[NCSG-Discuss] Independent Objector Weighs In on "closed/private" tlds

[David Cake]

On 17/03/2013, at 8:34 PM, Milton L Mueller <mueller at syr.edu> wrote:

> Important lesson for all NCSG members: 
> People who get on the GNSO Council often absorb assumptions and attitudes about policies that are contrary to our principles and not fully supported by either the membership or our stakeholder group. It's very easy to do, I know because I've been there. You engage in intense discussions with the other councilors and SGs. The paremeters of your thinking start getting constrained by what the others think. You start thinking, "well no one else supports this or even thinks about it in a principled way, so why bother to challenge it." Case in point, Mr. David Cake:

	You misunderstand me completely, Milton. I do not debate your principle here, only your tactics. I'm in broad agreement with your principle, but if you want to take it on and change the policy, then do it. Float the idea here, try to get general NCSG support. But don't just take potshots at tiny, incidental, issues as they go past, with added personal swipes at your colleagues as you go. 

	Also, this has nothing to do with council, being as it is an IO decision, and you know it. Stop just taking opportunistic potshots that harm only NCSG, and suggest an actual course of action. Or not. 
	I mean, it isn't a council decision, has never been discussed on council, and likely never will be, yet this attack on my objectivity results  because I happen to post a message that disagrees not with your principle, but just puts it into a broader context. I submit that trying to create opposition to an IO objection might not be of great tactical value considering the community has already accepted its underlying reasoning. I submit also that taking personal swipes at your colleagues objectivity might also not be of great tactical value, and you could probably find better things to do with your time. 
	But hey, if you do think the principle is worth fighting for, you could always contact Amazon and Patagonia and offer to help them with dispute resolution. 

>> -----Original Message-----
>> 	IF we accept that national governments have a right to
>> block/control the use of the names of geographical areas that fall
>> within their borders, THEN it seems reasonable to me that 
> 
> [Milton L Mueller] But that is precisely what is at issue here. I do not accept that assumption. More importantly, there is no defined body of law that supports that assumption. They are just making it up - grabbing rights because they can. Which is precisely what TM owners have been doing or trying to do for 15 years. 

	Are you for or against TM owners? You seem to be bravely standing up for their rights here, flying the flag for Patagonia (TM) and Amazon (TM), and their right to grab what they can? 

> 
>> if an area
>> extends between the territory of two or more governments, and all are
>> agreed that they want it blocked, the same rule applies.
> 
> [Milton L Mueller] In other words, governments get what they want because they want it. And you find that a "minor edge case"!!!? Don't see any bad precedent or bad principle established here? 

	I am saying the Bad Principle is established long ago. The Bad Principle you refer to is right there in 2.2.1.4 of the applicant guidebook. Governments get to block geographic terms for gTLDs they don't like.
	The right of governments to block use of geographical names that are within their territory was not established with this IO objection, but back when we approved the AG. I'm sorry if you didn't notice at the time and only just worked it out now. 

	Now, I do think the IO has extended that principle somewhat by accepting that allowing two or more governments acting together to block geographical names that fall within their joint territory. Extending the basic reasoning found within the AG to cover cases that don't fall within the letter of the guidebook is exactly what the IO should be doing, and we shouldn't complain about the IO decision just because we don't like the starting points for the decision that the community gave them.

> 
>> 	In other words, I think the .patagonia decision is a reasonable one
>> as far as consistency with existing rules - and while I think the
>> existing rules are flawed, I think that has been and gone.
>> 
>> [snip] But I don't have any enthusiasm for fighting a battle over
>> a minor edge case, when we've already lost the main issue.
>> 
> 
> [Milton L Mueller] My belief is that we should be doing exactly the opposite: we should be raising issues of principle and we have the knowledge and intellectual firepower in this Stakeholder Group to do so. Those things that all the other SGs cynically toss off as bargaining chips are precisely the things we should be challenging.

	I think we should be raising issues of principle on the things we can reasonably effect, not constantly trying to take another swing in an old battle we have already lost. 

> [Milton L Mueller] As indicated above it is NOT a minor edge case but the entering wedge of "governments get whatever they want regardless of law" and the attitude that "powerful interests can use ICANN to create new rights that have no basis in democratic process and regardless of individual rights." 

	It is an edge case, because if we managed to challenge and overturn the IO decision on the couple of (clearly geographic in the generally accepted use of the term) gTLDs that fall outside the strict rules of 2.2.1.4, governments would still retain very solid control over the majority of geographic terms that DO fall inside those rules, having already managed to give themselves some new rights quite effectively. We would not have challenged the principle, just created a loophole. 
	Cheers
		David