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

Mon Jul 13 13:25:33 UTC 2020

Dear Greg,

A long read but worth it (excellently written):

Especially: 

“If you agree, then we must create a policy that allows generic strings serving a public interest goal, with sufficient guidance so that this policy can be implemented with predictability.  I think anything less goes back to the GNSO Council to resolve. We can't make this go away by inaction; it will wander among us as an unfulfilled policy objective, haunting us until we bring it peace.”

You seem to agree that we have to act within the boundaries of public interest. If we all here can agree to it: then a path forward is much clearer.

So a simple question:

*         Do we have WG members that deny the requirement for closed generics having to serve the public interest (“serving a public interest goal”)?

Because in my memory this was where we always got derailed in the past: I remember that some WG members denied the requirement for public interest.

Thanks,

Alexander

From: Greg Shatan [mailto:gregshatanipc at gmail.com] 
Sent: Monday, July 13, 2020 7:23 AM
To: Marc Trachtenberg <trachtenbergm at gtlaw.com>
Cc: Alexander Schubert <alexander at schubert.berlin>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

All,

I've been following this thread and I've gone back to look at the Beijing Communique and the Board Resolution and Rationale and think this through.  I apologize for the length of this post, but at least it's my first in this thread. 

I think the Board was attempting to take a nuanced position. The Board did not exactly adopt the GAC Advice, but neither did they reject it.  To some extent, they kicked the can down the road, and here we are.  

We can start with the GAC advice, which was disarmingly simple: "For strings representing generic terms, exclusive registry access should serve a public interest goal." 

The GAC advice did not ban closed generics.  The GAC advice could have allowed a closed generic to proceed in the prior round -- if the TLD met the safeguard of "serving a public interest goal."  It appears that the Board looked into making this happen; unfortunately, there was no existing capability to make a "public interest goal" determination.  The Rationale shows that the Board asked the GNSO to provide policy guidance on this point, perhaps hoping to fill this gap.  The GNSO demurred, based on timing concerns and the Council's limited remit (and perhaps to avoid de facto "negotiations" with the GAC).

The Board was thus left with no way forward to implement closed generics in the last round, unless they (a) rejected GAC advice (which the Board has generally sought to avoid) or (b) allowed Org to create a public interest test under the guise of "implementation" (which would have opened several Pandora's boxes). Thus, the Board couldn't truly adopt the GAC advice in the prior round.

The Board resolution did not ban closed generics either. A ban would have been at odds with the GAC advice, which expressly offered guardrails for closed generics.  In this spirit, the Board created three options.  None of these provided the result the GAC advice envisioned, but neither did they reject the GAC advice.    Most importantly, a path forward for closed generic applications is among the options.  None of the three options -- switch, withdraw or wait until the next round -- allowed a closed generic application to proceed in the prior round, but the "wait" option preserved closed generic applications for consideration in the next round (i.e., this round).  So, not a ban. But permission with a major caveat -- GNSO policy was needed to make this wrork

But where does that leave us? 

Can we say the Board accepted the GAC advice? The Board did not expressly say so, and the Resolution does not clearly characterize its relationship to the GAC advice. The "Resolved" clause follows the spirit of the GAC advice, recognizing it could not be put in place for that round: the Board "requests 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."  The Board falls short on clarity; it does not require the PDP outcome to include the "public interest goal" criterion. Perhaps the Board didn't want to be seen as dictating a policy outcome to the GNSO. But it's clear what the Board wanted.

The last paragraph of the Rationale supports this, saying that "The adoption of the GAC advice will have a positive impact on the community because it will assist with resolving the GAC advice concerning the New gTLD Program."   If this is meant to say that the Board adopted the GAC advice, it's awfully vague, and of course, the GAC advice can't be adopted in practice without a PDP-created "public interest goals" test and method for applying for and reviewing closed generic applications.

Taking all this into account, it seems apparent that the goal of both the GAC and the Board was to allow closed generics to proceed if, and only if, there was a public interest goal requirement.  And it was the Board's expectation that we would make this happen.

In the end, this tells us what we should have done -- or more optimistically what we could still do.  But it does not tell us what the status quo would be if we failed.  

The GNSO Council is quoted in the Board's Rationale with what could be their version of the status quo: "The GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not.'"  That is certainly the status quo of 2007 and 2012, but it is not the status quo of 2015.

The Board Resolution is not a prohibition, but it is also not a self-evaporating decision (which I once thought it was).  If our general rule is that the status quo is the AGB as implemented and with all Board decisions included, then I think we stick with that rule here.

I think that means that the status quo is this: Closed generic TLDs may be applied for in this round, in the hope that a public interest goals requirement could still be put in place for the round.  If not, those applications can opt to switch to open, withdraw, or wait for the next round.  This could be simplified to say that the status quo is that closed generic TLDs will be allowed with a public interest goals requirement, but that this requirement must be defined in this PDP or a subsequent one.

In that case, we have failed the status quo. Such failure should be rewarded neither with a "ban" or an "open season."  Instead, we have an "incomplete." If you agree, then we must create a policy that allows generic strings serving a public interest goal, with sufficient guidance so that this policy can be implemented with predictability.  I think anything less goes back to the GNSO Council to resolve. We can't make this go away by inaction; it will wander among us as an unfulfilled policy objective, haunting us until we bring it peace.

Greg

On Sun, Jul 12, 2020 at 7:20 PM Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> > wrote:

The bottom line at this point is that the only reason to include anything other than what the Board actually resolved is to add commentary supporting a particular point of view on whether closed generics should be allowed and if so, when. The only thing we can agree upon is that we can't agree. So let the Board speak for itself and people who read the report can interpret it as they will. 

Best Regards,

Marc H.Trachtenberg 

Shareholder

Greenberg Traurig, LLP

77 West Wacker Drive

Chicago, IL 60601

Office (312) 456-1020

Mobile (773) 677-3305

On Jul 12, 2020, at 4:29 PM, Alexander Schubert <alexander at schubert.berlin <mailto:alexander at schubert.berlin> > wrote:

*EXTERNAL TO GT*

Dear Jeff,

Let me start by highlighting your good stewardship in this group. I am amazed how you lead us - and how you orbit around all aspects of this PDP. Very good job.

Regarding the ".disaster" example:

That's the problem with examples; they initially make sense - but when diving into details: they might turn out not so good. In the case of the Red Cross applying for any generic term based new gTLD: just because their work is so extraordinary humanitarian doesn't mean any potential generic gTLD is deemed to be worthy to be taken by them. So when people poked holes in this example then less as to prove no example can be given - but more to prevent having an insufficient example in our WG report.

Thanks,

Alexander 

Sent from my Samsung device

-------- Original message --------
From: Jeff Neuman <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com> > 
Date: 7/12/20 18:36 (GMT+02:00) 
To: George Sadowsky <george.sadowsky at gmail.com <mailto:george.sadowsky at gmail.com> > 
Cc: 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 

Thanks George for keeping the dialogue going and I think this is very helpful.

So, I presented an example before (and in) the initial report that I came up with.  The example was an application for .disaster by the International Red Cross.  The application (made up by me) was to have second level names given to specific disasters to serve as the official Red Cross fund raiser for these events.  Examples include HurricaineMaria.disaster, covid19VA.disaster, covid19UK.disaster, etc.  Users would know that if they went to these sites and donated, that the money would actually be going to the official Red Cross and to official sources.   The goal would be to drastically reduce the amount of fraud to end users from fake fundraising campaigns.

Those that opposed closed generics did not agree that this would be good enough.  They argued that generic words should be open to all “competitors” and why should the Red Cross monopolize a word/string.  They come from the very traditional view that second level domains should be available to all (with restrictions).  It is a view of end users being the registrants of domains as opposed to end users being those that use the Internet in general.   Opponents argued “why couldn’t they just apply for .redcross” or “why cant they just make it open”?  So essentially it became a debate about words and generic ness and who has a right to them as opposed to looking at the application itself to see if it served a public interest goal.  

When it became apparent that even in this humanitarian extreme example that members of the working group were unwilling to consider the application that we decided to end the discussion because it was clear that no example would satisfy the “serving a public interest goal” to members of the group. 

I hope that helps explain a little bit more how we got here and that we have indeed tried to discuss some examples. 

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From: George Sadowsky <george.sadowsky at gmail.com <mailto:george.sadowsky at gmail.com> >
Sent: Sunday, July 12, 2020 9:35:12 AM
To: Jeff Neuman <jeff at jjnsolutions.com <mailto:jeff at jjnsolutions.com> >
Cc: Kleiman Kathy <kathy at kathykleiman.com <mailto:kathy at kathykleiman.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> >
Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text 

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 <mailto: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.”

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