March 2013 - ALAC - lists.icann.org

Re: [ALAC] Closed generic statement [Suggested edits]
by Alan Greenberg March 1, 2013

March 1, 2013

Sala, do I understand correctly that what you were proposing is to take the statement as is, but add those two sections? Alan At 01/03/2013 07:29 AM, Salanieta T. Tamanikaiwaimaro wrote: >Dear ALAC, > >*The suggested changes is in BLUE.** * > >*Suggested Changes to the Draft Statement* > >In considering the matter of closed generic Top Level Domains (gTLDs), >ICANN is guided by The Affirmation of Commitments (AoC) between the United >States Department of Commerce (DOC) and ICANN clearly specify the promotion >of competition, consumer trust and consumer >choice.[1]<https://community.icann.org/pages/viewpage.action?pageId=40927847&focusedCo…>It >is also worth noting that there are several issues that surface with >closed gTLDs and these include but are not limited to the following: > > 1. Would the endorsement of Closed Generic Applications create a > situation or a series of situations whether now or in the future that will > restrict competition? > 2. Would the endorsement of Closed Generic Applications create a > situation where there is a dominant position within the market? > 3. Would the endorsement of the Closed Generic Applications create a > restraint in trade of a particular market? > 4. Would ICANN be immune from anti-trust liability? > >On 4th August 2012, a precedent was established in the *Manwin Licensing >International S.A.R.L., et al. v. ICM Registry, LLC, et al *where >the* *Honorable >Philip S. Gutierrez, United States District Judge ruled that antitrust >claims could be filed over .xxx. Under the *Sherman Act § 2, 15 U.S.C. § 2* >*[2]*<https://community.icann.org/pages/viewpage.action?pageId=40927847&focusedCo…>monopolizing >trade is a felony. Under the circumstances where this trade >involves foreign nations such as generic TLD applications that have been >made by countries outside the US, then *Sherman Act § 7 (Foreign Trade >Antitrust Improvements Act of 1982), 15 U.S.C. § 6a* will apply in relation >to conduct involving trade or commerce with foreign nations. > >On the whole, the ALAC does not believe that unrestricted closed generics >provide public benefit and would prefer that TLDs -- especially for strings >representing categories -- were not allocated in a way that would lock out >broad access to sub-domains. Some members of At-Large believe, on >principle, that all closed generics are harmful to the public good. Others >believe that, while not necessarily being beneficial to end users, closed >gTLDs should be allowed as simply being consistent with existing practise >for lower-level domains. > >Traditionally, the prohibition and control provisions laid out in >competition rules basically aims to prevent cartelization and >monopolization in markets for goods and services. Such developments in >markets inevitably harm consumer welfare which competition rules aim to >protect. On the same token, there are instances where some agreement may >limit competition to allow for social and economic benefits to pass to the >other. In order to ensure that such agreements with a net effect of >increasing competition can be made, an exemption regime is regulated in >competition law and agreements between undertakings in the same level >(horizontal) and different levels (vertical) of the market may be left >exempt from the prohibition of the competition rules under an exemption >system, provided they are not cartel agreements which are, by nature, out >of the scope of exemption. > >However, in developing this response to the Board's request, the ALAC found >the issue to be far more nuanced than the above hard positions would >suggest. There may be innovative business models that might allow a closed >TLD to be in the public interest. An example might be a registry that makes >2nd level names available at no cost to anyone, but retains legal control >over them. This is similar to the model used by Facebook and many blog >hosting sites. Allowance should be made for applicants interested in >widespread sub-domain distribution that do not require domain-name sales as >a source of revenue, or for other forms of sub-domain allocation. > >Whether a generic-word string is used with its generic meaning or in some >other context may also be relevant. The fictitious but famous computer >manufacturer, Orange Computers Inc. using the TLD ".orange" might be >acceptable, while the same string used as a closed TLD by a California >Orange Growers Cooperative (and not allowing access to orange producers >from Florida or Mediterranean and South American countries) might well be >considered unacceptable. > >Allowing this nuanced approach would likely involve a case by case review >of how a TLD will be used and how its sub-domains will be allocated. >Moreover, it would require a contractual commitment to not change that >model once the TLD is delegated. > >In summary, the ALAC believes that completely uncontrolled use of generic >words as TLDs is not something that ICANN should be supporting. However, >some instances of generic word TLDs could be both reasonable and have very >strong benefits of just the sort that ICANN was seeking when the TLD space >was opened. Such uses should not be excluded *a*s long as it can be >established that they serve the public interest. > >------------------------------ > >[1]<https://community.icann.org/pages/viewpage.action?pageId=40927847&focusedCo…>Clauses >3 and 9.3 of the Affirmation of Commitment between the United >States Department of Commerce and the Internet Corporation for Assigned >Names and Numbers > > > > > >Kind Regards, >Sala >_______________________________________________ >ALAC mailing list >ALAC(a)atlarge-lists.icann.org >https://atlarge-lists.icann.org/mailman/listinfo/alac > >At-Large Online: http://www.atlarge.icann.org >ALAC Working Wiki: >https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(AL…

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Re: [ALAC] Closed generic statement
by Alan Greenberg March 1, 2013

March 1, 2013

Evan has kindly pointed out that in my last sentence before my signature, it should have been "... ADDED in the last sentence." Alan (trying to extract his foot from his mouth, and hoping to teach his fingers how to select the correct keys) At 28/02/2013 01:23 PM, Alan Greenberg wrote: >Evan and I have agreed on three small changes that have been >suggested. They are shown on the wiki at >https://community.icann.org/x/Z4JwAg. The resultant version is: >==== >On the whole, the ALAC does not believe that unlimited closed >generics provide public benefit and would prefer that TLDs -- >especially for strings representing categories -- were not allocated >in a way that would lock out broad access to sub-domains. Some >members of At-Large believe, on principle, that all closed generics >are harmful to the public good. Others believe that, while not >necessarily being beneficial to end users, closed gTLDs should be >allowed as simply being consistent with existing practise for >lower-level domains. > >However, in developing this response to the Board's request, the ALAC >found the issue to be far more nuanced than the above hard positions >would suggest. There may be innovative business models that might >allow a closed TLD to be in the public interest. An example might be >a registry that makes 2nd level names available at no cost to anyone, >but retains legal control over them. This is similar to the model >used by Facebook and many blog hosting sites. Allowance should be >made for applicants interested in widespread sub-domain distribution >that do not require domain-name sales as a source of revenue, or for >other forms of sub-domain allocation. > >Whether a generic-word string is used with its generic meaning or in >some other context may also be relevant. The fictitious but famous >computer manufacturer, Orange Computers Inc. using the TLD ".orange" >might be acceptable, while the same string used as a closed TLD by a >California Orange Growers Cooperative (and not allowing access to >orange producers from Florida or Mediterranean and South American >countries) might well be considered unacceptable. > >Allowing this nuanced approach would likely involve a case by case >review of how a TLD will be used and how its sub-domains will be >allocated. Moreover, it would require a contractual commitment to not >change that model once the TLD is delegated. > >In summary, the ALAC believes that completely uncontrolled use of >generic words as TLDs is not something that ICANN should be >supporting. However, some instances of generic word TLDs could be >both reasonable and have very strong benefits of just the sort that >ICANN was seeking when the TLD space was opened. Such uses should not >be excluded as long as it can be established that they serve the >public interest. >==== >The changes were: >- "unlimited" added in the first sentence. >- "We can foresee" changed to "There may be" in the 2nd sentence of >paragraph 2. >- "as long as it can be established that they serve the public >interest" assed in the last sentence. > >Alan > >At 28/02/2013 01:00 AM, Alan Greenberg wrote: > >At Tuesday's ALAC meeting, Evan presented a statement on closed > >generic word domains that gave the two opposing positions that had > >been expressed by various ALAC and At-Large people. I suggested that > >the ALAC not vote for or against that statement, but each member say > >with side they supported. As the discussion evolved, there was some > >discomfort about simply giving a tally of the two sides, and > >moreover, that it ignored a third option that allowed some parts of > >both sides to be supported. I volunteered to work with Evan to > >create a new version. > > > >I did create such a 3rd "in between" option. As we were reviewing > >it, and partially guided by a message from Roberto Gaetano, Evan > >suggested that this in-between option, with some enhancements, could > >be a single statement that most or all of the ALAC could support. > > > >What you see here is an evolution of that statement. Thanks to > >Olivier and Rinalia who identified a number of problems with > earlier versions. > > > >The comment period closes on March 7th, so a vote will need to be > >completed by March 6th. I believe that Olivier would like to start a > >vote relatively quickly, so if you have any problems with what you > >see here, please speak up quickly. > > > >This new statement is also posted on the wiki - > >https://community.icann.org/x/Z4JwAg. > > > >Alan > > > >================================= > > > >On the whole, the ALAC does not believe that closed generics provide > >public benefit and would prefer that TLDs -- especially for strings > >representing categories -- were not allocated in a way that would > >lock out broad access to sub-domains. Some members of At-Large > >believe, on principle, that all closed generics are harmful to the > >public good. Others believe that, while not necessarily being > >beneficial to end users, closed gTLDs should be allowed as simply > >being consistent with existing practise for lower-level domains. > > > >However, in developing this response to the Board's request, the > >ALAC found the issue to be far more nuanced than the above hard > >positions would suggest. We can foresee innovative business models > >that might allow a closed TLD to be in the public interest. An > >example might be a registry that makes 2nd level names available at > >no cost to anyone, but retains legal control over them. This is > >similar to the model used by Facebook and many blog hosting sites. > >Allowance should be made for applicants interested in widespread > >sub-domain distribution that do not require domain-name sales as a > >source of revenue, or for other forms of sub-domain allocation. > > > >Whether a generic-word string is used with its generic meaning or in > >some other context may also be relevant. The fictitious but famous > >computer manufacturer, Orange Computers Inc. using the TLD ".orange" > >might be acceptable, while the same string used as a closed TLD by a > >California Orange Growers Cooperative (and not allowing access to > >orange producers from Florida or Mediterranean and South American > >countries) might well be considered unacceptable. > > > >Allowing this nuanced approach would likely involve a case by case > >review of how a TLD will be used and how its sub-domains will be > >allocated. Moreover, it would require a contractual commitment to > >not change that model once the TLD is delegated. > > > >In summary, the ALAC believes that completely uncontrolled use of > >generic words as TLDs is not something that ICANN should be > >supporting. However, some instances of generic word TLDs could be > >both reasonable and have very strong benefits of just the sort that > >ICANN was seeking when the TLD space was opened. Such uses should > >not be excluded. > >_______________________________________________ >ALAC mailing list >ALAC(a)atlarge-lists.icann.org >https://atlarge-lists.icann.org/mailman/listinfo/alac > >At-Large Online: http://www.atlarge.icann.org >ALAC Working Wiki: >https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(AL…

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FINAL: Closed generic statement
by Alan Greenberg March 1, 2013

March 1, 2013

This final version of the statement is also posted on the wiki - https://community.icann.org/x/Z4JwAg. The only change from earlier versions is that, based on input, the word "unlimited" was changed to "unrestricted" in the first sentence. The full text is: >On the whole, the ALAC does not believe that unrestricted closed >generics provide public benefit and would prefer that TLDs -- >especially for strings representing categories -- were not allocated >in a way that would lock out broad access to sub-domains. Some >members of At-Large believe, on principle, that all closed generics >are harmful to the public good. Others believe that, while not >necessarily being beneficial to end users, closed gTLDs should be >allowed as simply being consistent with existing practise for >lower-level domains. > >However, in developing this response to the Board's request, the >ALAC found the issue to be far more nuanced than the above hard >positions would suggest. There may be innovative business models >that might allow a closed TLD to be in the public interest. An >example might be a registry that makes 2nd level names available at >no cost to anyone, but retains legal control over them. This is >similar to the model used by Facebook and many blog hosting sites. >Allowance should be made for applicants interested in widespread >sub-domain distribution that do not require domain-name sales as a >source of revenue, or for other forms of sub-domain allocation. > >Whether a generic-word string is used with its generic meaning or in >some other context may also be relevant. The fictitious but famous >computer manufacturer, Orange Computers Inc. using the TLD ".orange" >might be acceptable, while the same string used as a closed TLD by a >California Orange Growers Cooperative (and not allowing access to >orange producers from Florida or Mediterranean and South American >countries) might well be considered unacceptable. > >Allowing this nuanced approach would likely involve a case by case >review of how a TLD will be used and how its sub-domains will be >allocated. Moreover, it would require a contractual commitment to >not change that model once the TLD is delegated. > >In summary, the ALAC believes that completely uncontrolled use of >generic words as TLDs is not something that ICANN should be >supporting. However, some instances of generic word TLDs could be >both reasonable and have very strong benefits of just the sort that >ICANN was seeking when the TLD space was opened. Such uses should >not be excluded as long as it can be established that they serve the >public interest. Thanks to all who contributed to this during the last two days, and particularly to Evan who did the bulk of the work and continued today even though he was in an all-day meeting. Alan

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