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

[Greg Shatan]

I won't reiterate what I just posted 12 hours ago on the current "state of
play" regarding closed generics.  I tied to approach the GAC advice and the
Board Resolution with an open mind.  My conclusion is that the Board
effectively adopted the GAC Advice that allowed closed generics if the TLD
met a public interest standard. Responding to Marc, I'm not relying on the
GAC advice in coming to this conclusion. Rather, I'm relying on the Board
Resolution and Rationale dealing with that GAC advice, and which must be
read in conjunction with the GAC advice.  The Board resolution should have
"connected the dots" better, but I believe the outcome is clear --
particularly when you recognize that the language of Resolutions can be a
bit stuffy.

So, what happened to this plan for Public Interest Goal Exclusive Registry
Access (PIG ERA)?  Well, by 2015, there was no way to make a "PIG ERA
program" a reality in the prior round, so the Board put the wheels in
motion to make it part of the next round (the upcoming round).  The GAC and
Board were aligned conceptually on this outcome, but only the GNSO could
make it a reality, by creating the policy recommendations necessary to put
in place a PIG ERA program.  And so the Board asked the GNSO to put the
necessary policy recommendations before the Board to allow implementation
of such a program for this round.  So far, we have not.  The question
becomes whether we can cast aside that resolution and/or whether it's good
enough to say we tried.

I don't think it's good enough to say we tried, because we got tangled up
in the starting gate before we could even start to try.  We got tangled up
by spending so much of our time debating whether the status quo was a "ban"
or an "open season" (it's neither), and little time on recognizing that we
had one job on closed generics and we had to try to do it.

We should spend no further time talking of bans or an unfettered closed
generics marketplace.  That is not where we were left, and that's not where
we're going.

Some of us have tried to cut through the mess and get to that "one job":
policy for the PIG ERA. George Sadowsky is the latest entrant in the PIG
ERA contest.  I suggest we build on George's efforts and try to do this job.

The consequence of failure is likely to be greater delays in getting to the
next round.  We still have a chance to avoid that, but the window is
closing fast.

Best regards,

Greg




On Mon, Jul 13, 2020 at 1:12 PM Marc Trachtenberg via Gnso-newgtld-wg <
gnso-newgtld-wg at icann.org> wrote:

> Anne,
>
>
>
> For clarity, I do not believe that the Board ignored or rejected the GAC
> advice re closed generics.  Rather I think the Board simply kicked the can
> down the line so they didn’t have to deal with this issue at the time. My
> comment was more general in nature that the Board has ignored or rejected
> GAD Advice before and that the GNSO and this group are not required to
> follow GAC advice.  Just because the GAC issues advice it does not mean
> that such advice is right and/or what is best for the community.  Otherwise
> it would not be “advice” – it would be GAC “instruction” or “order” and
> this would not be a bottom up consensus policy development process.  I
> think it is interesting how some insist that we must follow the GAC advice
> when it suits their purpose.
>
>
>
> *Marc H. Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL
> 60601
> Tel 312.456.1020
>
> Mobile 773.677.3305
>
> trac at gtlaw.com | www.gtlaw.com
>
>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Aikman-Scalese, Anne [mailto:AAikman at lrrc.com]
> *Sent:* Monday, July 13, 2020 11:33 AM
> *To:* Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm at gtlaw.com>;
> alexander at schubert.berlin
> *Subject:* RE: [Gnso-newgtld-wg] Latest Version of Compromise Closed
> Generic Text
>
>
>
> Marc,
>
> Surely you cannot believe that the Board “ignored or rejected GAC Advice”
> on Closed Generics.  It was the reason the Board passed a resolution giving
> applicants for Closed Generics the alternatives it gave them.
>
>
>
> I am pretty sure that if you check the background on the Resolution, you
> will find reference to that GAC Advice, which, as I understand from GAC
> members, stands under the ByLaws even going into the next round unless
> modified by formal GAC Consensus Advice to the contrary.  This is unless
> and until the Board overturns that advice by a 60% majority pursuant to the
> ByLaws.
>
>
>
> This is why I tried to introduce into our draft Sub Pro document some
> questions the Board could ask to evaluate a Closed Generic string from the
> standpoint of serving the public interest.  As you know, no new policy was
> agreed and there was no agreement in the WG on the fallback status quo.
>
>
>
> To say the Board ignored or rejected GAC Advice is simply inaccurate.
>
> Anne
>
>
>
>
>
>
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *Marc Trachtenberg via Gnso-newgtld-wg
> *Sent:* Monday, July 13, 2020 6:45 AM
> *To:* alexander at schubert.berlin
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed
> Generic Text
>
>
>
> *[EXTERNAL]*
> ------------------------------
>
> I deny that. The requirement for generic strings to serve the public
> interest was merely GAC advice, which neither the GNSO or this group is
> bound by, and the Board has ignored or rejected before.
>
>
>
> 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 13, 2020, at 8:26 AM, Alexander Schubert <alexander at schubert.berlin>
> wrote:
>
> 
>
> 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
> <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> 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>
> 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>
> Date: 7/12/20 18:36 (GMT+02:00)
> To: George Sadowsky <george.sadowsky at gmail.com>
> Cc: 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.
>
>
>
> Get Outlook for iOS
> <https://urldefense.com/v3/__https:/aka.ms/o0ukef__;!!DUT_TFPxUQ!VFYmMUj6rLqzvQYxqjU02Kinys6WMsx-qvncEa1LBXK4V3G66AraAqvp5U1t0bOOWF0$>
> ------------------------------
>
> *From:* George Sadowsky <george.sadowsky at gmail.com>
> *Sent:* Sunday, July 12, 2020 9:35:12 AM
> *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
>
>
>
> 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.”
>
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