[NCSG-Discuss] Closed Generics - history

[David Cake]

	The really baffling part of this discussion to me is the way in which both sides are completely convinced that the issue was considered, and resolved, years ago, while disagreeing directly on what the outcome of that decision was. 
	It is, clearly, impossible that both sides are right. 
	So, I've done some digging. 
	
	I looked at, for example, the Categories informal group that Bertrand put together in Nairobi in 2010 and tje subsequent discussion, because surely that would have made clear some consensus. It did not. In that discussion, the idea of single registrant generic terms was mentioned, but objected to quite strongly by some, while some spoke loudly in their defence (including Evan Leibovitch, at the time). It was made clear that single registrant gTLDs were possible, but if there was any discussion of closed generics it was only to flag that some people felt it was an issue. So I'm inclined to believe that this issue was not settled in 2010 or earlier. 

	The only point at which the issue seemed to be directly addressed within ICANN policy since then seems to be the VI WG. The VI WG resulted in the Registry Operator Code of Conduct (henceforth ROCC) that was incorporated into the Applicant Guidebook. The ROCC 

	The relevant portion would appear to be:
> Registry Operator may request an exemption to this Code of Conduct, and such exemption may be granted by ICANN in ICANN’s reasonable discretion, if Registry Operator demonstrates to ICANN’s reasonable satisfaction that (i) all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use, (ii) Registry Operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an Affiliate of Registry Operator, and (iii) application of this Code of Conduct to the TLD is not necessary to protect the public interest. 
> 
	So, it seems pretty clear that:
- ICANN has considered the issue of closed TLDs.
- ICANN has NOT specifically considered the issue of closed generics, except as a particular case of closed TLDs. Closed TLDs are explicitly permitted, but are conditional. 
- by current ICANN policy, a closed generic then is explicitly permitted, IF and only if it can demonstrate that application of this Code of Conduct is not necessary to protect the public interest. 

	Note that Registry operators registering names without going via an accredited registrar (except a very small set) is not permitted via the ROCC. If they want to actually a top level domain as a closed domain (generic or not), the current ICANN policy is that they should have to ask ICANN for an exemption on the grounds that the ROCC is not necessary to protect the public interest. 
	
	As far as I can tell, that is the current policy - that closed generics are possible, but are not, by default, permitted. So, it appears that neither side is 100% right, and neither 100% wrong. ICANN still has the right to disallow any closed generic on public interest grounds as per the Applicant Guidebook.

	So, as far as I can tell, the actual current ICANN policy is that closed generics are possible, but ICANN can choose to allow them only if they are convinced there is a public interest reason to do so. 

	Milton is, of course, correct that the 'public interest' is a problematic term. If you are to go on current policy, then the question of closed generics depends mostly on how 'protect the public interest' is defined, and of course both sides of debate could probably find a way to define it to suit their argument. 
	But I think it is time to stop saying that 'closed generics were decided on in 2008' or whatever. Current ICANN policy actually seems far from clear, and there does not ever appear to have been community consensus on the issue. 

	Thoughts? Responses? 

	Cheers
		David
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