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

George Sadowsky george.sadowsky at gmail.com
Sun Jul 12 13:35:12 UTC 2020


Thanks, Jeff, for a thorough and and balanced response.  I have several comments and suggestions, interspersed in the text below.

> On Jul 11, 2020, at 11:50 PM, Jeff Neuman <jeff at jjnsolutions.com> wrote:
> 
> Thanks George.  
> 
> This is helpful, but I am not sure that any part of the Board resolution or rationale necessarily supports the notion that the default position be an outright ban.  In reading the resolution and rationale again, one could read that as meaning that the board was not looking to ban closed generics altogether, but was looking for guidance as to how applications for closed generics could be evaluated as “serving a public interest goal.”

You are correct; there was no permanent "ban".  However, I believe that the resolution did mandate a "hold" on consideration of such applications until an acceptable policy had been formulated.  .  If the GNSO had a mechanism for quickly determining a policy that could have been introduced shortly after the resolution, even  up to 6-12 months later, I suppose they could have come back to the Board and said, "OK, here's our policy, can we please resurrect those generic applications to see if they now pass muster?"   MY guess is that it would have had to wait for GAC comment, given that the GAC's conditions were pertinent on putting a hold on the applications in the first place, and the effort to reintroduce the applications in that round would not have been successful.

> And frankly, I would have loved the Board to have phrased their request in a more precise manner.  Rather than asking for blanket advice on the topic of closed generics, it should have asked the GNSO to develop the criteria for measuring whether an application serves a public interest goal. That would have started our work on better footing.

I agree.  We should have seen that as a more precise way to get information that would have been relevant to the issue.  I suppose that part of the problem (not an excuse!) was that we had quite a few issues to deal with, some anticipated, some not, that were taking time to deal with, and there was a great deal of pressure from applicants to move more quickly so that they could begin to capitalize on their investments.  One way of dealing with the situation was to postpone what we felt we could postpone, and I think that we realized that the generic string issue was not going to be easily settled.

> MY PERSONAL VIEW AND HONEST ASSESSMENT FOLLOWS:
> 
> 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.

I regret that I was late in joining the group.  One way of attacking the issue would be for those who believed that there existed such "meritorious generics strings" capable of being implemented and serving the public good, they should be proposed and evaluated.  Having examples often provides something concrete to discuss, including what proper use and misuse are and how they  might be defined more generally, followed by how the goals of meritorious strings can be protected from misuse, etc.  I don't know if any of this was attempted.   

> 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.

Neither position seems defensible.  For the first argument, there isn't a "ban;" there's a "hold" pending GNSO action.  And for the second, the resolution with its rationale makes it reasonably clear that the Board's decision adds a requirement to the AGB. 

> 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.  We must only use language in the resolution itself (and the rationale).   But we should not be interpreting the language any further.  The Board never uses the term “prohibition” or “ban”.  The Board of course also never states that it should be allowed and therefore we should be stating that in the section either of course.

But doesn't "using the language" in the resolution mean that you are implicitly interpreting it?  Soem of the implications are obvious, why  not state them.  Also, if the document you are providing to ICANN is meant to elicit public comment and get advice and you have a polarized working group, why not allocate, say, a half page or more of the report to each pole and ask them to present their case as best they can?  That will give anyone who wishes to comment a firmer grasp of the issues.  Without doing that, I suspect that you will get comments more based on preference than analysis, and you already have a sample of those from the working group.  

> We will be soliciting comments of course on this section and will send a letter to Board asking for its comments as well (just as we did for the Initial and Supplemental Initial Reports).  I would love for them to come back and clarify their request.

Unfortunately, it's a very different Board now.  But at least you may get more clarity on the issue.
> 
> SIDE NOTE:  On the reporting aspect, the Board has been kept up to date on our deliberations on this issue and others (from my understanding) through ICANN Org (first Akram, then Cyrus) and now the Board has 2 liaisons that observe our work (Becky and Avri).  No other formal mechanism for such reporting was established.
> 
> Sorry for the long note, but I truly do appreciate your guidance on this subject and look forward to continuing the discussion.

Sorry for the long reply, but I hope that it leads to a more balanced conversation.

George

- Jeff
> 
> Get Outlook for iOS <https://aka.ms/o0ukef>
> From: George Sadowsky <george.sadowsky at gmail.com>
> Sent: Saturday, July 11, 2020 8:59:14 PM
> To: Jeff Neuman <jeff at jjnsolutions.com>
> Cc: Kleiman Kathy <kathy at kathykleiman.com>; gnso-newgtld-wg at icann.org <gnso-newgtld-wg at icann.org>
> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
>  
> Jeff, and all,,
> 
> I've looked at what Kathy posted, and I think that the working group may want to do so again and reconsider what I believe is the working group's current position.  I speak here only as an individual having a stake in the continued successful evolution, improvement and use of the Internet.
> 
> Every resolution passed by the Board in the last 10 years had had a "resolved" component and a "rationale" part, and I believe that this practice continues to this day.  The rationale part was added to provide more extensive explanation of what the resolution says and why it says it.  It might surprise you to know that during my tenure the Board spent as much time wordsmithing the rationale as it spent wordsmithing the resolution itself.  We wanted to ensure that there was an adequate understanding of what we said.
> 
> I admit that the resolved part of the resolution in question has an ambiguity in it, which I think has led to your current quandary that you don't know what the current status quo is.  However, I think that the rationale provides more information and removes much if not all of the uncertainty about the status quo.  Here is one of the paragraphs from the rationale:
> 
>> “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 <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en>
> 
> 
> First, the text refers to the GNSO's plans for solving this issue for subsequent rounds (plural) of the New gTLD program and report progress to the Board.  This leads me to conclude that the Board's advice in the resolution applies to both this and to other rounds in the future.  If the Board's advice were to expire after the 2011 round, there would be no point for the Board to provide any advice or make any requests for the future.  The board was interested in having the status quo, i.e. prohibition until the GNSO acted, followed until the GNSO could come up with its own policy.  Second, the Board specifically asked the GNSO tomake progress on this issue in the future and report such progress to the Board.  From what I now understand, there has been little progress and no reporting of any formal sort.
> 
> I conclude that the status quo is now well defined as a prohibition on generic strings until such time as the GNSO can report back an agreed upon policy to the Board, and that at present there is no agreed upon such policy.
> 
> Jeff, I hope that the working group will consider and accept the thrust of this conclusion.  IMO it will be a significant process error and a public embarrassment if the working group consciously decides to ignore the clarification that the 2015 NGPC (passed on behalf of the full Board)  formulated and incorporated into their resolution text.
> 
> I expect to be on the call next Monday/Tuesday for further discussion of this issue if anyone wants to do so.
> 
> George  
> 
>  On Jul 11, 2020, at 1:38 PM, Jeff Neuman <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com>> wrote:
>> 
>> Kathy,
>>  
>> Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out.  The public can submit comments and we will then again revisit after the comments are received.  And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens). 
>>  
>> But we have to cut off the conversation as we just seem to be going around and around on the same points.  You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite.  At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other.  That is the way it must remain absent agreement by the group otherwise.
>>  
>> <image001.png>
>> Jeff Neuman
>> JJN Solutions, LLC
>> Founder & CEO
>> +1.202.549.5079
>> Vienna, VA 22180
>> Jeff at JJNSolutions.com <mailto:Jeff at JJNSolutions.com>
>> http://jjnsolutions.com <http://jjnsolutions.com/>
>>  
>> From: Kathy Kleiman <kathy at kathykleiman.com <mailto:kathy at kathykleiman.com>> 
>> Sent: Friday, July 10, 2020 4:15 PM
>> To: Jeff Neuman <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com>>; 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
>>  
>> 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."
>>  
>> 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 <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. 
>> 
>> ---------------
>> 
>> Best, Kathy
>> 
>> ----- Original Message -----
>> From:
>> "Jeff Neuman" <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com>>
>>  
>> To:
>> "McGrady Paul D." <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com>>, "gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>>
>> Cc:
>>  
>> Sent:
>> Thu, 9 Jul 2020 18:18:30 +0000
>> Subject:
>> [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
>> 
>> [KK: Replacing]
>> Fair enough.  Here is the latest version with Paul’s edits:
>> No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also called “Closed Generic” gTLDs) were delegated in the first round.
>> It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62>. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree on “policy advice concerning exclusive generic TLDs.”
>> 
>> Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (e.g., no changes recommended). However, in this unique case, the Working Group was not able to agree on what the Status Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either (i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them), (ii) Closed Generics would not be allowed (noting that none were delegated in the 2012 round), or (iii) Closed Generics would be allowed if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board).
>> 
>>  Jeff Neuman
>> 
>> JJN Solutions, LLC
>> Founder & CEO
>> +1.202.549.5079
>> Vienna, VA 22180
>> Jeff at JJNSolutions.com <mailto:Jeff at JJNSolutions.com>
>> http://jjnsolutions.com <http://jjnsolutions.com/>
>>  From: McGrady, Paul D. <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com>> 
>> 
>> Sent: Thursday, July 9, 2020 2:14 PM
>> To: Jeff Neuman <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com>>; gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>
>> Subject: RE: Proposed Compromise Language on Closed Generics
>>  Thanks Jeff.
>> 
>>  I actually think that is a step backwards as there was no ban (or “not allowed”).  There were 3 options, none of which were a ban:  1.  Change  2.  Defer to the next Round or 3.  Withdraw
>> 
>>  Let’s keep trying.  How about simply deleting the (    ) on all of the options.  They are, ultimately, commentary on the opinions of WG members, so they don’t really add much.  If we can’t do that, then we could say (ii) Closed Generics would not be allowed (noting than none were delegated in the 2012 round).  That would be factual.
>> 
>>  Best,
>> 
>> Paul
>>  From: Jeff Neuman <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com>> 
>> 
>> Sent: Thursday, July 9, 2020 1:09 PM
>> To: McGrady, Paul D. <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com>>; gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>
>> Subject: RE: Proposed Compromise Language on Closed Generics
>>  Thanks Paul.  Each option is followed by a parenthetical explaining why that option could be viewed as the status quo.  So while I take your point, we could amend to read:
>> 
>>  (ii) Closed Generics would not be allowed (as they were not allowed to proceed in the 2012 round)
>> 
>>  Would that work?
>> 
>>  From: McGrady, Paul D. <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com>> 
>> 
>> Sent: Thursday, July 9, 2020 1:11 PM
>> To: Jeff Neuman <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com>>; gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>
>> Subject: RE: Proposed Compromise Language on Closed Generics
>>  Thanks Jeff.  Most of your proposed text is accurate and, therefore, good.  However, “…(ii) Closed Generics would not be allowed (in line with part (a) of the Board’s resolution),…” is not accurate since the Board’s resolution specifically addressed the 2012 Round and not future Rounds, so there is no “in line with”  The inaccuracy jumps out since A would require an applicant to file a closed generic then later amend it.  That would be nonsensical. 
>> 
>>  A more accurate way to state what I think you are trying to say would simply be “…(ii) Closed Generics would not be allowed…”.  
>> 
>>  Otherwise, I think this works.
>> 
>> Best,
>> 
>> Paul
>> To receive regular COVID-19 updates from Taft, subscribe here <https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit <https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>.
>> 
>> 
>> This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
>> 
>> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Jeff Neuman
>> Sent: Thursday, July 9, 2020 11:41 AM
>> To: gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>
>> Subject: [Gnso-newgtld-wg] Proposed Compromise Language on Closed Generics
>>  All,
>> 
>>  There has been some good conversation on Closed Generics and specifically making sure that we stay completely factual.  In light of the e-mails from Paul, Kathy, Anne and others, I wanted to present some text to replace part (a) of the Closed Generics section.  That text is below.  A couple of notes first.
>> 
>>  The materials produced by the Working Group are intended to be as objective as possible and not advocacy pieces for one side or the other. I ask that you look at it for its accuracy and not whether the language makes your position look good or not.
>> 
>> The Chairs have not cut off any discussions on this topic at all.  If you really believe this to be the case, you are free to report this to the GNSO Council Liaison to escalate.  But to make it clear, leadership has assessed that this Working Group is not able to come to agreement on either the substance of this issue, or even on what the default/status quo would be.  And the discussions so far on the mailing list have proven us correct.  So I would ask that everyone please refrain from accusations that we have cut off discussions inappropriately, or to escalate the issue.
>> The cites for the quotes here are in footnotes (which I did not attach to the body of this e-mail, but can if you would like).
>> If the text below is acceptable, then we will make the corresponding changes in the Rationale.
>> Finally, I know Kathy you were only on the phone during the last call where Package 6 (which included Closed Generics) was on the agenda and discussed.  If you review the chat transcript, you will see that there was no support for including the terms “ban” or “effective ban” as you raised.  Further George Sadowski, who was on the call, in that chat stated that his opinion of what happened was his opinion and not necessarily the opinion of the 2013/2014 Board which is reflected in the resolution itself.  I have the utmost respect for George as he knows from our many conversations, and his views are incredibly important to us, but for the text of the Draft Final Report, we have to include the language of the actual resolution and supporting documentation.
>> *********************************************
>> So, here is the proposed text:
>>  No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also called “Closed Generic” gTLDs) were delegated in the first round.
>> 
>>  It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62>. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree on “policy advice concerning exclusive generic TLDs.”
>> 
>>  Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (e.g., no changes recommended). However, in this unique case, the Working Group was not able to agree on what the Status Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either (i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them), (ii) Closed Generics would not be allowed (in line with part (a) of the Board’s resolution), or (iii) Closed Generics would be allowed if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board).
>> 
>>  Jeff Neuman
>> 
>> JJN Solutions, LLC
>> Founder & CEO
>> +1.202.549.5079
>> Vienna, VA 22180
>> Jeff at JJNSolutions.com <mailto:Jeff at JJNSolutions.com>
> 
>> http://jjnsolutions.com <http://jjnsolutions.com/>
>> [1] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a>
>> [2] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> Ibid.
>> 
>> [1] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a>
>> [2] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> Ibid.
>> 
>> _______________________________________________
> 
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> George Sadowsky                                    Residence tel: +1.301.968.4325
> 8300 Burdette Road, Apt B-472                          Mobile: +1.202.415.1933
> Bethesda MD  20817-2831  USA                                    Skype: sadowsky      
> george.sadowsky at gmail.com <mailto:george.sadowsky at gmail.com>                http://www.georgesadowsky.org/ <http://www.georgesadowsky.org/> 
> 
> 
> 

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
George Sadowsky                                    Residence tel: +1.301.968.4325
8300 Burdette Road, Apt B-472                          Mobile: +1.202.415.1933
Bethesda MD  20817-2831  USA                                    Skype: sadowsky      
george.sadowsky at gmail.com                http://www.georgesadowsky.org/ 



-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20200712/45eb5b97/attachment-0001.html>


More information about the Gnso-newgtld-wg mailing list