[NCSG-Discuss] Closed Generics - history

[Avri Doria]

On 8 Mar 2013, at 12:17, 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.  

On the contrary.  I can imagine a set of rules and advantageous mutual business relationship that would allow a contract that at least few Registrars would accept.  

It isnot different hat the support GTLDs now or the Communities in the future, they have very strict conditions that perhaps only a handful of registrars would be interested in accepting.

Who is ICANN to decide on such Registrar-Registry contract details?  Do we now want to regulate that?  All that is required is that equivalent conditions be offered to all.

> 
>> 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. 

the policy is that anyone can object to something they think isn't in the Public Policy.  The have to prove their case.  The applicant does not need to prove they are, they merely need to defend themselves against the claim that they aren't.

> 
>> 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 you 100% wrong, but will have to A2D*
I think that even in ICANn one is innocent until proven guilty.

> 	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. 

By consensus you mean unanimity?

> 
> 	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). 

When if comes to words on the Internet, except for neologisms, wolds are all generic unless someone claims it to be brand.  Why should this argument rest on Trademark laws, that say a generic name is only ok for private treatment if someone has marked it.

> 
>> 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. 

Not at all meaningless.  You may not like its meaning, but as long as equal conditions are applied to all registrars, it has meaning.

avri

avri


> 	Regards
> 		David
>> 
>> avri
>> 
>> *  and that established by ICANN Staff not the policy process - though we did differentiate treatment for community applications
>> 

A2D - Agree to Disagree