[Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics"

Fri Sep 18 14:16:08 UTC 2020

Hi Marc,

Well: I think it does apply to all new gTLDs. 

One couldn’t go in and tell ICANN:

“Look ICANN, we here at GOOGLE have a great deal: We will give you 100 Million USD – and you give us the right to all 3 and 4 letter new gTLDs”. Just as an example.

Thanks,

Alexander

From: trachtenbergm at gtlaw.com [mailto:trachtenbergm at gtlaw.com] 
Sent: Donnerstag, 17. September 2020 18:53
To: alexander at schubert.berlin; gnso-newgtld-wg at icann.org
Subject: RE: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics"

Alex,

First, I don’t agree with your interpretation of the language and what “issue” refers to and whether or not closed generics were singled out. 

Second, I don’t think you answered my question:  If the public interest requirement is so important and everything that ICANN does must be in the public interest then why shouldn’t this requirement and test apply to  ALL new gTLDs? 

Marc H. Trachtenberg
Shareholder 
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel 312.456.1020 

Mobile 773.677.3305

 <mailto:trac at gtlaw.com> trac at gtlaw.com |  <http://www.gtlaw.com/> www.gtlaw.com    

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Alexander Schubert
Sent: Thursday, September 17, 2020 5:21 AM
To: gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: Re: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics"

Hi Mark,

I understand what you say; and it's interesting.

Let me start with the notion why exclusive use registries have (per your assertion) seemingly been singled out:

I don't think they were singled out at all. GAC should be lauded for having taken upon themselves the Hercules task of sifting through all applications - and they flagged quite a few. Among those flagged was only one group that stood out as conglomerate of applications with similar specs: closed generics. They are all closed; a great common identifier. In order to avoid havoc in the next new gTLD rounds the board relayed to the GNSO that policy advice is missing. The message is essentially:

"If you force us we will flag all those again in the next round; then we decide the fate of these strings: better if the community would agree on policy advice; so please do your job this time". Which we still haven't.

So no singling out of closed generics by GAC or Board. In my mind.

In regards to the semantics of the board resolution ("issue"):

"..... 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."

First I recognize that I am not a native (American) English speaker. 

"The issue" could be tied to "exclusive registry access" - with "generic strings serving a public interest goal" specifying the object such access is sought for. If the "public interest goal" was a given; then they could have left the "serving a public interest goal" portion away one might note. But the board was likely aware that not everybody knew about the public interest goal; so presumably they wanted to slip that in for reference.

You however seem to suggest that "the issue" was tied to "serving a public interest goal". That would reduce their concerns to the simple question: does the registry have to operate a string in a way that serves the public interest in some way form or shape?

But clearly that wouldn't cover all concerns they had. Imagine a product/service related string; e.g. .scooter. Even if the GNSO would declare that the operation of .scooter doesn't have to serve a public interest goal; there would be still other concerns. E.g. BIRD (a leading U.S. scooter share app) operating .scooter solely for their products: that might create issues beyond "public interest". E.g. competition issues.

So I don't think the semantic interpretation that the board tied "the issue" to "serving a public interest goal" holds water. In my mind they demanded to create policy how the exclusive registry access for closed generics will be governed. That any such policy has to follow the new gTLD program goals (among which is "public interest) is a given in my mind. That to decide would be beyond our scope: it was decided a long time ago.

Comments from others?

Thanks,

Alexander

Sent from my Samsung device

-------- Original message --------
From: trachtenbergm at gtlaw.com <mailto:trachtenbergm at gtlaw.com>  
Date: 9/16/20 23:37 (GMT+02:00) 
To: alexander at schubert.berlin, gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>  
Subject: RE: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics" 

Alex,

The Board is saying the specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work – so to consider and address this issue. If the Board had decided that exclusive registry access for generic strings MUST serve a public interest goal then they would have just said so and there would be no issue and nothing for the GNSO to address. The fact that the Board says “issue” makes clear that the matter is not decided.  Merriam-Website defines “issue” as “a vital or unsettled matter” and “a matter that is in dispute between two or more parties” (https://www.merriam-webster.com/dictionary/issue <https://urldefense.com/v3/__https:/www.merriam-webster.com/dictionary/issue__;!!DUT_TFPxUQ!W0WnhNJBlvS8XbMx-VKH9kiNTv7_ESdL0a-TNM_LJvavoi8iI3ep8E0m02EmXsA9-xFl-g$> ).

I would also add that Kurt, Mike and I feel like maybe our proposal is misunderstood.  We are not arguing that closed generics do not necessarily need to be in the public interest.  Indeed we think it is quite clear that everything that ICANN does must be in the public interest, per various specific provisions in the Articles and Bylaws saying just that.  What we are saying is that closed generics should not be subject to a different public interest test than other new gTLDs.  Rather, they ought be presumed or assumed to be in the public interest just as any other new gTLD is, and that any test to analyze whether they are/are not is fraught with subjective difficulties and so any decision would be challenged.  Indeed, this is why they were allowed in the last round, ... until they suddenly weren't.

To put it more simply, I will re-ask the question that I asked during the last numerous times verbally and in the chat and that no one answered:  If the public interest requirement is so important and everything that ICANN does must be in the public interest then why are we singling out closed generics to have to meet a special test and be operated by not for profits?  Assuming we need a special test/standards (which we don’t believe are practical for the reasons previously stated) shouldn’t this requirement and test apply to  ALL new gTLDs?  

Best regards,

Marc H. Trachtenberg
Shareholder 
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel 312.456.1020 

Mobile 773.677.3305

 <mailto:trac at gtlaw.com> trac at gtlaw.com |  <http://www.gtlaw.com/> www.gtlaw.com    

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Alexander Schubert
Sent: Wednesday, September 16, 2020 3:20 PM
To: gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: Re: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics"

Hi Mark,

The original text from the board resolution seems to be:

"..... the NGPC 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, and inform the Board on a regular basis with regards to the progress on the issue."

It's not a request for consideration. 

The portion "for generic strings serving a public interest goal" has not sprung from the fantasy of the board; it's enshrined in the new gTLD program goals.

So how does the terminology "consider" fit in here? It's a clear request by that board. At least that is how I read it.

Thanks,

Alexander

Sent from my Samsung device

-------- Original message --------
From: Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> > 
Date: 9/16/20 21:35 (GMT+02:00) 
To: alan.greenberg at mcgill.ca <mailto:alan.greenberg at mcgill.ca> , gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>  
Subject: Re: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics" 

Alan,

In the section you cited below, the Board directed the GNSO to specifically consider the issue exclusive registry access for generic strings serving a public interest goal.  Which is exactly what we have been doing in the many discussion on the topic of closed generics.  The Board did not direct the GNSO to come to the conclusion that exclusive registry access for generic strings can only exist if it serves a public interest goal.  Rather, the Board directed the GNSO to specifically consider this issue because the GAC advised that generic strings can only exist if they serve a public interest goal.  This is because the Board must consider GAC advice, but not necessarily follow it.  Accordingly, if the WG made a recommendation that closed generics should be allowed without a public interest requirement this would be aligned with the Board’s instructions to the GNSO, so long as the issue of whether or not the public interest goal should be required was discussed – which it clearly was (and is).  

Best regards,

Marc H. Trachtenberg
Shareholder 
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel 312.456.1020 

Mobile 773.677.3305

 <mailto:trac at gtlaw.com> trac at gtlaw.com |  <http://www.gtlaw.com/> www.gtlaw.com    

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Alan Greenberg
Sent: Wednesday, September 16, 2020 1:20 PM
To: New gTLD SubPro <gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> >
Subject: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics"

*EXTERNAL TO GT*

While preparing a presentation for At-Large on Closed Generics, I noted something that I think needs to be considered going forward.

In the Pritz, Trachtenberg and Rodenbaugh proposal "The Case for Delegating Closed Generics" advocating the unrestricted delegation of closed generics, the following statement is made in relation to the Board action in response to GAC Advice:

The Board consequently decided to halt the processing of applications for ?closed generics? for the current round, and sought additional policy recommendations from the GNSO on how closed generics should be treated in subsequent rounds. 

That is not accurate as a critical part of the Board resolution is omitted. The exact wording was:

NGPC 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, and inform the Board on a regular basis with regards to the progress on the issue. 

The key missing phrase is that the GNSO Council was instructed to initiate policy work for exclusive registry access for generic strings SERVING A PUBLIC INTEREST.

I understand the authors' belief that a test for the public interest is not possible or practical, but that does not remove the clear requirement in the charge the Board gave to the GNSO Council. 

Regardless of my personal views on the issue of closed generics, I do not believe that the PDP can or should make a recommendation that is not aligned with the Board's instructions to the GNSO. 

Alan

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