[NCSG-Discuss] Closed Generics - a letter together

[David Cake]

On 26/02/2013, at 11:39 PM, Milton L Mueller <mueller at syr.edu> wrote:

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> 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. 
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> [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.  

	'Retroactively' implies the decision was clear in the past that we now wish to change. 
	Oddly, almost everyone involved in this debate seems very clear that the decision was already made in the past. Yet they differ 100% on what the decision was, and you can't both be right. 

	
> 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.

	This is perhaps the clearest statement of the problem about  both sides claiming the decision was made - so we decided to allow ".brands", and so obviousl we assumed everyone would of course understand that the definition of brand used would bear no relationship to the existing legal, or general use, definitions of the word brand, but would obviously allow the definition of untrademarkable generic words that can't legally be a 'brand'. Uh, what? 
	

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> 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.

	When what you mean is 'I have an interesting interpretation of what the Vi Working Group decided, this disagrees with what some members believed it said, everyone who disagrees with my interpretation is holding the process back'. 
	As far as I can tell, there is no default permission for operating 

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> 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. 
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> [Milton L Mueller] Domain names are NOT trademarks.
	
	Indeed, they are not. You do understand why I'm using the word 'analogy' there, right? 

> 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.

	I've been arguing that domain names are not trademarks names in order to reduce the restrictions commercial users place on domain names, not to increase them. I don't really see how 'yeah, that isn't a trademark. If it was a trademark, maybe you could win a UDRP, but its just my property, so get out' is an improvement. 

> 
> 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.
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> 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.
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> [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.

	Just because I pointed out that we have significantly higher requirements for gTLD operators these days? 
	Actually, I though with the not jut 'chuck up a copy of BIND' I was referring to security, stability and resiliency requirements, rather than mystification. If you find those conservative, protectionist, etc we might disagree at the rather more fundamental level of what the entire internet governance process is for - apparently, I'm ignoring the true goal of promoting laissez faire capitalism over all other considerations, including security and stability? 


> 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.

	I'm all in favour of JAS etc, but you think the real problem with gTLDs applications from developing countries is that we make them do DNSSEC, escrow, string similarity etc, and so we should drop those policies? 
	You can run a smallish registry probably reasonably easily with a single good engineer, and you can definitely run a smallish registry on those terms if you are outsourcing most of your requirements to an existing provider of technical registry services, as most new gTLD registries are planning to so. It isn't a huge burden. Asking registries to raise their technical standards beyond that of a mid-90s ccTLD doesn't seem to be a terrible imposition, given the benefit to the registrants and general users. 
	

> 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.”

	Indeed they did. And it was perfectly appropriate at the time. 

> Whatever happened to the idea that easy, open entry and innovation promotes freedom, diversity and autonomy online?

	Nothing. But a couple of decades of internet growth and advancement have changed our expectations. DNSSEC, escrow, outage requirements etc have helped registrants and the general public interest, and I think that is more important than keeping the laissez faire cowboy capitalism of the early internet going. Basically, we grew up. But apparently not all of us - some of us still cling to Hayek's dream? 

> 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.

	Ah, you just can't help but keep trying that false equivalence argument, can you? Just going to keep insisting that running a new gTLD is just the same as throwing a site up on a 3LD. 
	Are there any signs that anyone, even the people who agree with you, think this is a strong argument for your position? 


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> 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?
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> [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.
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> 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.

	I'm sorry Milton, I though we were in a multi-stakeholder environment. Clearly, we should be in a single stakeholder environment - as long as that stakeholder is you. The Milton-Stakehholder model.
	We accept the GNSO policy assumptions because if we don't, we are outside of the process, muttering angrily to ourselves without contributing constructively. Which isn't to say we shouldn't keep considering alternatives, but when offering policy to ICANN/GNSO debate, we have to engage with the policy they have actually already made, not just what we might wish they had done. 

	Cheers
		David
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