[At-Large] gTLD Review Group decisions regarding the comments by IT for Change, India

[parminder]

Dear All,

I am not sure whether a gTLD review group does exist at present, and 
proposes to do something, or not. And if indeed it does propose to 
continue, what kinds of things it might look into. Probably Avri can 
further  clarify on this point. Although she did clarify a few days 
back, there are new arguments on the list against continued examination 
of this issue. Such a clarification will be useful for those who propose 
to keep pursing the subject of 'private gTLDs' as something very 
detrimental to public interest.

I hear voices here claiming that the time for fighting for  this cause 
is over now. Some of those who say so otherwise seem  to have sympathy 
for the proposition that 'private gTLDs' will be detrimental to public 
interest. There appears to be an overly greater desire to safeguard a 
process (ICANN ?) than address the substantive issue on its merits, 
especially when, in my view, the implications of the issue at stake are 
huge. In private conversations I find people, even among those centrally 
connected to ICANN, having varying degree of reservations about 'private 
gTLDs'. As I read postings on this list I see a similar sentiment. 
Outside the ICANN circles of course I find almost universal dismay that 
such a thing can be done. I wonder, then, what kind of governance 
process can still be going ahead with possibly allowing 'private gTLDs' 
and how so many of the civil society participants in ICANN processes 
prefer to stand on ceremony rather than agree to have a thorough debate 
on and (re)consideration of the issue. I appeal to the ALAC community to 
look into this issue in the right earnest; failing which, it is my 
humble opinion, they would be dis-serving their appointed role.

I also read that there has been a long process over many years to 
finalise the new gTLD policy, and everything was looked into with great 
care and decided by consensus. That is a bit surprising to me, as I did 
indicate in the newspaper article I wrote on this issue. So, did ALAC 
largely agree with a policy of allowing 'private gTLDs'? What kind of 
questions were raised by civil society members, what arguments were 
made, and what responses were received that made the proposal 
acceptable? ALAC must answer these questions, specifically those who 
were closely associated with the process. Also because these questions 
will be asked, and asked rather keenly, as people outside ICANN circles 
realise what has happened.

The above is my general statement on the subject. Notwithstanding, I 
also have a practical way forward to suggest for the gTLD review group, 
which as Avri says, mostly is to deal with 'roll-out issues'.

I must admit here that I haven't gone through the applicant guidelines 
and other concerned documents in detail. Those who know more about these 
documents may please help me, but my understanding is that the default 
policy is to have open registrant model, whereby all registrants have to 
be serviced by any gTLD owning registry on a non-discriminatory basis. 
Although my understanding can be wrong, and please do correct me if it 
is, I think 'private gTLDs'  are to be allowed only under an exception  
to the general rule clause.

    "....such exemption may be granted by ICANN in ICANN's reasonable
    discretion, if Registry Operator demonstrates to ICANN's reasonable
    satisfaction that (i) all domain name registrations in the TLD are
    registered to, and maintained by, Registry Operator for its own
    exclusive use, (ii) Registry Operator does not sell, distribute or
    transfer control or use of any registrations in the TLD to any third
    party that is not an Affiliate of Registry Operator, and (iii)
    application of this Code of Conduct to the TLD is not necessary to
    protect the public interest."


An exception to a rule is something about which the complete burden of 
proof lies on whoever is seeking the exception. While requirements (i) 
and (ii) above are technical and can be met by applicants for private 
gTLDs, requirement (iii) in my view is rather stringent, and we should 
focus on it. BTW, using this route of opposing private gTLDs, of showing 
how this stringent requirement of the exception clause is not met by any 
applicant of private gTLDs, who seek to use generic names, to which they 
have no IPRs whatsoever, does make it a 'roll out' issue, placing it 
within the remit of the gTLD review group.

I am completely unable to see how applicants for private gTLDs employing 
generic names will be able to demonstrate to ICANN's 'reasonable 
satisfaction' that disallowing such generic names as private gTLDs 'is 
not necessary to protect the public interest'.

It is very important to note that, since an exception to a laid out rule 
is being sought, the entire burden of proof is on the applicant to 
actually demonstrate how public interest may not be adversely affected, 
rather than on ICANN to show how it may be. In default, if no 
determination can be made either way, of the relationship that granting 
of such generic name private gTLDs may have with public interest, 
private gTLDs will/ should obviously be disallowed. This flows from a 
simple reasoning that since the rule, which would obviously have been 
made to promote public interest, is that single registry or private 
gTLDs will not be allowed, that public interest presumption stands 
unless compelling evidence to the contrary is provided. In  this regard, 
the following two facts/ issues are relevant;

1) Again I haven't read most generic name private gTLD applications but 
from what I have read I do not see even any kind of serious attempt 
being made to 'demonstrate' that granting such gTLDs does not have an 
adverse impact on public interest (the presumption, from the formulation 
of the rule, being that it does have an adverse impact). In this regard, 
it is for the applicant to capture the scenarios or potential criticisms 
of adverse impact and show that they do not hold. Any application that 
does not devote considerable space to specifically and sufficiently 
arguing how public interest is not impacted adversely (especially 
pertaining to pubic interest issues that underly the rule for 
open/multiple registrars, and those regarding taking up exclusive use of 
words to which they have no IPR claims and thus unfairly exclude other 
who may also want to use the particular gTLD) , should simply be 
rejected out of hand as not having met the requirement (iii) of the 
exception clause. My impression is that most generic name private gTLDs 
can simply be rejected on this ground.

2) I understand that, wherever and to the extent possible, ICANN tries 
to rescue itself from making decisions around specific public interest 
related issues, a constraint that it feel in being primarily a technical 
coordination body. Under the circumstances, ICANN should desist from 
entering into specific decision making with regard to specific 
circumstances of specific generic word gTLD applications, about 
certifying that as per 'its reasonable satisfaction' the default open or 
public gTLD rule is not necessary to apply in order 'to protect the 
public interest'. Trying to do so will mire ICANN into taking specific 
stances on issues of deep and variegated public policy implications for 
which ICANN is neither suited nor, normally, very inclined towards 
addressing.

The public interest issue to determine here is rather simple. ICANN did 
the current new gTLDs program presumably because it thought that there 
was public demand for domain names under different gTLD suffixes. This 
is the reason that it would now allow a number of new open gTLDs 
employing so many different names/ words. I wonder what kind of argument 
can 'reasonably satisfy' ICANN that, while there is expected to be 
public demand for these open gTLD name domains, there isnt public demand 
for .book. .beauty and all other names for which private gTLD 
applications are being made. In allowing such generic name private 
gTLDs, ICANN of course will be preventing most people from freely 
obtaining domain names under these gTLD suffixes. This simple 
straightforward fact does constitute harm to public interest (unless it 
can be counteracted by claim of a greater harm). I will very much like 
to hear arguments of applicants for private gTLDs, or anyone else here, 
how this is not a harm to public interest, when new gTLDs being made 
available openly generally is considered to be in public interest.

A trademark authority may give a ruling allowing some kinds of 
privileged/ exclusive uses of a word if an overriding public interest, 
pertaining say to improved consumer recognition of the source of a 
product or service, can be made out w/ith regard to specific 
circumstances/, the requirements of such proof being rather stringent. 
Is ICANN going to get into such specific considerations of who is going 
to use what words as private gTLD, with what justification and what 
effect? It will have to, since the exception clause, which alone can 
enable a private gTLDs, specifically requires the reaching of 
'reasonable satisfaction' of ICANN in this regard. Apart from the fact 
that I can't see any applicants for generic word private gTLDs being 
able to make a good enough or even a plausible case, I am also not sure 
if ICANN is willing, or has the mandate, to go into such deep 
case-to-case public policy considerations, which concern larger 
economic, social and cultural implications.

I put the above points for consideration of the gTLD review group, that 
is if it does intend to continue looking into new gTLDs related issues. 
I would also like to know what kind of process does such a group follow, 
and whether there is certain topicality/ urgency to the issue vis a vis 
the Toronto meeting. Is this issue likely to come up at the meeting, and 
if so in what form.

Thanks, and apologies for a long submission.

parminder



On Friday 28 September 2012 12:29 AM, Carlton Samuels wrote:
> Most would know that I have already declared on these lists an abiding
> interest in maintaining a strict observation of the Review Group's remit.
>   Consequently, I am on record as rejecting - and urging the Review Group's
> rejection -  oversight of this issue.
>
> I am also on record for recommending a punt to the relevant At-Large WG.
> This happens to be the gTLD WG, largely determined from its charter.  To
> the extent that the Chair accepts the materiality of the issue, I am
> prepared to vigourously debate the matter, if only for the intellectual
> jousting.
>
> All this aside and knowing where we are today, I am also on record for
> describing the central idea at issue - ably outlined by Evan - and its
> likely resolution as 'attempting to shut the gate when the horse has
> already bolted'.
>
> Kind regards,
> - Carlton
>
> ==============================
> Carlton A Samuels
> Mobile: 876-818-1799
> *Strategy, Planning, Governance, Assessment & Turnaround*
> =============================
>
>
> On Thu, Sep 27, 2012 at 12:52 PM, Avri Doria<avri at acm.org>  wrote:
>
>> hi,
>>
>> the token holder was used to designate the person who thought the issue
>> was important enough to be brought up and included on the list.
>>
>> the expectation, stated repeatedly in the group, was that others
>> interested in this topic would aggregate around this person and actually
>> get a recommendation drafted for the group to consider and work on.
>>
>> there was also component it that while I would track the work and build
>> tables that referenced it, I was not going to be the one as chair of the
>> group to actually work each of these issues.  I would put them on every
>> meeting's agenda and see if anything had been done.  and if after a long
>> time nothing had been done, i would ask the group whether they thought the
>> topic should be dropped from the list of issues worth considering and
>> working on.
>>
>> if the term is so odious or confusing please suggest another.
>>
>> on the other hand, you could just accept the term and either do something
>> or say you don't want to hold the token.
>>
>> cheers
>>
>> Evan Leibovitch<evan at telly.org>  wrote:
>>
>>> On 27 September 2012 11:57, parminder<parminder at itforchange.net>
>>> wrote:
>>>
>>>
>>>> You say that it is within the scope of the WG to give advice on the
>>>> private gTLD issue. You have pointed to me to the page where the
>>> listed
>>>> issues for the WG can be seen. Here I see that on the issue of
>>> private
>>>> gTLDs the token holder (not exactly sure what it means though) is
>>> Evan
>>>> Leibovitch.
>>>>
>>> Actually, I'm not sure what the term "token holder" means either. I
>>> know I
>>> have had an interest in the issue, done significant research, and
>>> participated in many relevant ICANN working groups to date. But, then,
>>> so
>>> have many others here.
>>>
>>>
>>>> However, in an email on 25th Sept, on the newspaper article that I
>>> did
>>>> on private gtlds, Evan had the following to say....
>>>>
>>>>      " This would have been an extremely useful intervention ... three
>>>> years ago.   In its current form it's merely an act of hindsight, and
>>> as
>>>> such its value is severely diminished."
>>>>
>>>> In response to my input to the Dev's WG, which he was kind enough to
>>> post
>>>> on the ICANN website, Evan posted a response which claims that
>>>>
>>>>      "While I share the concerns and have expressed many myself, the
>>>> ability to affect gTLD expansion policy in this direction is also
>>> long
>>>> passed."
>>>>
>>> Indeed, and I stand by that.
>>>
>>>
>>>> If the token holder of the issue of private tlds so firmly believes
>>> that
>>>> this issue is not something that anything can be done about at
>>> present, I
>>>> wonder what is the discussion about.
>>> The ALAC has the bylaw-mandated remit to advise ICANN on any component
>>> of
>>> its operation, at any time. And its gTLD working group has the ability
>>> to
>>> advance any issue to the wider ALAC for consideration as formal Advice
>>> to
>>> the ICANN Board.
>>>
>>> In the current application process the ALAC has been given a further
>>> capabilty to launch specific objections against specific applications
>>> for
>>> one of two very specific reasons:
>>>
>>>    1. The string being applied for is overly offensive of obscene
>>>    2. An applicant for a community TLD is not properly representing the
>>>    claimed community
>>>
>>> Your objections do not fall under one of the above categories, so they
>>> are
>>> beyond ALAC's capacity to object using its explicitly granted authority
>>> in
>>> this regard. As such, it becomes just another general policy issue, and
>>> I
>>> am suggesting that this particular issue is long past its due date.
>>>
>>> Your core issue -- the private ownership of public words -- was long
>>> ago
>>> settled by consensus, a consensus in which At-Large participated (and
>>> with
>>> which some of us -- myself included -- had severe reservations). The
>>> embodiment of that consensus is the gTLD Applicant Guidebook, the
>>> subject
>>> of years of debate and side-debates that is now used as a contractual
>>> document. ALAC has the formal freedom to demand the issue be re-opened
>>> --
>>> against the desires of every other stakeholder and our own
>>> participation in
>>> the consensus -- but I believe that to so do would be utterly pointless
>>> and
>>> ill-advised.
>>>
>>> So let's be clear. There was no ALAC "discussion" on the issue before
>>> your
>>> (and some domain-industry) comments were brought to our attention. The
>>> core
>>> issue you advanced -- whether or not it had merit -- is now moot.
>>> Companies
>>> have filed legitimate good-faith applications, and given ICANN monetary
>>> deposits, under published guidelines that allow private ownership of
>>> TLD
>>> strings. So even should I agree with you on your core issue, advancing
>>> it
>>> at this time (which we are *technically* entitled to do) would either
>>> get
>>> us ignored or get ICANN sued.
>>>
>>> Had you raised them when the applicant guidebook was under intense
>>> debate,
>>> you may have indeed sparked very useful debate, and perhaps affected
>>> opinions and the ALAC's attitudes at a time when we could have had
>>> influence on the final expansion policy. But your voice and this PoV
>>> was
>>> non-existent then. In fact, the real time to make such a case was even
>>> longer ago, when precedents were set by the private allocation of TLDs
>>> for
>>> common words such as .name and .museum.
>>>
>>> Lest there be any doubt, I have long held the position -- that most in
>>> At-Large can verify -- that the gTLD expansion process as a whole is
>>> (with
>>> a very few exceptions) an utter waste of resources and, on the balance,
>>> harmful to the public interest. As such I have great understanding and
>>> and
>>> empathy for your position. But I (and other expansion cynics) could
>>> have
>>> used your support long ago, when the debate might have produced actual
>>> policy results.
>>>
>>> Right now, though, aggressively stating this case simply comes across
>>> as
>>> bitter hindsight. And even that hindsight may be misplaced, IMO  -- but
>>> that's a different topic for, perhaps, a different discussion. Suffice
>>> to
>>> say for now that it's interesting that the only comments I have seen
>>> opposing private ownership of public strings -- besides yours -- come
>>> from
>>> the domain speculation industry.
>>>
>>> Just my opinions.
>>>
>>> - Evan
>> Avri Doria
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