Closed New gTLDs - "Closed Gardens"

[David Cake]

On 07/09/2012, at 3:54 AM, Milton L Mueller wrote:

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>  
> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of David-who-agrees-with-Milton Cake
> 
> Amazon don't have a trademark on book - and we would never let them have one. So why should we grant them any exclusive rights on .book, to be used only for their own branded product?
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> Ø  That's the point about open and free: ICANN doesn't get to decide who has a "right" to it. Whoever gets it, gets it. Whoever is granted .BOOK will do with it what they will. To me, as an advocate of Internet freedom, it doesn't matter if it is Amazon or a group of whining GNSO members trying (in vain, and at great length and expense) to force whoever uses .BOOK to adopt their favored policies. All we are debating is what policies and procedures will dictate registration in or use of that domain. Any attempt to collectively determine this is a needless invitation to perpetual regulation and conflict. Haven't we had enough of that crap with the trademark people, who think any appropriation and use of words should be subject to THEIR precious concerns? You are just reproducing all their arguments and all their techniques.


	This sounds like an extreme formalist argument - ignore the specifics of any given case as long as the procedure is the same. 
	What is the point in arguing for the public interest to be considered at all if you don't want to apply it to any specific case, only to abstract procedural concerns? 

	FWIW, I don't think an argument about open vs closed (or restricted) domains has merit in the abstract - but I do think that there is value in considering the merits of individual cases. Apparently, you don't? It is all just strings, and the public interest considerations for .book should be exactly the same as the public interest considerations for .adsfhda or .auieq or .arbitrarystringofletters? 

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> And I disagree with Milton on this - the space is vast, yes, but not all strings are equal, and there are no synonyms for book of equal quality. 
> Yes, it isn't a monopoly, but it is a significant competitive advantage that I don't think we should be selling exclusive rights to.
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> o   Oy veh. You are confusing a domain name string with its referent. In other words, you believe words are magic talismans. You think that if I control a dns string that corresponds to a word, I control (or have a "significant competitive advantage over") the market or all the things that that word stands for.

	I believe words have a significant semantic connection to its referent, otherwise language is meaningless. I'm assuming you don't disagree with this position. I believe more people are familiar with the word book than are familiar with the word grimoire or libram (dungeons and dragons players notwithstanding), and so those attempting to promote their book business using the word book rather than the word libram have some advantage. And that some semantic association between the domain name and object referred to has some psychological advantages in promotion. 
	And lets be clear - Amazon sides with me on this principle. There is a natural assumption that books refer to the generic object. Amazon knows that there is some semantic sleight of hand going on, and are planning on taking advantage of it. 
	There is a real argument here to be had about whether we should apply public interest considerations to individual non-community new gTLDs or simply treat them all as commercial investments whose open or closedness is of concern only to the investor - but you seem to not even want to approach that argument, and instead take the position that there is no intrinsic market value to words based on their semantics. 

> Bollocks. Can you provide me with any evidence for this claim?

	You want evidence for the claim that people associate books with the word book? Or that being able to promote your books using the word book rather than the word libram constitutes any advantage? 
	Or you want me to provide evidence that I believe your bizarre interpretation of what I said? 

> And can you tell me why the same logic doesn't apply at the second level under .com? I have already shown that Books.com is controlled by a failing bookseller:

	Part of the public interest justification for the new gTLD program is precisely that the wider range of 2LDs will dilute the importance of grabbing one of an artificially limited number of 'good' ones. It doesn't seem a particularly good idea to just move that idea of artificial scarcity up a level. 
	But I take it your argument is 'if good names have market value, why aren't all the companies with good names winning in their business category'. To which I can only say, either you misunderstand the idea of competitive advantage, or have an awfully odd idea of how markets work. Businesses with one significant competitive advantage make other poor choices, or fail to overcome other market disadvantages, and fail all the time. Same with domain names. Doesn't mean we should ignore the public interest considerations of any possible competitive advantage just because it doesn't grant guaranteed success. 

> Barnes and Noble. Someone paid a lot of money for BUSINESS.COM back in the day - did they control all business? Possession of domain names is helpful supplement to a good service and marketing strategy. Sure, they have some value, and some have more value than others. That's why they are contested. But the idea that you are selling exclusive control of markets is just nonsense.

	Of course - but of course, i never said that. I said 'significant competitive advantage'. Sometimes, despite a significant competitive advantage, people still drop the ball. 
	I specifically 'not a monopoly', in fact. Do you have difficulty understanding the difference between exclusive control and competitive advantage in a marketplace? 

> o   But, since you believe in verbal magic, I am going to call you "Dave-who-agrees-with-Milton" for the rest of your life, and get others to do so as well. This will guarantee that you will agree with me, and abandon your foolish views. I like this kind of magic.

	If you are going to use magical methods, I suggest you make a little straw man effigy of my arguments, surely by burning it you will have refuted me? Do you see what I did there?

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> Restricted registration (not the same as closed) may well be in the public interest in some cases. I think the case for restricting .bank to banks is reasonable, even if we use the word bank for some other purposes (food bank, seed bank, etc). And restricting .ngo to NGOs etc. 
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> o   Dave-who-agrees-with-Milton, the DNS can't be run on casual determinations as to what is "reasonable". BANK is just as generic as BOOK. If you think one can be closed and the other can't, you are in effect proposing a regulatory distinction that must be transposed into a rule that can be impartially applied to any and every TLD application for the next 50 years.

	I am indeed proposing that the meaning of words should have some relevance to whether or not open registration is in the public interest. Further more, I would suggest that the broader social and legal context should have some relevance to whether or not open use is in the public interest, rather than just looking at a dictionary. I'm quite surprised that you find either of these contentions controversial - the relevance of both meaning, and social and legal context, would seem implicit in just about every ICANN policy debate about the desirability of registration of names, I fail to see why the question of open vs restricted or closed registration should be any different. 
	For example, in most jurisdictions we do, in fact, regulate which financial institutions are allowed to call themselves banks - and while that doesn't detract from the idea that bank is a word with many meanings, it does point to the fact that there are public interest considerations involved in the use of the term bank, and that having some rules regarding registration is likely consistent with both local laws. Furthermore, that financial fraud and phishing does constitute a large enough social problem that it should be considered a factor. 
	

>  You are then proposing a kind of regulation of acceptable use of words that is far more injurious to freedom than whatever Amazon does with .BOOK. Think, please, about the policy consequences of your position. Do you cherish the idea of spending another 6 years in the ICANN-GNSO-ALAC-GAC morass deciding a) what is a generic term, b) which of those terms are "reasonably" subject to restricted registration c) wtf the "public interest" in this is across any and all strings? Can you imagine all the crap that would be piled onto such a regulatory process by all the special interests involved? Do you really want to go down that road? Do you REALLY understand what you are getting into?
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> I'm OK with .brands having closed registration - the logic is essentially the original, public interest, case for trademarks, that it protects consumer interests to prevent attempts to claim false association. 
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> o   I am ok with anyone using a domain for whatever the heck they like, as long as it doesn't constitute a crime or a tort.

	Which is an interesting position to take, that public interest is irrelevant, apart from the narrow case of criminal behaviour. 
	Though even that difficult to reconcile with the position you have taken - there are indeed criminal laws governing use of the word bank in many jurisdictions, for example

	Cheers

		David

	
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