[NA-Discuss] Fwd: Edits and comments to NARALO/ALAC position statement on GAC scorecard

[Eric Brunner-Williams]

On 3/31/11 4:07 PM, Richard Tindal wrote:
> First a clarification -- I dont think its fair to say that Applicant Guidebook policy development work for the last couple of years is unrelated to .PARIS, .NYC  or other geo TLDs.   More than 50% of policy work has concerned trademarks,  and there will be at least as many trademark issues in large city TLDs as there will be in other TLDs

Neither New York City nor Paris relies upon a marks theory as a basis 
for their allocation claims, and the GAC Model does not propose to 
rely upon a marks theory as a basis for allocating names associated 
with territorial jurisdictions to territorial jurisdictions as applicants.

If both cities banned both affirmative and defensive registrations of 
trademarks, resulting in no trademarks, and therefore, no trademarks 
policy dependency at all, ICANN would still decline to accept either 
or both of their applications until some policy development, unrelated 
to either application, was resolved. ICANN's refusal to accept any 
applications until some point of time in the future is absolute and 
without exception.

> To your question -- If .NYC is delayed until 2013 due to the 'limitation' method I think domain registrants in New York City will be denied more choice and better prices for an additional 2 years

This simply restates the given delay, but does not make a specific 
claim to harm beyond a 24 month delay to end users, registrants, 
registrars, the registry operator, and the municipal government, in 
their use of a name space.

I am unable to find a estimate from the DOITT for losses to one, some 
or all of these beneficiaries, for the last 15 months of delay, and so 
an estimate of what the 24 months of delay is worth, when quantified, 
must for the present be mere guesswork.

Is it something you can attempt to quantify?

A possible guide is the uptake of .cat. For the first years of .cat's 
existence, most domains pre-existed in .com and/or .es, and last year 
the percentage of domains without prior, or contemporanious existence 
in .com and/or .es dropped below 50%.

You could argue some rate of market penetration for .nyc names each 
year, and assign that cost of maintenance of those domains in some 
other name spaces, e.g., .com and .us, as a "lost cost". That would be 
a credible estimate, and it is one of many I have made. However, that 
form of estimate requires one to say something about the maintenance 
of a "lost cost" in other name spaces, or the ratio of abandonment 
from those other name spaces to the .nyc name space, and that seems 
like pure guesswork to me. Worse, that only applies to registrants who 
choose to use first a .com/.us name, and then a .nyc name. Further 
complications arise for marks and keywords as domains, for which the 
.nyc registration policy may be distinct from the .com/.us 
registration policy (anything for a buck).

Eric

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> On Mar 31, 2011, at 12:07 PM, Eric Brunner-Williams wrote:
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>> On 3/31/11 1:52 PM, Richard Tindal wrote:
>>> Thanks for those kind words
>>>
>>> Where we differ is the effect on an applicant of being deferred to the second round due to any  'limitation' mechanism (this would probably be a one or two year delay - i.e. a 2013 application).
>>>
>>> You don't see this as a major problem for deferred applicants, whereas I think it would be very harmful to some applicants (and their prospective users).
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>> The City of Paris entered into a process to select a registry operator in 2007. The City of New York did so in 2009.
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>> These two applicants have been waiting for ICANN to accept applications, for for its own reasons ICANN has refused to accept applications from each, arguing that it, ICANN, had some policy development, unrelated to either application, to resolve as a precondition to accepting either application.
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>> At some point, perhaps in 2011, in this one-of-two hypothetical to explore the claim of harm, one of these two application is accepted by ICANN, and in 2013 the other of these two application is accepted by ICANN.
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>> Assume Paris before New York (unless you find a good reason to entertain New York before Paris), and describe the harm to New York (or Paris), resulting from this delay.
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>> I hope this isn't necessary, but under the GAC model, the status of Paris as the capital of a territory with a code point in ISO 3166, and the lack of that status for New York, is not relevant, as the GAC model proposes, inter alia, to do more than just establish and resolve contention sets. So both .paris and .nyc are to be allocated unconditionally to the applications brought by the municipal authorities of Paris and New York City, respectively. I just wanted to eliminate this as a possible rational for harm, as I believe you're making a much broader delay-equals-harm claim.
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>> Eric
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>>> On Mar 30, 2011, at 4:54 PM, Eric Brunner-Williams wrote:
>>>
>>>> Richard,
>>>>
>>>> First, my condolences. Of the many persons I've worked with while responsible for XRP/EPP standards development at NeuStar and the technical aspects of NeuStar/NeuLevel's .biz and .us applications, and competed with prior to separating from CORE, I consider you to be one of the most level headed and pragmatic, as well as ingenious, of the for-profit advocates, and your lack of employment indicative of how clueless and unenlightened the self-interested actors in the .com following portion of the domain name industry really are.
>>>>
>>>> There are two models to work with.
>>>>
>>>> The Staff model, which for all of our respective advocacy, and that of our peers, we've only decorated slightly since San Juan. That one has one or more tranches of 500 from a single application window, with no policy tools to differentiate applications other than those for the purposes of determining string contention outcomes.
>>>>
>>>> The GAC model, which so far has not much specific form (not that the Staff model has a lot of essential form, though it has a great deal of simulation of form), and which I and some others may manage to decorate slightly. That one has a sub-tranche, and after a period sufficient to resolve some outstanding policy issues, another sub-tranche, possibly both from a single application window.
>>>>
>>>> The Staff model has the feature that it is nominally cyclic, and a second application window, with attractive features like the possibility of lower cost to the applicant, in a year or two after the first round.
>>>>
>>>> The GAC model has the feature that it proposes that the set of policy issues in which applications not policy-qualified (and the term in Heather's letter of Oct. 23rd was "non-controversial" which I hope we can agree means policy-qualified for some statement of policy, regardless of what one's views on the utility or necessity of that policy may be) can be resolved in a period comparable to or less than what Staff proposes as the period between rounds.
>>>>
>>>> Abstractly then, the two models into which to fit our competing assumptions are an application window in which anything is accepted (Staff) and an application window in which less than anything is accepted (GAC), and regardless of the absence or existence of condition on that first application window, recurring windows without restriction.
>>>>
>>>> So if you accept the above, then I suggest that the problem you've posed, Paris before New York (or the reverse), results in no harm to the application which is deferred for lack of capacity in the tranche beyond a delay. Paris, or New York, waits a year or two and then its application is processed. Given the modest level of harm to the municipal governments of Paris and New York of any year of delay, it is not a given that the harm of deciding which to delay is sufficiently great to abandon the putative advantages of the GAC model for the putative advantages of the Staff model.
>>>>
>>>> I commend to you the recent paper prepared for Rod Beckstrom by ICANN Staff on the NTIA NOI for the IANA Functions. You'll find that ICANN Staff are quite committed to the preference of private agency, of necessity for-profit (and of course dominated by the highly profitable), over public agency, to a truely astonishing degree.
>>>>
>>>> As to the mechanism for limiting to N some set of M applications, where all M applications meet some policy criteria (GAC model, generally), where M is greater than N, a spelling bee using words from the first language of the applicant would suffice, as there is, as I pointed out above, little actual loss to qualified applicants in deferring the processing of their application by the interval currently proposed in either model.
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>>>> Eric
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