

From:

"McGrady Paul D." <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com> >

To:

"Rubens Kuhl" <rubensk at nic.br <mailto:rubensk at nic.br> >, "Marc Trachtenberg via Gnso-newgtld-wg" <gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> >

Cc:

Sent:

Sat, 11 Jul 2020 12:18:37 +0000

Subject:

Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

+1 Rubens.  We can’t substitute the facts as they are with Kathy’s view of how they should be.  

I too am disappointed that this WG did not reach agreement on an improvement to the status quo as the Board asked us to.  Some of us tried by introducing thoughts on what a so-called closed generic in the public interest would look like.  But, those ideas didn’t stick.  Our failure to come to an agreement doesn’t make the fact that we didn’t, somehow, “inaccurate.”  What happened, happened, and editorializing about what that means is just another way of trying to get an individual view of what the status quo is adopted by this group.  We have been over and over and over this and I, very kindly and respectfully, resist this latest attempt.

Best,

Paul

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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, July 10, 2020 3:39 PM
To: Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> >
Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

On 10 Jul 2020, at 17:15, Kathy Kleiman <kathy at kathykleiman.com <mailto:kathy at kathykleiman.com> > wrote:

Hi Jeff,

I'm sorry, but the language below is not accurate, and it must be.  There is no way this group can agree to allow Closed Generics outside the public interest framework required by the GAC in its Advice. Further, absent our agreement (and the GNSO’s approval), we have not meet the requirements of the Board's resolution on Closed Generics, and the bar does not simply "time out."

The group haven't agreed on anything, so... 

I offer the language below as a substitution -- to accurately reflect the two “Closed Generic” policy requirements before this WG and the GNSO --  the 2015 Board Resolution AND the GAC Advice.  

No Agreement: The Working Group was unable to come to agreement on a policy that meets the GAC Advice requirements for “exclusive registry access for generic strings serving a public interest goal.”  In keeping with the requirements of the 2015 Board resolution, as clarified in the Rationale, the GNSO must “inform the Board on a regular basis with regards to the progress on the issue.” It has not done so. 

“The NGPC [ICANN Board New gTLD Program Committee] is also 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. The President and CEO should provide the GNSO with information needed to support this request.” https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en

Accordingly, in the absence of agreement by the Working Group on any new policy consistent with the GAC advice on public interest goals, the status quo is that Closed Generics would not be allowed in subsequent rounds in line the Board’s resolution. The GNSO has not formulated or approved a policy in accordance with the Board’s wishes, as stated in the Rationale, and has not reported any progress to the Board, as requested in the Rationale. Therefore, the Board’s resolution holds until such a policy is formulated and formally approved by the GNSO. 

It's already known that we can't agree on what the status quo is, so retrying it one way or the other doesn't cut it. 

Rubens

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