New GTLDs: Upcoming GNSO Council Meeting

[Nicolas Adam]

There is lots of problems with this testimony and I wonder how informed 
NCSG members could have lent their support to this terrified plea. It's 
ok to be affraid, it just sucks when the people that are unreasonably 
terrified lobby to impose their fears on other.

I assume that the 3 days notice is responsible for the fact that no NPOC 
members dissociated themselves from this testimony "on behalf of the 
Not-for-Profit Operational Concerns Constituency known as NPOC".

For starters, the assertion that the " collective missions [of NPOC 
members] will be compromised due to the enormous cost and financial 
burdens [sic] of the new Generic Top-Level Domain Name Program (gTLD) 
[??]" has nothing going for it, save perhaps its rhetorical qualities. 
Such gross exaggerations will get you your project loan rejected, where 
I come from.

The conflation of the "gTLD program" with the lack of appropriate 
preemptive registration rights *built in* the new gTLD program is a 
conflation only matched in its self-servingness by the refusal to note 
that new gTLD are attributed on the merit, after a thorough business 
case is made by the applicant.

Lets look at this testimony bit by bit.

> The new gTLD program compromises use of the internet by increasing the 
> risk of fraud, cybersquatting, and trademark infringement and by 
> significantly escalating the cost to protect against such unlawful 
> activities. The following are areas of particular concern:
>
> ·domain name registration
>
> ·the introduction of new top level and second level domain names into 
> the DNS (Domain Name System)
>
> ·fraud and abuse, and
>
> ·using Internet platform to distribute and collect mission-related 
> information for our members and the communities we serve.
>


How? Did anyone at the hearing understand anything you were trying to 
say? Where are causes and where are effects? Those are grand statements 
that should be explicated. But we love our talking points, don't we.

> It is the goal of our organizations to educate all those responsible 
> for implementation of the new gTLD program about unintended 
> consequences.There is no doubt it will have a crippling effect upon my 
> organization and any nonprofit organization here and around the globe 
> in its current form.
>

Again, please explain.

> I'd like to begin with our budgetary concerns.
>
> Currently, the ICANN website quotes costs for one new gTLD to be 
> approximately $185,000 to file an application, with an annual cost 
> thereafter of at least $25,000 for a required ten-year term. This does 
> not include the legal fees required to prepare the application and 
> certain amounts required to be in escrow. Moreover, there are many 
> additional potential costs. For example, if an application is filed 
> and then placed into an extended evaluation by ICANN, the applicant 
> may have to pay an additional $50,000. An applicant may be required to 
> defend its application against objections, which range from $1,000 to 
> $5,000 in filing fees per party per proceeding, and an additional 
> $3,000 to $20,000 in costs per proceeding, which must be paid up 
> front.  Accordingly, the ultimate cost in proceeding through the 
> entire application process alone could reach several hundred thousands 
> of dollars. 

Wait, are you actually saying that it is hard to apply for and get a 
gTLD? Isn't your point that just anybody can get one that "looks alike" 
your acronym and run a fake fundraiser for a few weeks?

> If the Y or another NPOC member chooses not to participate in the new 
> gTLD program, it runs the risk that another entity will apply for use 
> of its name or one that is confusingly similar. In the event another 
> entity applies for a top-level domain that contains the organization's 
> name, the costs for filing an objection are expected to be 
> approximately $30,000- $50,000.
>

By "choosing not to particpate in the new gTLD program", you mean not 
apply for your own gTLD, right? Indeed, objecting to a bunch of kids 
trying to run their .YMKA could be very costly. If i was on your board, 
I would recommend a different course of action.

> While processes such as these may be useful in the commercial space, 
> not-for-profits simply do not have the resources to participate, and 
> will certainly not be able to be compete, against for-profit 
> organizations with large budgets and reserves for intellectual 
> property protection. 

In the "commercial space", people don't take advices from IP lawers with 
an agenda. Do you mean that under (any domestic, pick one) current law, 
it could be profitable to form large "for-profit organizations with 
large budgets and reserves for intellectual property protection" with 
the business model of applying for and getting NPO's look-alike gTLDs 
acronyms for the purpose of running fake fundraising? Because me and a 
few buddies in NCUC were looking for a new gig since bitcoin went down.

> Non-profit organizations such as YMCA, Red Cross, Goodwill, March of 
> Dimes, and countless others around the world not only prefer to, but 
> must, use our monies to provide critical services to our communities. 
> We simply cannot afford thousands of dollars to become a domain name 
> registry solely to ensure brand protection. 

I just love it when people use the word "monies". In french its even 
sexier. But you're right, "nos argents" are generally better spent 
elsewhere than following advices of scared IP lawyers with an agenda. 
(Just so I make myself very clear, I have nothing against lawyers, what 
with my dad being a Judge and my girlfriend a Crown prosecutor-- one of 
the best. I also respect people with different risk profile than mine, 
its just that in the present case, no amount of risk-averseness could 
justify such unreasonable fears, and so one is left with the 'hostile 
agenda' option.)

> ICANN's new gTLD program does not allow non-profit organizations to 
> protect their brands and avoid the public confusion that results from 
> their unauthorized use. 

Here we are. I know i've made fun of you. In the past, right now, 
amongst my friends in private, and in publicly archived policy-making 
forum. I'm sorry. I see now the need for me to tone down and compromise, 
if you will compromise with me. I have made no secret that I am 
*against* colonizing languages and addressing schemes with trademark and 
IP law. But I am ready to give you this one, for the sake of us reaching 
a consensus. I promise to not oppose reserve lists any more if you will 
stop trying to expand trademark and IP law in areas in which they are 
legitimately un-welcome (criticisms, dissent, satire, art mash-ups, and 
a few others). After all, since IP interests have begun colonizing NCSG 
in the guise of non-profit 'operational' concerns (please, Alain, don't 
tell me you can't see that), let's just make the best of it and decide 
right now that we will use our opposition to craft the most balanced 
approach possible. After all, both sides are ultimately in danger of 
winning too decisively, which inevitably precipitate the return of the 
pendulum, and creates the most instability. Since i'm on a roll here 
though, we can work out the details later ;)

> Recently one of our organizations, a large and historic organization, 
> became aware that an unauthorized entity was using its name to 
> fundraise, online and in the community. This led to confusion by 
> potential funders about which organization was seeking donations. This 
> is a common example of how our organizations are impacted by brand 
> infringement. 

As you make us painfully aware, there is no stopping all wrongdoing. The 
analogy is, sadly though, not on point. It does not take aplying for and 
passing the vetting process and investing lots of monies to run a 
phishing scam. Or was ICANN's new gTLD program at fault here?

> Under the new gTLD program, such instances could multiply because 
> infringers may be able to purchase the historic non-profit's name as a 
> domain name. If the non-profit does not have the funds to oppose that 
> action, immense public confusion and misrepresentation can result. 

Clearly, you haven't read the applicants guidebook.

> YMCA of the USA currently employs 1.5 full-time employees at a cost of 
> $225,000 annually, in addition to external legal expertise at a cost 
> of over $100,000 this year alone, in an effort to monitor and protect 
> the use of its brand.Many other not-for-profits cannot afford this 
> expense to protect their name and goodwill. The increase of new gTLDs 
> will further exacerbate this problem. 
Have you heard of SEO. It will do wonder for a fraction of this cost.

> The primary enforcement mechanism of the new gTLD Program is the 
> Trademark Clearinghouse, where trademark owners can list their 
> existing trademarks to take advantage of sunrise registration periods 
> and warn potential registrants of their rights.  The gTLD program is 
> due to be rolled out in less than 40 days. At this point, the cost of 
> listing marks in the Clearinghouse has not been set, creating more 
> uncertainty about the actual costs for participating in the new gTLD 
> Program. 

I see you've heard of this. There is a (justifiable) premium to be paid 
by extremely risk-averse people, unfortunately.

> As I have already mentioned, non-profit organizations are not in a 
> financial position to register their marks in hundreds of additional 
> gTLDs, particularly at premium prices.  Trademark owners will not be 
> allowed to preemptively register marks that are nearly identical to 
> their marks; such "look-alikes" are often used by fraudsters and cyber 
> squatters to deceive and confuse Internet users who are trying to 
> locate websites of not-for-profit organizations.
>
> If not-for-profit organizations cannot afford to register the domain 
> names in the first place, they can hardly be expected to have the 
> funds budgeted and available to file these complaints. Nor should 
> they, as these funds are better served fulfilling their humanitarian 
> missions. 

I'd hate to repeat myself, but if there is monies to be made in this 
business model, i'd appreciate if you could PM me.

> *_Public Confusion and Cybersquatting Concerns _**__*
>
> Not-for profits and NGOs rely heavily on the internet to provide their 
> respective missions. The public trusts the high-quality services they 
> have come to associate with these organizations in a reliable 
> manner.Our ability to ensure that the public knows and trusts the 
> public face of the internet for all of our organizations is paramount. 
Next thing you will know on the IP-powered Internet you are promoting is 
that the bulk of NPOs will end up on the wrong end of the IP stick, the 
highjacking and SLAPP end of the stick.

> Bad actors in the domain name space such as cybersquatters, 
> fraudsters, and others who register and use domain names in bad faith 
> to profit off of the goodwill of well-known entities have existed for 
> many years in the existing domain name space. 
Yet "Not-for profits and NGOs rely heavily on the internet to provide 
their respective missions. The public trusts the high-quality services 
they have come to associate with these organizations in a reliable manner."

(...)

This is getting redundant, in a non-technical sense, so let me just skip 
15 or 20 lines.

> *_Recommendations_*
>
> Our fears are not alone.There has been a ground-swell of internet 
> stakeholders, including the largest for-profit companies that have 
> repeatedly expressed concerns about the program beginning in January 
> 2012 when so many vital issues remain unresolved. 
Fears they are indeed. But the rest of the statement should be puzzling 
to smaller NPOC members or smaller prospective NPOC members.

> Therefore, we join this ground-swell in our concerns about the new 
> gTLD program. We ask that there continue to be input from 
> stakeholders, and careful consideration of the impact of this program 
> on the internet, and particularly on not-for-profits. Among the 
> numerous requests the NPOC has made to ICANN, we bring the following 
> to your attention:
>
> ·That verified not-for-profit organizations be permitted to exempt 
> their trademarks from any other applicant in the new gTLD program at 
> no cost, or if that is not possible, then at a drastically reduced fee
>
As i've said, since we are adversaries in principles (and I hope to be 
less time-strap soon so I can contribute to our discussion on 
fundamental principles), we should work together to create the only 
legitimate, balanced, framework for moving forward.

> ·That the mechanisms for trademark protection be significantly 
> strengthened, with the ability to proactively protect trademark owners 
> before any application is accepted
>

Let's discuss details. I will change my tone.

> ·That the costs to participate in the new gTLD program for verified 
> not-for-profit organizations be eliminated
>
I don't understand what you mean by 'participate in the new gTLD 
program'. But in any case, free is never really free, right? Time, yours 
and mine, is valuable. I'm doing this pro-bono. I hope you won't take 
offense if I ask if you are too?

Nicolas

On 12/8/2011 3:12 AM, Joy Liddicoat wrote:
>
> Hi all - as you know the next GNSO Council meeting will be next week. 
> The Chair has asked for an update on the Senate hearings on gTLDs that 
> are currently taking place <link?> I've just noticed that some NCSG 
> members were invited by the Committee to make submissions 
> http://forum.icann.org/lists/npoc-voice/msg00064.html and will do so 
> tomorrow: http://news.dot-nxt.com/2011/12/06/ymca-testimony-senate-hearing
>
> As GNSO councillors representing this SG, we would appreciate knowing 
> (before the GNSO meeting) if any others are also making submissions 
> and, if so, what those submissions are. If there are any particular 
> issues you want to be raised or for any of us Councillors to be aware 
> of, please let us know.
>
> Kind regards
>
> Joy Liddicoat
>
> Project Coordinator
>
> Internet Rights are Human Rights
>
> www.apc.org <http://www.apc.org>
>
> Tel: +64 21 263 2753
>
> Skype id: joy.liddicoat
>
> Yahoo id: strategic at xtra.co.nz
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncuc.org/pipermail/ncuc-discuss/attachments/20111208/40929aaa/attachment-0001.html>