[ALAC] Closed generic statement [Suggested edits]

Fri Mar 1 13:41:37 UTC 2013

Hi Sala,

The hard deadline is next week, and we need the time to hold a vote and
prepare the submission.

http://www.icann.org/en/news/public-comment/closed-generic-05feb13-en.htm

- Evan (via mobile)
On 2013-03-01 8:29 AM, "Salanieta T. Tamanikaiwaimaro" <
salanieta.tamanikaiwaimaro at gmail.com> wrote:

> Hi Evan,
>
> Just out of curiosity, when was the deadline for submitting comments for
> ALAC members or members of At Large on this particular matter?
>
> Kind Regards,
> Sala
>
> On Sat, Mar 2, 2013 at 12:56 AM, Evan Leibovitch <evan at telly.org> wrote:
>
>> Hi Sala,
>>
>> This statement has been in the works for many months, one that seeks
>> clarity and of which every word has been scrutinised. Not many hours ago
>> Alan sent a version of statement marked "FINAL", having integrated numerous
>> comments from at-large members.
>>
>> Sometime after that final version was posted, and having not participated
>> in any previous development, you sent a submission that doubles the size of
>> the statement. It restates issues of which the Board is painfully aware
>> without changing the specific position of ALAC indicated in the original.
>>
>> While your effort is much appreciated, we are already many days behind
>> our deadlines of having this ready for a vote. We don't have the luxury of
>> time to integrate these elaborate comments at such a late date. As your
>> comments don't propose modification or deletion of a single word of the
>> existing analysis and conclusions, I hope you'll accept the final statement
>> as-is, as staff prepares it for ratification.
>>
>> - Evan (via mobile)
>> Dear ALAC,
>>
>> *The suggested changes is in BLUE.** *
>>
>> *Suggested Changes to the Draft Statement*
>>
>>
>> In considering the matter of closed generic Top Level Domains (gTLDs),
>> ICANN is guided by The Affirmation of Commitments (AoC) between the United
>> States Department of Commerce (DOC) and ICANN clearly specify the
>> promotion
>> of competition, consumer trust and consumer
>> choice.[1]<
>> https://community.icann.org/pages/viewpage.action?pageId=40927847&focusedCommentId=40931544&#_ftn1
>> >It
>>
>> is also worth noting that there are several issues that surface with
>> closed gTLDs and these include but are not limited to the following:
>>
>>    1. Would the endorsement of “Closed Generic” Applications create a
>>
>>    situation or a series of situations whether now or in the future that
>> will
>>    restrict competition?
>>    2.  Would the endorsement of “Closed Generic” Applications create a
>>
>>    situation where there is a dominant position within the market?
>>    3. Would the endorsement of the “Closed Generic” Applications create a
>>
>>    restraint in trade of a particular market?
>>    4. Would ICANN be immune from anti-trust liability?
>>
>> On 4th August 2012, a precedent was established in the *Manwin Licensing
>> International S.A.R.L., et al. v. ICM Registry, LLC, et al  *where
>> the* *Honorable
>>
>> Philip S. Gutierrez, United States District Judge ruled that antitrust
>> claims could be filed over .xxx.  Under the *Sherman Act § 2, 15 U.S.C. §
>> 2*
>> *[2]*<
>> https://community.icann.org/pages/viewpage.action?pageId=40927847&focusedCommentId=40931544&#_ftn2
>> >monopolizing
>>
>> trade is a felony. Under the circumstances where this trade
>> involves foreign nations such as generic TLD applications that have been
>> made by countries outside the US, then *Sherman Act § 7 (Foreign Trade
>> Antitrust Improvements Act of 1982), 15 U.S.C. § 6a* will apply in
>> relation
>>
>> to conduct involving trade or commerce with foreign nations.
>>
>> On the whole, the ALAC does not believe that unrestricted closed generics
>> provide public benefit and would prefer that TLDs -- especially for
>> strings
>> representing categories -- were not allocated in a way that would lock out
>> broad access to sub-domains. Some members of At-Large believe, on
>> principle, that all closed generics are harmful to the public good. Others
>> believe that, while not necessarily being beneficial to end users, closed
>> gTLDs should be allowed as simply being consistent with existing practise
>> for lower-level domains.
>>
>> Traditionally, the prohibition and control provisions laid out in
>> competition rules basically aims to prevent cartelization and
>> monopolization in markets for goods and services. Such developments in
>> markets inevitably harm consumer welfare which competition rules aim to
>> protect. On the same token, there are instances where some agreement may
>> limit competition to allow for social and economic benefits to pass to the
>> other. In order to ensure that such agreements with a net effect of
>> increasing competition can be made, an exemption regime is regulated in
>> competition law and agreements between undertakings in the same level
>> (horizontal) and different levels (vertical) of the market may be left
>> exempt from the prohibition of the competition rules under an exemption
>> system, provided they are not cartel agreements which are, by nature, out
>> of the scope of exemption.
>>
>> However, in developing this response to the Board's request, the ALAC
>> found
>> the issue to be far more nuanced than the above hard positions would
>> suggest. There may be innovative business models that might allow a closed
>> TLD to be in the public interest. An example might be a registry that
>> makes
>> 2nd level names available at no cost to anyone, but retains legal control
>> over them. This is similar to the model used by Facebook and many blog
>> hosting sites. Allowance should be made for applicants interested in
>> widespread sub-domain distribution that do not require domain-name sales
>> as
>> a source of revenue, or for other forms of sub-domain allocation.
>>
>> Whether a generic-word string is used with its generic meaning or in some
>> other context may also be relevant. The fictitious but famous computer
>> manufacturer, Orange Computers Inc. using the TLD ".orange" might be
>> acceptable, while the same string used as a closed TLD by a California
>> Orange Growers Cooperative (and not allowing access to orange producers
>> from Florida or Mediterranean and South American countries) might well be
>> considered unacceptable.
>>
>> Allowing this nuanced approach would likely involve a case by case review
>> of how a TLD will be used and how its sub-domains will be allocated.
>> Moreover, it would require a contractual commitment to not change that
>> model once the TLD is delegated.
>>
>> In summary, the ALAC believes that completely uncontrolled use of generic
>> words as TLDs is not something that ICANN should be supporting. However,
>> some instances of generic word TLDs could be both reasonable and have very
>> strong benefits of just the sort that ICANN was seeking when the TLD space
>> was opened. Such uses should not be excluded *a*s long as it can be
>>
>> established that they serve the public interest.
>>
>> ------------------------------
>>
>> [1]<
>> https://community.icann.org/pages/viewpage.action?pageId=40927847&focusedCommentId=40931544&#_ftnref1
>> >Clauses
>>
>> 3 and 9.3 of the Affirmation of Commitment between the United
>> States Department of Commerce and the Internet Corporation for Assigned
>> Names and Numbers
>>
>>
>>
>>
>>
>> Kind Regards,
>> Sala
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>>
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>>
>
>
>
> --
> Salanieta Tamanikaiwaimaro aka Sala
> P.O. Box 17862
> Suva
> Fiji
>
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