[ALAC] Closed generic statement [Suggested edits]

Fri Mar 1 21:09:59 UTC 2013

On Sat, Mar 2, 2013 at 3:59 AM, Alan Greenberg <alan.greenberg at mcgill.ca>wrote:

> Sala, do I understand correctly that what you were proposing is to take
> the statement as is, but add those two sections?
>
> Alan
>
> Yes, Alan - I was merely suggesting adding the two sections.

>
> At 01/03/2013 07:29 AM, Salanieta T. Tamanikaiwaimaro wrote:
>
>> 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<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<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<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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>> display/atlarge/At-Large+**Advisory+Committee+(ALAC)<https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALAC)>
>>
>
>

-- 
Salanieta Tamanikaiwaimaro aka Sala
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