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<font size="3" face="Lucida Grande">Thanks first to all for a very bracing, thoughtful and informative discussion on both sides, and thanks to Kristina, Ron, Milton and others for submitting public comments that illustrated just that.</font> </p>
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<font size="3" face="Lucida Grande">IIRC, the ROCC was developed partly as a result of the GNSO discussions over what was called single-registrant TLDs, and concerns over whether these would exclude registrars (and possibly be problematic for the non-discrimination policy). The problem with the single-registrant discussion, IMHO, was that so many people were so focused on the dot-brand issue - e.g. what if IBM operates .ibm solely for internal purposes? - that the very strong likelihood that there would be SOME dot-generic-word registries that would be operated along similar lines just didn't get the same amount of "air time" or focus.</font> </p>
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<font size="3" face="Lucida Grande">That's not to say the possibility was not ever contemplated. It was. It's inherent in the nature of a gTLD - the operative word is "generic". </font> </p>
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<font size="3" face="Lucida Grande">As I said in my public comment on the issue, we had enough problems trying to define "public interest" in the whole Rec 6 (Morality & Public Order) debate, which led to a widening of what became the Limited Public Interest Objection. At least in that category, one can rely on principles of public international law and take some comfort in the fact that a third party neutral who is a jurist in that legal field will make the decision (whether one agrees with it or not).</font> </p>
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<font size="3" face="Lucida Grande">Asking ICANN to say that Registry A can't be approved because it's too closed a registry and as such against the public interest, while Registry B can be even though it's closed but NOT so much as to be against the public interest, would be subjective and poor policy. And asking ICANN to ban all closed registries (defined by ICANN when neither trademark law nor public international law has such a definition) while allowing dot-brands and existing generics to continue would be just as rationally and legally indefensible.</font> </p>
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<font size="3" face="Lucida Grande">Bottom line - the GNSO had a chance to delve more deeply than it did into the issue of so-called closed generics. Maybe it should have. However, it would not be true to say it never considered the issue - probably truer to say that many didn't think it was going to be such a big issue for some stakeholders, especially as it was distracted during the single-registrant and standard-versus-community discussion by the dot-brand issue (and the vociferous trademark arguments.)</font> </p>
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<font size="3" face="Lucida Grande">Cheers</font> </p>
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<font size="3" face="Lucida Grande">Mary</font> </p>
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<font face="Lucida Grande" STYLE="font-size: 12pt"><br>Mary W S Wong
<BR>Professor of Law
<BR>Director, Franklin Pierce Center for IP
<BR>Chair, Graduate IP Programs
<BR>UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
<BR>Two White Street
<BR>Concord, NH 03301
<BR>USA
<BR>Email: mary.wong@law.unh.edu
<BR>Phone: 1-603-513-5143
<BR>Webpage: <a href="http://www.law.unh.edu/marywong/index.php
">http://www.law.unh.edu/marywong/index.php
</a><BR>Selected writings available on the Social Science Research Network (SSRN) at: <a href="http://ssrn.com/author=437584">http://ssrn.com/author=437584</a>
<BR><br><br></font>>>> </p>
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David Cake <dave@DIFFERENCE.COM.AU> </p>
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<NCSG-DISCUSS@LISTSERV.SYR.EDU> </p>
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<b>Date: </b> </p>
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3/8/2013 12:19 PM </p>
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Re: [NCSG-Discuss] Closed Generics - history </p>
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On 09/03/2013, at 12:19 AM, Avri Doria<avri@ACM.ORG> wrote:<br><br>> ( i really wish the NCSG list would accept my email the first time I send it)<br>><br>> Hi,<br>><br>> I beleive the ROOC is only a concern if they are unwilling to use Registrars. If they are willing to become, or set up, a RAA registrar and offer the same deal they offer themselves to all Registrars, I do not beleive they need any exception.<br><br> My reading of the ROCC was that you can't remain closed (or at least, closed and with a usefully large number of registered domains) while using Registrars. I guess it is theoretically possible to use the registrar model, yet set the restrictions on registration so tightly that no one but the registry can meet them. It would seem that such a model would be designed for no purpose other than to circumvent any restrictions on closed registries though, and I suspect ICANN might similarly see look on such an arrangement with a suspicious eye. <br><br>> As for the issue of not being permitted without being in the Public Interest why should they be subject to a consideration that others are not subject to?<br><br> In this message I wasn't attempting to argue whether the policy is the best one - only establish what the policy is. And hopefully put to rest the argument that everyone considered this resolved in 2008 or whatever.<br><br>> I think the issue is that someone would have to Object to each on a Limited Public Interest basis. If they can argue that that particular TLD is detrimental to the public Interest it can be disallowed. I do not beleive that they can be condemned as a class.<br><br> No, I don't think that is the issue at all. ICANN could probably decide to interpret it that way if they really wished, but the policy as written clearly has the onus on the registry to demonstrate that there is not a public interest problem, rather than the onus on objectors to claim that there is. I read it as, if you want to apply and you want to run it in a closed (registrar-less) way, you need to satisfy the three requirements in the exemption clause in your application. It isn't condemning them as a class any more than open registries are condemned by having to agree to abide by the rest of the ROCC.<br> I think that if ICANN decides it wants closed generics, then it could set the bar very low in order to do that (and equally, if it decides it doesn't, it can set the bar high), but waiting for an external objection would not meet the policy as written.<br><br>> The notion that there was a case against these as a category of gTLD is impossible as there were no categories. Yes, Bertrand wanted them. He wanted them real bad. But he did not get them.<br><br> I followed that discussion too. I am not claiming anything came out of it. I was just using it as an example of a discussion in which, if there was consensus about closed generics, it would have been mentioned, and it was not.<br><br> I am also not claiming that the policy, as written, specifically creates a category of closed generic, or anything like that. Rather, the existing policy defines conditions for running a closed registry, that include the maddeningly vague public interest test, and doesn't distinguish between branded and generic closed registries as such (and I guess the core of the substantial, rather than this historical sideline, argument is whether there is a public interest difference between a closed .brand and a closed generic).<br><br>> The only category* other than Standard was Community. And yes, categories have emerged since the new gTLD applications, but that was the point: until they emerged with the actual application we did not know they existed.<br>><br>> So, as just another way one might use a generic TLD, private (or so called closed) were envisioned as just another gTLD that someone could apply for subject to the same rules as any other gTLD. No exceptions were made to the nature or use of a generic TLD other than those imposed by law or community.<br><br> I think position is only consistent with the existing policy if you think the exemption clause, and particularly the public interest clause, in the ROCC is literally meaningless. Because otherwise, clearly there is a restriction on operating a closed, registrar-less, registry for the registry operators own use - three restrictions, in fact, one of which sets an addition public interest requirement.<br> Regards<br> David<br>><br>> avri<br>><br>> * and that established by ICANN Staff not the policy process - though we did differentiate treatment for community applications<br>><br>> On 8 Mar 2013, at 02:45, David Cake wrote:<br>><br>>> The really baffling part of this discussion to me is the way in which both sides are completely convinced that the issue was considered, and resolved, years ago, while disagreeing directly on what the outcome of that decision was.<br>>> It is, clearly, impossible that both sides are right.<br>>> So, I've done some digging.<br>>> <br>>> I looked at, for example, the Categories informal group that Bertrand put together in Nairobi in 2010 and tje subsequent discussion, because surely that would have made clear some consensus. It did not. In that discussion, the idea of single registrant generic terms was mentioned, but objected to quite strongly by some, while some spoke loudly in their defence (including Evan Leibovitch, at the time). It was made clear that single registrant gTLDs were possible, but if there was any discussion of closed generics it was only to flag that some people felt it was an issue. So I'm inclined to believe that this issue was not settled in 2010 or earlier.<br>>><br>>> The only point at which the issue seemed to be directly addressed within ICANN policy since then seems to be the VI WG. The VI WG resulted in the Registry Operator Code of Conduct (henceforth ROCC) that was incorporated into the Applicant Guidebook. The ROCC<br>>><br>>> The relevant portion would appear to be:<br>>>> • Registry Operator may request an exemption to this Code of Conduct, and 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.<br>>>><br>>> So, it seems pretty clear that:<br>>> - ICANN has considered the issue of closed TLDs.<br>>> - ICANN has NOT specifically considered the issue of closed generics, except as a particular case of closed TLDs. Closed TLDs are explicitly permitted, but are conditional.<br>>> - by current ICANN policy, a closed generic then is explicitly permitted, IF and only if it can demonstrate that application of this Code of Conduct is not necessary to protect the public interest.<br>>><br>>> Note that Registry operators registering names without going via an accredited registrar (except a very small set) is not permitted via the ROCC. If they want to actually a top level domain as a closed domain (generic or not), the current ICANN policy is that they should have to ask ICANN for an exemption on the grounds that the ROCC is not necessary to protect the public interest.<br>>> <br>>> As far as I can tell, that is the current policy - that closed generics are possible, but are not, by default, permitted. So, it appears that neither side is 100% right, and neither 100% wrong. ICANN still has the right to disallow any closed generic on public interest grounds as per the Applicant Guidebook.<br>>><br>>> So, as far as I can tell, the actual current ICANN policy is that closed generics are possible, but ICANN can choose to allow them only if they are convinced there is a public interest reason to do so.<br>>><br>>> Milton is, of course, correct that the 'public interest' is a problematic term. If you are to go on current policy, then the question of closed generics depends mostly on how 'protect the public interest' is defined, and of course both sides of debate could probably find a way to define it to suit their argument.<br>>> But I think it is time to stop saying that 'closed generics were decided on in 2008' or whatever. Current ICANN policy actually seems far from clear, and there does not ever appear to have been community consensus on the issue.<br>>><br>>> Thoughts? Responses?<br>>><br>>> Cheers<br>>> David<br>
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