[NCSG-Discuss] Closed Generics - a letter together

[Milton L Mueller]

The case that being a registrant of a second or third level domain is effectively ownership (apart from a number of specific legal ways in which it may not be) has been established, but the question of whether being a registry for a top level domain is thus the same as ownership, or should be considered as administration of a public asset, is not settled and is *precisely* what is under discussion.

[Milton L Mueller] This is what is disturbing about this debate. You are deciding retroactively that you suddenly want to declare TLDs the "administration of a public asset" even though you cannot even come up with a definition of what qualifies as a generic word, and any attempt to do so implies another 4 years of pointless policy making.

Declaring them a "public asset" may appeal to your policy predilections but it is not the policy in the new gTLD program. We had a long, hard discussion of whether there would be "brand TLDs" (answer: yes), whether there could be vertical integration TLDs (answer: yes) and whether, by implication, winners of vertically integrated generic TLDs could decide on policies that limited registration in the domain (answer: yes). That issue is settled.

Now, after complaining for years that TM owners and the IOC and Red Cross want to change policy at the last minute after it is settled, you and Kathy are doing the same.

There is a precise analogy with trademark law here. We allow registration of a combination of generic words as a trademark, but generally not a generic word alone, certainly not for all classes.

[Milton L Mueller] Domain names are NOT trademarks. That's the fight we've been having since 1996, and you are, in ignorance of that history and of the legal and political consequences, conceding defeat unilaterally when improvement, if not victory, is possible.

Granting an exclusive TLD registration to generic word FOO to a company is _not_ the same as granting the company a trademark on the term FOO, any more than holding BOOK in the SLD gives someone a TM on that word. This has already been pointed out, endlessly. Granting BOOK to Amazon, e.g., does not give Amazon a trademark or anything like a trademark on the word. Further use of that argument is intellectually dishonest.

Kathys example, that we don't simply allow TLD owners to just chuck up a copy of BIND on some cheap commercial hosting, even if it is a closed domain likely to only have a few dozen registrants within it, applies too.

[Milton L Mueller] Good to know you are siding with the TM owners and other conservative, protectionist interests in mystifying the TLD space and using that mystification as a rationalization for centralized, top-down regulation. I hope you like what you get. Probably in your next breath you will start whining about how difficult and expensive it is to get new TLDs and how "progressive" it would be to encourage people in poor, developing countries to get them.

As McTim pointed out, nearly all TLDs - including .COM by the way - started out by "chucking up a copy of BIND on some cheap commercial hosting." Whatever happened to the idea that easy, open entry and innovation promotes freedom, diversity and autonomy online? Maybe we should declare all web sites to be public trusts that have to be carefully approved and monitored by ICANN or some other central authority. We can't just have people chucking them up and throwing them out when done with it.

To treat TLDs as a very special important case of holding something in public trust, that you can't simply throw out when you are done with it, applies to TLDs in many many ways. Why should we suddenly assume that this special treatment of TLDs is irrelevant to ownership and registration?

[Milton L Mueller] Oh, so very, "very special"! It's really sad to see someone who purports to be from an Internet freedom advocacy organization drinking so deeply of the hoariest ICANN Kool-Aid. I guess if you hang around to GNSO too long you start absorbing its policy assumptions. You seem to be naively unaware of the degree to which those assumptions are merely products of the desire of the participants to justify their own relevance.

Sure, David, domains are much, much too important to be left to free people making choices and offerings on their own. People like you and Marilyn Cade are needed to tell us who should get them and how they should be run. If we just let anyone do what they want, the world will collapse.


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