[ALAC] Closed generic statement [Suggested edits]

Fri Mar 1 21:50:41 UTC 2013

As Olivier has pointed out, it is really too late 
to do anything about it now. I am pleased that 
the intent of the statement matches yours, so 
voting on it will not be problematic.

I will note, however, that even if there had been 
time, I am not at all sure an ALAC statement 
should be quoting legal citations. There would be 
no credibility for the ALAC, largely composed on 
non-laywers, to be the authority on this, nor is 
it necessarily supportive of our user-centric mandate.

If you feel that your additions, or perhaps your 
other wiki post will really help inform the 
Board, then by all means post it to the public comment as a personal comment.

Alan

At 01/03/2013 04:09 PM, Salanieta T. Tamanikaiwaimaro wrote:

>On Sat, Mar 2, 2013 at 3:59 AM, Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>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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>
>
>
>--
>Salanieta Tamanikaiwaimaro aka Sala
>P.O. Box 17862
>Suva
>Fiji
>
>Twitter: @SalanietaT
>Skype:Salanieta.Tamanikaiwaimaro
>Tel: +679 3544828
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>
>