[NCSG-Discuss] Closed Generics - history

[Robin Gross]

I was on the GNSO Council in the years we were developing the policy  
recommendations for new gtlds so I can say a little bit about what  
the debate and discussion was like in those days.  Anyone who is  
looking through records of old GNSO policy discussions to find the  
words "closed generics shall be permitted... in the new gtld space"  
won't find it for two main reasons.  First, the term "closed generic"  
only came up long after the GNSO passed its policy recommendations  
and after the board approved the recommendations.  This term "closed  
generics" was a label given to certain new gtld applications *after*  
they applied to ICANN and others didn't like them, sometimes because  
they were business competitors and others have a public interest  
concern.

The other reason one isn't going to find the words "closed generics  
shall be allowed" in the policy debates is because we were not trying  
to imagine every possible "type" of gtld that would be created and  
have a debate about whether that "type" of new gtld is in the public  
interest and should be allowed.  Quite the contrary.  We were  
operating under the premise that we would come up with policies of  
things that would *NOT* be allowed and then allow all other  
possibilities to flow.  So we were operating under the premise of  
'that which is not explicitly forbidden, shall be allowed'.  And all  
the debate and discussion was about what should we *NOT* allow.  And  
we had a lot of debate and discussion about that.  NCUC spearheaded  
the initial "Keep the Core Neutral Campaign" to encourage ICANN to  
stay away from over-regulation and prohibiting lawful speech in  
domain names.

So in those gtld policy formulation debates someone would propose "no  
2-letter gtlds, cause those should go to ccTLDs".   And someone else  
would propose "no gtlds that can't meet adequate security  
standards."  And someone else would propose "no gtlds that violate a  
trademark."  And someone else would propose "no gtlds that wouldn't  
be considered 'polite dinner conversation."  And so on.  We were  
coming up with lassez-faire recommendations to allow all that is  
legal, except for all these various little carve-outs that we fought  
over night and day for more than half a decade. (And there were far  
too many of them for NCUC's liking!)

And in all those discussions, I don't remember anyone ever saying "no  
gtlds that could be considered a generic word may be registered for  
private purposes".  No one ever brought up the concept of "closed  
generics" or raised it as something we should prohibit or be  
concerned about.  So irrespective of the underlying merits of the pro/ 
con of private label tlds, why wasn't it raised at the time we were  
debating what should NOT be allowed in the name space?  And if one  
can't find discussion of "closed generics" in the hallowed records,  
it is because we discussed what we should NOT allow, and permitted  
all else that is lawful.

I confess I'm not passionate about this particular issue.  Just puzzled.

Robin


On Mar 8, 2013, at 9:17 AM, David Cake wrote:

> On 09/03/2013, at 12:19 AM, Avri Doria <avri at ACM.ORG> wrote:
>
>> ( i really wish the NCSG list would accept my email the first time  
>> I send it)
>>
>> Hi,
>>
>> I beleive the ROOC is only a concern if they are unwilling to use  
>> Registrars.  If they are willing to become, or set up, a RAA  
>> registrar and offer the same deal they offer themselves to all  
>> Registrars, I do not beleive they need any exception.
>
> 	My reading of the ROCC was that you can't remain closed (or at  
> least, closed and with a usefully large number of registered  
> domains) while using Registrars. I guess it is theoretically  
> possible to use the registrar model, yet set the restrictions on  
> registration so tightly that no one but the registry can meet them.  
> It would seem that such a model would be designed for no purpose  
> other than to circumvent any restrictions on closed registries  
> though, and I suspect ICANN might similarly see look on such an  
> arrangement with a suspicious eye.
>
>> As for the issue of not being permitted without being in the  
>> Public Interest why should they be subject to a consideration that  
>> others are not subject to?
>
> 	In this message I wasn't attempting to argue whether the policy is  
> the best one - only establish what the policy is. And hopefully put  
> to rest the argument that everyone considered this resolved in 2008  
> or whatever.
>
>>  I think the issue is that someone would have to Object to each on  
>> a Limited Public Interest basis.  If they can argue that that  
>> particular TLD is detrimental to the public Interest it can be  
>> disallowed.  I do not beleive that they can be condemned as a class.
>
> 	No, I don't think that is the issue at all. ICANN could probably  
> decide to interpret it that way if they really wished, but the  
> policy as written clearly has the onus on the registry to  
> demonstrate that there is not a public interest problem, rather  
> than the onus on objectors to claim that there is.  I read it as,  
> if you want to apply and you want to run it in a closed (registrar- 
> less) way, you need to satisfy the three requirements in the  
> exemption clause in your application. It isn't condemning them as a  
> class any more than open registries are condemned by having to  
> agree to abide by the rest of the ROCC.
> 	I think that if ICANN decides it wants closed generics, then it  
> could set the bar very low in order to do that (and equally, if it  
> decides it doesn't, it can set the bar high), but waiting for an  
> external objection would not meet the policy as written.
>
>> The notion that there was a case against these as a category of  
>> gTLD is impossible as there were no categories.  Yes, Bertrand  
>> wanted them.  He wanted them real bad.  But he did not get them.
>
> 	I followed that discussion too. I am not claiming anything came  
> out of it. I was just using it as an example of a discussion in  
> which, if there was consensus about closed generics, it would have  
> been mentioned, and it was not.
>
> 	I am also not claiming that the policy, as written, specifically  
> creates a category of closed generic, or anything like that.  
> Rather, the existing policy defines conditions for running a closed  
> registry, that include the maddeningly vague public interest test,  
> and doesn't distinguish between branded and generic closed  
> registries as such (and I guess the core of the substantial, rather  
> than this historical sideline, argument is whether there is a  
> public interest difference between a closed .brand and a closed  
> generic).
>
>> The only category* other than Standard was Community.  And yes,  
>> categories have emerged since the new gTLD applications, but that  
>> was the point: until they emerged with the actual application we  
>> did not know they existed.
>>
>> So, as just another way one might use a generic TLD, private (or  
>> so called closed) were envisioned as just another gTLD that  
>> someone could apply for subject to the same rules as any other  
>> gTLD.  No exceptions were made to the nature or use of a generic  
>> TLD other than those imposed by law or community.
>
> 	I think position is only consistent with the existing policy if  
> you think the exemption clause, and particularly the public  
> interest clause, in the ROCC is literally meaningless. Because  
> otherwise, clearly there is a restriction on operating a closed,  
> registrar-less, registry for the registry operators own use - three  
> restrictions, in fact, one of which sets an addition public  
> interest requirement.
> 	Regards
> 		David
>>
>> avri
>>
>> *  and that established by ICANN Staff not the policy process -  
>> though we did differentiate treatment for community applications
>>
>> On 8 Mar 2013, at 02:45, David Cake wrote:
>>
>>> 	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
>




IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
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