[NCSG-Discuss] new-gtld-committee-not-sure-how-to-handle-closed-generic-applications

[Ron Wickersham]

A possible confusion exists for individual/consumer users of the Internet
with regard to second-level host names in closed new gtld's.   See below:

On Wed, 6 Feb 2013, Milton L Mueller wrote:

>
> I stand ready to be educated by those with different views.
>
> OK. Here is a different view.
>
> It is not a free speech issue at all. It is a vertical integration or business  model issue, exclusively. Some registries want to create a specific image or environment inside a particular TLD. Those registries are not trying to sell domain name registrations per se, they are selling or doing other things with the domain, perhaps even giving domains away to promote a service. They might also use their authority to control registrations to prevent speculators from grabbing all the "good" names, or to impose a taxonomy on the second level, or to prevent undesirable types from squatting or tarnishing the overall image of the domain.
>
> Other registries want to maximize the number of registrations under a TLD. In that case, it makes sense to be "open". In other words, if you are a registrar and want to sell hundreds of thousands or millions of domains to whoever will buy them for whatever reason, then you want "open" or FCFS TLDs.
>
> Not surprisingly, the real push for "open" and against "closed" TLDs is coming from traditional registrars who want all the potentially popular domains to be available for them to exploit as registrars. The free speech and competition policy claims are pure diversions.
>
> Take .BOOK for example. If someone wants to open that up for anyone on a first-come, first-served basis, there are advantages and disadvantages. Sure, I could register networksandstates.book in an open domain, if I wanted to. But someone else might register it before me, or someone might register nonfiction.books (so there's that "terrible" appropriation of a generic term again). Wrose, 600 different link farms might appropriate other generic terms (sex.books, good.books) and just pile pay per click ads onto them, so that anyone using the domain would never know whether a specific domain was useful or just a commercial diversion.
>
> I don't think it's ICANN's job to say that either one of these business models is the right one. I think there is an important place for both models, and the proper decision maker to decide which one to use is the person who risked about $1 million to get the domain and operate it.
>
> The competition policy claims are especially laughable, because unless you confuse the market for books with the market for names under .book, it is obvious that possession of the latter does not do anything to give you monopoly control of the former.
>
> Likewise, I don't see the freedom issue here. In fact, freedom of expression and property rights are mutually reinforcing in this case. If I register a domain like .IGP and want to use it to push a particular topic or point of view, it's my right NOT to allow, say, advocates of Scientology to register domains under IGP. If I have to lend my domain to promotion of causes and ideas I don't support, my freedom of association and expression rights are being restricted.
>
> Edward, you have a domain under USC.EDU. USC is not obliged, on free speech grounds, to allow me to register a name under their domain. This is not a restriction of my right of free speech so much as it is an extension of USC's right of free association and free speech. There are plenty of domains to accommodate diverse views.
>
> Generic words in the SLD space have been registered - and restricted to what their owners want them to do - for more than a decade. I don't see how TLD vs SLD changes the issue in any relevant way. Would you contend that your right to freedom of expression is restricted because you can't register <foo>.book.com? If not, why is it a restriction to not be allowed to register  <foo>.book? I think we would both probably agree that if someone else registers book.com before me, then I don't have any right to use the domain book.com. Why is it any different for .book?
>
> Remember, new domains are NOT .com; i.e., they have no monopoly power or lock in power on existing registrants. No one has to use them or register in them.

But in .com, there is a protection for trademarks at the second level,
and a mechanism to contest the _use_ of names at the second level based
on confusing a consumer.

For instance, if I see the name of a bank, followed by .com, I don't
expect that wellsfargo.com will belong to a competitive bank.  And if
.bank were to be an open tld, then Wells Fargo Bank would be able to
register wellsfargo.bank, and if someone else registered wellsfargo.bank
the real wellsfargo.bank would be able to contest the registration.

Yet if, for instance, citi bank were to apply for and be granted .bank, 
then a totally hands-off approach would permit them to provide a web page
at wellsfargo.bank.   They are extremely unlikely to use that page to
ask for Wells Fargo Bank customers to log in with their password, but
they could create a page that offers Wells Fargo Bank customers a special
offer to switch banks, and Wells Fargo would not have any mechanism to
contest the 2nd level use of wellsfargo.bank in this manner thru ICANN.

Of course, web traffic is only a part of Internet capability.   And I grant
that a solution to the above dilemma may not exist.   I am interested in
hearing more discussion on second level in closed generic tld's.

-ron wickersham