New GTLDs: Upcoming GNSO Council Meeting

[Milton L Mueller]

Evan
Thanks for your rather slanted take on the hearings.
I must say that I am routinely embarrassed about our Congress. It’s hearings are no longer handled as opportunities to gather information from all sides so as to inform legislation, but as stage-managed rewards to lobbyists and campaign contributors. People who lobby the hardest and pay the most get their views represented in these hearings, others don’t. These events have zero integrity. It’s odd to see an ALAC representative cheering this kind of nonsense on. But let me deal specifically with your “descriptions”

  *   The assertion by Kurt that the gTLD program had achieved a broad consensus was shot down by three other presenters, including former ALAC and ICANN Board member Esther Dyson. (It should be noted that the last official statement by ICANN At-Large on the issue -- made at the Mexico City Summit -- deemed the gTLD program "unacceptable". That position has never been rescinded;
[Milton L Mueller]
True global “consensus” – meaning, no disagreement by anyone – is absolutely and utterly impossible to achieve. It’s wearisome to see people using the term “consensus” as if it were a trump card that can be used to stop anything they don’t like, and yet cheer happily when the things they do like are pushed with even less agreement. So, Evan, by your current definition there was no “consensus” on the ALAC position on the new gtld program (I can name at least 5 ALS’s who don’t agree with it) and there is no “consensus” on the status quo regarding Whois, yet you and others are happy that we have and don’t complain about it. Double standard, anyone?
Here is the simple fact that game-playing with the word “consensus” ignores: ICANN has defined consensus to mean a certain type of majority in the policy making councils, and approval by the Board. That is what a “consensus policy” is. Full stop. It is enshrined in the by laws and the GNSO operational rules as such. By that standard, the new gTLD program achieved consensus. It was passed by the GNSO and the Board. People like you (and others in NCUC and elsewhere, for varying reasons) who are not 100% happy with the program were not successful in making certain modifications. But we bought into the process and now have to live with the results. Or at least, that would be the perspective of an honest person.

  *   The fear of needless defensive registrations is very real.
[Milton L Mueller] Yes, the FEAR is real. The question is whether the fear has any basis in fact.
There was mention that Indiana University felt it had to acquire "hoosiers.xxx",
[Milton L Mueller] Case in point. Why “must” they acquire hoosiers.xxx? Do they have a right to it? No. The term hoosiers is not owned by them, unless used in a way that causes confusion with the University. Will they be harmed if they don’t? How exactly? Most of what we are hearing from the brand lobby is nothing more than fear-mongering.
and that the owner of a company called "Meetup" was unable to acquire "meetup.xxx" because ICM has deemed that a high-value name and has reserved it for auction.
[Milton L Mueller] And oh by the way, .xxx was created under a new tld program that started in 2004 and is completely independent of this new gTLD program. Indeed, the argument you are advancing could be applied to ANY new TLD. So since when did ALAC oppose all new TLDs? Since when was that a position that has anything more than a tiny sliver of support?
This is compounded by the discussion that a number of Senators have had their own personal names acquired by speculators and, in their eyes, "held for ransom". The logic seemed to be that if such difficulties happen when there are just 22 gTLDs, how much worse will the situation be if there are 200 or 2,000 TLDs?
[Milton L Mueller] This is a great illustration of the tautological thinking that characterizes the opponents of new TLDs. First, assume that you have to pre-emptively register your name anywhere it can possibly be used; second, season that idiotic assumption with another, equally idiotic one, namely that in a world of 2,000 TLDs any 2LD name is incredibly valuable. Make those assumptions, then complain that more TLDs makes your life more difficult.
In fact, with 200 or 2000 TLDs the artificial scarcity and concentration of the name market that makes jayrockefeller.com so scary starts to erode, and becomes less and less meaningful. A domain name starts becoming what it was always meant to be: a globally unique identifier that you have to know, rather than guess, kinda like a phone number. And that’s all to the good.
I would consider the ability of any member of the population to acquire a domain name that has a Senator’s name in it to be a good thing. Why are the savants of ALAC seeking to protect politicians from being talked about? Do you think I should have the right to write a critical book about a Senator and name it “Senator X”? If not, why not? If yes, what is the difference between that and my right to register that person’s name in a domain?

  *   The refusal by ICANN to stagger approvals or announce future rounds suggest that, if there are any early lessons to be learned in the rollout, it will be too late to apply any of those lessons by the time they're identified. And ICANN seems to have absolutely no idea -- not even an order of magnitude -- just how many applications it will receive.
[Milton L Mueller] Actually this is wrong, they’ve said they will only do 1000 in the first round. And there are lots of estimates floating about regarding how many applications there will be.
FYI: There is already discussion within At-Large regarding adding further commentary on this issue for submission to the Committee.

[Milton L Mueller] That gets you all excited, eh? Why are you submitting something to a Congressional committee that has no legislative or other authority over ICANN? Why are you helping to reinforce the prejudices of a U.S. governmental committee that is only catering to a few lobbyists by holding this hearing and will disappear now that they’ve given those lobbyists their little show? Do ALAC members approve of this? Is there “consensus” on that? This is the kind of representation we are getting from our so-called representatives of “Internet users?”




On 8 December 2011 22:47, Nicolas Adam <nickolas.adam at gmail.com<mailto:nickolas.adam at gmail.com>> wrote:
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<tel:%2B64%2021%20263%202753>
Skype id: joy.liddicoat
Yahoo id: strategic at xtra.co.nz<mailto:strategic at xtra.co.nz>


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