Today 'The Hindu' carried its own editorial on this issue, simply titled 'No, ICANN'.... parminder http://www.thehindu.com/opinion/editorial/no-icann/article3932668.ece On Tuesday 25 September 2012 11:12 AM, Evan Leibovitch wrote:

On 25 September 2012 01:27, parminder <parminder@itforchange.net> wrote:

...

http://www.thehindu.com/opinion/op-ed/beauty-lies-in-the-domain-of-the-highe...

This would have been an extremely useful intervention ... three years ago.

In its current form it's merely an act of hindsight, and as such its value is severely diminished.

- Evan _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

Hi, In this case the At-Large New gTLD WG, has as one of its chartered work items, the task of reviewing issues with the roll out of new gTLDs. The issues are brought to the group, discussed and if there is support in the group for taking some form of action, a recommendation its made to the ALAC. Alac then decides whether The issue of private generic TLDs its already on the list of issues to be discussed: https://community.icann.org/m/view-page.action?spaceKey=atlarge&title=Rollou... The discussion is just starting and I cannot predict at this point what might come of it. parminder <parminder@itforchange.net> wrote:

Dear Dev

IT for Change thanks the gTLD Review Group for giving consideration to its inputs.

I did not quite understand that is the remit of this other group headed

by Avri.... What kind of output/ recs can it produce? Is commenting on the overall policy within its remit? Thanks for providing these clarifications. parminder

On Tuesday 25 September 2012 09:33 AM, Dev Anand Teelucksingh wrote:

...

Dear All,

The gTLD Review Group (gTLD RG ; https://community.icann.org/x/u7-bAQ) received a comment from IT for Change, India on September 11 2012.

IT for Change, India's comment was not directed at a specific application or applicant but was posted to the At-Large new gTLD Applications Dashboard at

https://community.icann.org/display/newgtldrg/multiple-strings-by-IT-for-cha...

...

for comment.

The comment by IT for Change, India is that allowing generic words as private TLDs (i.e with single registrant, with no requirement to make second level domain names available to the open market) is against the public interest.

Because such a concept is outside the scope of any particular applicant or application, the gTLD RG will not be submitting a comment for the ALAC for possible submission to ICANN's new gTLD comment forum before the close of the Application Comment Period on September 26 2012.

However, given the concept raised regarding generic words becoming private TLDs has policy implications that impacts individual Internet end users, the gTLD RG recommends that the issues raised be referred to the At-Large new gTLD Working Group (new gTLD WG ; https://community.icann.org/x/8Yoi) for discussion and possible policy recommendations. We note that the issues referred to the new gTLD WG from past comments received by the gTLD RG (https://community.icann.org/display/newgtldrg/.book+_OG) have been added to the new gTLD WG's agenda.

Kind Regards,

Dev Anand Teelucksingh Chair, gTLD Review Group _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

Avri Doria

Hi, Known: The ALAC can give advice to the ICANN Board on anything related to ICANN. The ANgWG can recommend to ALAC anything that is within our charter. Roll out issues for the new gTLD program are in our charter. Probable: Since the charter includes roll out issues and there seems to be agreement that this issue is in scope as a roll out issue, we can make a recommendation on it to ALAC. Unknowns: What recommendation the group might make, if any. Whether the ALAC accepts our recommendation. What the Board does with any advice the ALAC might give based on our recommendation, if any. Dev's group has a tighter mandate since they are restricted to issues that are either: - Limited Public Interest, the euphemism used for Morality and Public Order - Harmful to a specific community Hope that answers. parminder <parminder@itforchange.net> wrote:

Avri

Thanks for the information.

Can you specifically tell me if your WG can or cannot give advice to ICANN (through ALAC of otherwise) against giving private tld exceptions, especially when generic words are being applied for as TLDs? I understand, as you say, that whether it actually gives any such rec is subject to the outcomes of the discussion, but you would know whether if it is at all within the mandate of your WG to do so. For instance, Dev's WG on gTLD reviews did not decide on the merit of ITfC's inputs. It did

not find it to be something that the Group can even consider any action

about. Can you group consider any such action in form of recs etc. This

is my question.

Thanks, parminder

On Tuesday 25 September 2012 04:21 PM, Avri Doria wrote:

...

Hi,

In this case the At-Large New gTLD WG, has as one of its chartered work items, the task of reviewing issues with the roll out of new gTLDs. The issues are brought to the group, discussed and if there is

...

support in the group for taking some form of action, a recommendation

...

its made to the ALAC. Alac then decides whether

The issue of private generic TLDs its already on the list of issues to be discussed:

https://community.icann.org/m/view-page.action?spaceKey=atlarge&title=Rollou...

...

The discussion is just starting and I cannot predict at this point what might come of it.

parminder <parminder@itforchange.net> wrote:

Dear Dev

IT for Change thanks the gTLD Review Group for giving

consideration to

...

its inputs.

I did not quite understand that is the remit of this other group

headed

...

by Avri.... What kind of output/ recs can it produce? Is

commenting on

...

the overall policy within its remit? Thanks for providing these clarifications. parminder

On Tuesday 25 September 2012 09:33 AM, Dev Anand Teelucksingh

wrote:

...

Dear All, The gTLD Review Group (gTLD RG ; https://community.icann.org/x/u7-bAQ) received a comment from IT for Change, India on September 11 2012. IT for Change, India's comment was not directed at a specific application or ap! plicant but was posted to the At-Large new gTLD Applications Dashboard at

https://community.icann.org/display/newgtldrg/multiple-strings-by-IT-for-cha...

...

for comment. The comment by IT for Change, India is that allowing generic words as private TLDs (i.e with single registrant, with no requirement to make second level domain names available to the open market) is against the public interest. Because such a concept is outside the scope of any particular applicant or application, the gTLD RG will not be submitting a comment for the ALAC for possible submission to ICANN's new gTLD comment forum before the close of the Application Comment Period on September 26 2012. However, given the concept raised regarding generic words becoming private TLDs has policy implications that impacts individual Internet! end users, the gTLD RG recommends that the issues raised be referred to the At-Large new gTLD Working Group

(new

...

gTLD WG ; https://community.icann.org/x/8Yoi) for discussion and possible policy recommendations. We note that the issues referred to the new gTLD WG from past comments received by

the

...

gTLD RG (https://community.icann.org/display/newgtldrg/.book+_OG)

have

...

been added to the new gTLD WG's agenda. Kind Regards, Dev Anand Teelucksingh Chair, gTLD Review Group

------------------------------------------------------------------------

...

At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org

------------------------------------------------------------------------

...

At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site:http://atlarge.icann.org

Avri Doria

Avri Doria

Thanks for your response, Avri. Yes, it makes it relatively clearer. You say that it is within the scope of the WG to give advice on the private gTLD issue. You have pointed to me to the page where the listed issues for the WG can be seen. Here I see that on the issue of private gTLDs the token holder (not exactly sure what it means though) is Evan Leibovitch. However, in an email on 25th Sept, on the newspaper article that I did on private gtlds, Evan had the following to say.... " This would have been an extremely useful intervention ... three years ago. In its current form it's merely an act of hindsight, and as such its value is severely diminished." In response to my input to the Dev's WG, which he was kind enough to post on the ICANN website, Evan posted a response which claims that "While I share the concerns and have expressed many myself, the ability to affect gTLD expansion policy in this direction is also long passed." If the token holder of the issue of private tlds so firmly believes that this issue is not something that anything can be done about at present, I wonder what is the discussion about. Also your assurance that the WG can indeed yet advice ICANN on this issue seems contrary to Evan's claim. So, well, my confusion has not entirely cleared. Parminder On Tuesday 25 September 2012 06:28 PM, Avri Doria wrote:

Hi,

Known: The ALAC can give advice to the ICANN Board on anything related to ICANN. The ANgWG can recommend to ALAC anything that is within our charter. Roll out issues for the new gTLD program are in our charter.

Probable: Since the charter includes roll out issues and there seems to be agreement that this issue is in scope as a roll out issue, we can make a recommendation on it to ALAC.

Unknowns: What recommendation the group might make, if any. Whether the ALAC accepts our recommendation. What the Board does with any advice the ALAC might give based on our recommendation, if any.

Dev's group has a tighter mandate since they are restricted to issues that are either: - Limited Public Interest, the euphemism used for Morality and Public Order - Harmful to a specific community

Hope that answers.

parminder <parminder@itforchange.net> wrote:

Avri

Thanks for the information.

Can you specifically tell me if your WG can or cannot give advice to ICANN (through ALAC of otherwise) against giving private tld exceptions, especially when generic words are being applied for as TLDs? I understand, as you say, that whether it actually gives any such rec is subject to the outcomes of the discussion, but you would know whether if it is at all within the mandate of your WG to do so. For instance, Dev's WG on gTLD reviews did not decide on the merit of ITfC's inputs. It did not find it to be something that the Group can even consider any action about. Can you group consider any such action in form of recs etc. This is my question.

Thanks, parminder

On Tuesday 25 September 2012 04:21 PM, Avri Doria wrote:

...

Hi,

In this case the At-Large New gTLD WG, has as one of its chartered work items, the task of reviewing issues with the roll out of new gTLDs. The issues are brought to the group, discussed and if there is support in the group for taking some form of action, a recommendation its made to the ALAC. Alac then decides whether

The issue of private generic TLDs its already on the list of issues to be discussed: https://community.icann.org/m/view-page.action?spaceKey=atlarge&title=Rollou...

The discussion is just starting and I cannot predict at this point what might come of it.

parminder <parminder@itforchange.net> wrote:

Dear Dev

IT for Change thanks the gTLD Review Group for giving consideration to its inputs.

I did not quite understand that is the remit of this other group headed by Avri.... What kind of output/ recs can it produce? Is commenting on the overall policy within its remit? Thanks for providing these clarifications. parminder

On Tuesday 25 September 2012 09:33 AM, Dev Anand Teelucksingh wrote:

Dear All, The gTLD Review Group (gTLD RG ; https://community.icann.org/x/u7-bAQ) received a comment from IT for Change, India on September 11 2012. IT for Change, India's comment was not directed at a specific application or ap! plicant but was posted to the At-Large new gTLD Applications Dashboard at https://community.icann.org/display/newgtldrg/multiple-strings-by-IT-for-cha... for comment. The comment by IT for Change, India is that allowing generic words as private TLDs (i.e with single registrant, with no requirement to make second level domain names available to the open market) is against the public interest. Because such a concept is outside the scope of any particular applicant or application, the gTLD RG will not be submitting a comment for the ALAC for possible submission to ICANN's new gTLD comment forum before the close of the Application Comment Period on September 26 2012. However, given the concept raised regarding generic words becoming private TLDs has policy implications that impacts individual Internet! end users, the gTLD RG recommends that the issues raised be referred to the At-Large new gTLD Working Group (new gTLD WG ; https://community.icann.org/x/8Yoi) for discussion and possible policy recommendations. We note that the issues referred to the new gTLD WG from past comments received by the gTLD RG (https://community.icann.org/display/newgtldrg/.book+_OG) have been added to the new gTLD WG's agenda. Kind Regards, Dev Anand Teelucksingh Chair, gTLD Review Group ------------------------------------------------------------------------ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org

------------------------------------------------------------------------

At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site:http://atlarge.icann.org

Avri Doria

Avri Doria

hi, the token holder was used to designate the person who thought the issue was important enough to be brought up and included on the list. the expectation, stated repeatedly in the group, was that others interested in this topic would aggregate around this person and actually get a recommendation drafted for the group to consider and work on. there was also component it that while I would track the work and build tables that referenced it, I was not going to be the one as chair of the group to actually work each of these issues. I would put them on every meeting's agenda and see if anything had been done. and if after a long time nothing had been done, i would ask the group whether they thought the topic should be dropped from the list of issues worth considering and working on. if the term is so odious or confusing please suggest another. on the other hand, you could just accept the term and either do something or say you don't want to hold the token. cheers Evan Leibovitch <evan@telly.org> wrote:

On 27 September 2012 11:57, parminder <parminder@itforchange.net> wrote:

...

You say that it is within the scope of the WG to give advice on the private gTLD issue. You have pointed to me to the page where the listed issues for the WG can be seen. Here I see that on the issue of private gTLDs the token holder (not exactly sure what it means though) is Evan Leibovitch.

Actually, I'm not sure what the term "token holder" means either. I know I have had an interest in the issue, done significant research, and participated in many relevant ICANN working groups to date. But, then, so have many others here.

...

However, in an email on 25th Sept, on the newspaper article that I did on private gtlds, Evan had the following to say....

" This would have been an extremely useful intervention ... three years ago. In its current form it's merely an act of hindsight, and as such its value is severely diminished."

In response to my input to the Dev's WG, which he was kind enough to post on the ICANN website, Evan posted a response which claims that

"While I share the concerns and have expressed many myself, the ability to affect gTLD expansion policy in this direction is also long passed."

Indeed, and I stand by that.

...

If the token holder of the issue of private tlds so firmly believes that this issue is not something that anything can be done about at present, I wonder what is the discussion about.

The ALAC has the bylaw-mandated remit to advise ICANN on any component of its operation, at any time. And its gTLD working group has the ability to advance any issue to the wider ALAC for consideration as formal Advice to the ICANN Board.

In the current application process the ALAC has been given a further capabilty to launch specific objections against specific applications for one of two very specific reasons:

1. The string being applied for is overly offensive of obscene 2. An applicant for a community TLD is not properly representing the claimed community

Your objections do not fall under one of the above categories, so they are beyond ALAC's capacity to object using its explicitly granted authority in this regard. As such, it becomes just another general policy issue, and I am suggesting that this particular issue is long past its due date.

Your core issue -- the private ownership of public words -- was long ago settled by consensus, a consensus in which At-Large participated (and with which some of us -- myself included -- had severe reservations). The embodiment of that consensus is the gTLD Applicant Guidebook, the subject of years of debate and side-debates that is now used as a contractual document. ALAC has the formal freedom to demand the issue be re-opened -- against the desires of every other stakeholder and our own participation in the consensus -- but I believe that to so do would be utterly pointless and ill-advised.

So let's be clear. There was no ALAC "discussion" on the issue before your (and some domain-industry) comments were brought to our attention. The core issue you advanced -- whether or not it had merit -- is now moot. Companies have filed legitimate good-faith applications, and given ICANN monetary deposits, under published guidelines that allow private ownership of TLD strings. So even should I agree with you on your core issue, advancing it at this time (which we are *technically* entitled to do) would either get us ignored or get ICANN sued.

Had you raised them when the applicant guidebook was under intense debate, you may have indeed sparked very useful debate, and perhaps affected opinions and the ALAC's attitudes at a time when we could have had influence on the final expansion policy. But your voice and this PoV was non-existent then. In fact, the real time to make such a case was even longer ago, when precedents were set by the private allocation of TLDs for common words such as .name and .museum.

Lest there be any doubt, I have long held the position -- that most in At-Large can verify -- that the gTLD expansion process as a whole is (with a very few exceptions) an utter waste of resources and, on the balance, harmful to the public interest. As such I have great understanding and and empathy for your position. But I (and other expansion cynics) could have used your support long ago, when the debate might have produced actual policy results.

Right now, though, aggressively stating this case simply comes across as bitter hindsight. And even that hindsight may be misplaced, IMO -- but that's a different topic for, perhaps, a different discussion. Suffice to say for now that it's interesting that the only comments I have seen opposing private ownership of public strings -- besides yours -- come from the domain speculation industry.

Just my opinions.

- Evan

Avri Doria

Most would know that I have already declared on these lists an abiding interest in maintaining a strict observation of the Review Group's remit. Consequently, I am on record as rejecting - and urging the Review Group's rejection - oversight of this issue. I am also on record for recommending a punt to the relevant At-Large WG. This happens to be the gTLD WG, largely determined from its charter. To the extent that the Chair accepts the materiality of the issue, I am prepared to vigourously debate the matter, if only for the intellectual jousting. All this aside and knowing where we are today, I am also on record for describing the central idea at issue - ably outlined by Evan - and its likely resolution as 'attempting to shut the gate when the horse has already bolted'. Kind regards, - Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* ============================= On Thu, Sep 27, 2012 at 12:52 PM, Avri Doria <avri@acm.org> wrote:

hi,

the token holder was used to designate the person who thought the issue was important enough to be brought up and included on the list.

the expectation, stated repeatedly in the group, was that others interested in this topic would aggregate around this person and actually get a recommendation drafted for the group to consider and work on.

there was also component it that while I would track the work and build tables that referenced it, I was not going to be the one as chair of the group to actually work each of these issues. I would put them on every meeting's agenda and see if anything had been done. and if after a long time nothing had been done, i would ask the group whether they thought the topic should be dropped from the list of issues worth considering and working on.

if the term is so odious or confusing please suggest another.

on the other hand, you could just accept the term and either do something or say you don't want to hold the token.

cheers

Evan Leibovitch <evan@telly.org> wrote:

...

On 27 September 2012 11:57, parminder <parminder@itforchange.net> wrote:

...

You say that it is within the scope of the WG to give advice on the private gTLD issue. You have pointed to me to the page where the listed issues for the WG can be seen. Here I see that on the issue of private gTLDs the token holder (not exactly sure what it means though) is Evan Leibovitch.

Actually, I'm not sure what the term "token holder" means either. I know I have had an interest in the issue, done significant research, and participated in many relevant ICANN working groups to date. But, then, so have many others here.

...

However, in an email on 25th Sept, on the newspaper article that I did on private gtlds, Evan had the following to say....

" This would have been an extremely useful intervention ... three years ago. In its current form it's merely an act of hindsight, and as such its value is severely diminished."

In response to my input to the Dev's WG, which he was kind enough to post on the ICANN website, Evan posted a response which claims that

"While I share the concerns and have expressed many myself, the ability to affect gTLD expansion policy in this direction is also long passed."

Indeed, and I stand by that.

...

If the token holder of the issue of private tlds so firmly believes that this issue is not something that anything can be done about at present, I wonder what is the discussion about.

The ALAC has the bylaw-mandated remit to advise ICANN on any component of its operation, at any time. And its gTLD working group has the ability to advance any issue to the wider ALAC for consideration as formal Advice to the ICANN Board.

In the current application process the ALAC has been given a further capabilty to launch specific objections against specific applications for one of two very specific reasons:

1. The string being applied for is overly offensive of obscene 2. An applicant for a community TLD is not properly representing the claimed community

Your objections do not fall under one of the above categories, so they are beyond ALAC's capacity to object using its explicitly granted authority in this regard. As such, it becomes just another general policy issue, and I am suggesting that this particular issue is long past its due date.

Your core issue -- the private ownership of public words -- was long ago settled by consensus, a consensus in which At-Large participated (and with which some of us -- myself included -- had severe reservations). The embodiment of that consensus is the gTLD Applicant Guidebook, the subject of years of debate and side-debates that is now used as a contractual document. ALAC has the formal freedom to demand the issue be re-opened -- against the desires of every other stakeholder and our own participation in the consensus -- but I believe that to so do would be utterly pointless and ill-advised.

So let's be clear. There was no ALAC "discussion" on the issue before your (and some domain-industry) comments were brought to our attention. The core issue you advanced -- whether or not it had merit -- is now moot. Companies have filed legitimate good-faith applications, and given ICANN monetary deposits, under published guidelines that allow private ownership of TLD strings. So even should I agree with you on your core issue, advancing it at this time (which we are *technically* entitled to do) would either get us ignored or get ICANN sued.

Had you raised them when the applicant guidebook was under intense debate, you may have indeed sparked very useful debate, and perhaps affected opinions and the ALAC's attitudes at a time when we could have had influence on the final expansion policy. But your voice and this PoV was non-existent then. In fact, the real time to make such a case was even longer ago, when precedents were set by the private allocation of TLDs for common words such as .name and .museum.

Lest there be any doubt, I have long held the position -- that most in At-Large can verify -- that the gTLD expansion process as a whole is (with a very few exceptions) an utter waste of resources and, on the balance, harmful to the public interest. As such I have great understanding and and empathy for your position. But I (and other expansion cynics) could have used your support long ago, when the debate might have produced actual policy results.

Right now, though, aggressively stating this case simply comes across as bitter hindsight. And even that hindsight may be misplaced, IMO -- but that's a different topic for, perhaps, a different discussion. Suffice to say for now that it's interesting that the only comments I have seen opposing private ownership of public strings -- besides yours -- come from the domain speculation industry.

Just my opinions.

- Evan

Avri Doria _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

Without commenting on the merits of "private gTLDs", the "exemption" being discussed is not in relation to who may register 2nd level names in the TLD. It is addressing whether the Registry needs to use ICANN accredited Registars to effect registrations. Essentially, it is saying you must use an ICANN accredited Registrar unless all registrations are solely for the use of the Registry or its affiliates. Alan At 11/10/2012 10:28 AM, parminder wrote:

Dear All,

I am not sure whether a gTLD review group does exist at present, and proposes to do something, or not. And if indeed it does propose to continue, what kinds of things it might look into. Probably Avri can further clarify on this point. Although she did clarify a few days back, there are new arguments on the list against continued examination of this issue. Such a clarification will be useful for those who propose to keep pursing the subject of 'private gTLDs' as something very detrimental to public interest.

I hear voices here claiming that the time for fighting for this cause is over now. Some of those who say so otherwise seem to have sympathy for the proposition that 'private gTLDs' will be detrimental to public interest. There appears to be an overly greater desire to safeguard a process (ICANN ?) than address the substantive issue on its merits, especially when, in my view, the implications of the issue at stake are huge. In private conversations I find people, even among those centrally connected to ICANN, having varying degree of reservations about 'private gTLDs'. As I read postings on this list I see a similar sentiment. Outside the ICANN circles of course I find almost universal dismay that such a thing can be done. I wonder, then, what kind of governance process can still be going ahead with possibly allowing 'private gTLDs' and how so many of the civil society participants in ICANN processes prefer to stand on ceremony rather than agree to have a thorough debate on and (re)consideration of the issue. I appeal to the ALAC community to look into this issue in the right earnest; failing which, it is my humble opinion, they would be dis-serving their appointed role.

I also read that there has been a long process over many years to finalise the new gTLD policy, and everything was looked into with great care and decided by consensus. That is a bit surprising to me, as I did indicate in the newspaper article I wrote on this issue. So, did ALAC largely agree with a policy of allowing 'private gTLDs'? What kind of questions were raised by civil society members, what arguments were made, and what responses were received that made the proposal acceptable? ALAC must answer these questions, specifically those who were closely associated with the process. Also because these questions will be asked, and asked rather keenly, as people outside ICANN circles realise what has happened.

The above is my general statement on the subject. Notwithstanding, I also have a practical way forward to suggest for the gTLD review group, which as Avri says, mostly is to deal with 'roll-out issues'.

I must admit here that I haven't gone through the applicant guidelines and other concerned documents in detail. Those who know more about these documents may please help me, but my understanding is that the default policy is to have open registrant model, whereby all registrants have to be serviced by any gTLD owning registry on a non-discriminatory basis. Although my understanding can be wrong, and please do correct me if it is, I think 'private gTLDs' are to be allowed only under an exception to the general rule clause.

"....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."

An exception to a rule is something about which the complete burden of proof lies on whoever is seeking the exception. While requirements (i) and (ii) above are technical and can be met by applicants for private gTLDs, requirement (iii) in my view is rather stringent, and we should focus on it. BTW, using this route of opposing private gTLDs, of showing how this stringent requirement of the exception clause is not met by any applicant of private gTLDs, who seek to use generic names, to which they have no IPRs whatsoever, does make it a 'roll out' issue, placing it within the remit of the gTLD review group.

I am completely unable to see how applicants for private gTLDs employing generic names will be able to demonstrate to ICANN's 'reasonable satisfaction' that disallowing such generic names as private gTLDs 'is not necessary to protect the public interest'.

It is very important to note that, since an exception to a laid out rule is being sought, the entire burden of proof is on the applicant to actually demonstrate how public interest may not be adversely affected, rather than on ICANN to show how it may be. In default, if no determination can be made either way, of the relationship that granting of such generic name private gTLDs may have with public interest, private gTLDs will/ should obviously be disallowed. This flows from a simple reasoning that since the rule, which would obviously have been made to promote public interest, is that single registry or private gTLDs will not be allowed, that public interest presumption stands unless compelling evidence to the contrary is provided. In this regard, the following two facts/ issues are relevant;

1) Again I haven't read most generic name private gTLD applications but from what I have read I do not see even any kind of serious attempt being made to 'demonstrate' that granting such gTLDs does not have an adverse impact on public interest (the presumption, from the formulation of the rule, being that it does have an adverse impact). In this regard, it is for the applicant to capture the scenarios or potential criticisms of adverse impact and show that they do not hold. Any application that does not devote considerable space to specifically and sufficiently arguing how public interest is not impacted adversely (especially pertaining to pubic interest issues that underly the rule for open/multiple registrars, and those regarding taking up exclusive use of words to which they have no IPR claims and thus unfairly exclude other who may also want to use the particular gTLD) , should simply be rejected out of hand as not having met the requirement (iii) of the exception clause. My impression is that most generic name private gTLDs can simply be rejected on this ground.

2) I understand that, wherever and to the extent possible, ICANN tries to rescue itself from making decisions around specific public interest related issues, a constraint that it feel in being primarily a technical coordination body. Under the circumstances, ICANN should desist from entering into specific decision making with regard to specific circumstances of specific generic word gTLD applications, about certifying that as per 'its reasonable satisfaction' the default open or public gTLD rule is not necessary to apply in order 'to protect the public interest'. Trying to do so will mire ICANN into taking specific stances on issues of deep and variegated public policy implications for which ICANN is neither suited nor, normally, very inclined towards addressing.

The public interest issue to determine here is rather simple. ICANN did the current new gTLDs program presumably because it thought that there was public demand for domain names under different gTLD suffixes. This is the reason that it would now allow a number of new open gTLDs employing so many different names/ words. I wonder what kind of argument can 'reasonably satisfy' ICANN that, while there is expected to be public demand for these open gTLD name domains, there isnt public demand for .book. .beauty and all other names for which private gTLD applications are being made. In allowing such generic name private gTLDs, ICANN of course will be preventing most people from freely obtaining domain names under these gTLD suffixes. This simple straightforward fact does constitute harm to public interest (unless it can be counteracted by claim of a greater harm). I will very much like to hear arguments of applicants for private gTLDs, or anyone else here, how this is not a harm to public interest, when new gTLDs being made available openly generally is considered to be in public interest.

A trademark authority may give a ruling allowing some kinds of privileged/ exclusive uses of a word if an overriding public interest, pertaining say to improved consumer recognition of the source of a product or service, can be made out w/ith regard to specific circumstances/, the requirements of such proof being rather stringent. Is ICANN going to get into such specific considerations of who is going to use what words as private gTLD, with what justification and what effect? It will have to, since the exception clause, which alone can enable a private gTLDs, specifically requires the reaching of 'reasonable satisfaction' of ICANN in this regard. Apart from the fact that I can't see any applicants for generic word private gTLDs being able to make a good enough or even a plausible case, I am also not sure if ICANN is willing, or has the mandate, to go into such deep case-to-case public policy considerations, which concern larger economic, social and cultural implications.

I put the above points for consideration of the gTLD review group, that is if it does intend to continue looking into new gTLDs related issues. I would also like to know what kind of process does such a group follow, and whether there is certain topicality/ urgency to the issue vis a vis the Toronto meeting. Is this issue likely to come up at the meeting, and if so in what form.

Thanks, and apologies for a long submission.

parminder

On Friday 28 September 2012 12:29 AM, Carlton Samuels wrote:

...

Most would know that I have already declared on these lists an abiding interest in maintaining a strict observation of the Review Group's remit. Consequently, I am on record as rejecting - and urging the Review Group's rejection - oversight of this issue.

I am also on record for recommending a punt to the relevant At-Large WG. This happens to be the gTLD WG, largely determined from its charter. To the extent that the Chair accepts the materiality of the issue, I am prepared to vigourously debate the matter, if only for the intellectual jousting.

All this aside and knowing where we are today, I am also on record for describing the central idea at issue - ably outlined by Evan - and its likely resolution as 'attempting to shut the gate when the horse has already bolted'.

Kind regards, - Carlton

============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================

On Thu, Sep 27, 2012 at 12:52 PM, Avri Doria<avri@acm.org> wrote:

...

hi,

the token holder was used to designate the person who thought the issue was important enough to be brought up and included on the list.

the expectation, stated repeatedly in the group, was that others interested in this topic would aggregate around this person and actually get a recommendation drafted for the group to consider and work on.

there was also component it that while I would track the work and build tables that referenced it, I was not going to be the one as chair of the group to actually work each of these issues. I would put them on every meeting's agenda and see if anything had been done. and if after a long time nothing had been done, i would ask the group whether they thought the topic should be dropped from the list of issues worth considering and working on.

if the term is so odious or confusing please suggest another.

on the other hand, you could just accept the term and either do something or say you don't want to hold the token.

cheers

Evan Leibovitch<evan@telly.org> wrote:

...

On 27 September 2012 11:57, parminder<parminder@itforchange.net> wrote:

...

You say that it is within the scope of the WG to give advice on the private gTLD issue. You have pointed to me to the page where the listed issues for the WG can be seen. Here I see that on the issue of private gTLDs the token holder (not exactly sure what it means though) is Evan Leibovitch.

Actually, I'm not sure what the term "token holder" means either. I know I have had an interest in the issue, done significant research, and participated in many relevant ICANN working groups to date. But, then, so have many others here.

...

However, in an email on 25th Sept, on the newspaper article that I did on private gtlds, Evan had the following to say....

" This would have been an extremely useful intervention ... three years ago. In its current form it's merely an act of hindsight, and as such its value is severely diminished."

In response to my input to the Dev's WG, which he was kind enough to post on the ICANN website, Evan posted a response which claims that

"While I share the concerns and have expressed many myself, the ability to affect gTLD expansion policy in this direction is also long passed."

Indeed, and I stand by that.

...

If the token holder of the issue of private tlds so firmly believes that this issue is not something that anything can be done about at present, I wonder what is the discussion about. The ALAC has the bylaw-mandated remit to advise ICANN on any component of its operation, at any time. And its gTLD working group has the ability to advance any issue to the wider ALAC for consideration as formal Advice to the ICANN Board.

In the current application process the ALAC has been given a further capabilty to launch specific objections against specific applications for one of two very specific reasons:

1. The string being applied for is overly offensive of obscene 2. An applicant for a community TLD is not properly representing the claimed community

Your objections do not fall under one of the above categories, so they are beyond ALAC's capacity to object using its explicitly granted authority in this regard. As such, it becomes just another general policy issue, and I am suggesting that this particular issue is long past its due date.

Your core issue -- the private ownership of public words -- was long ago settled by consensus, a consensus in which At-Large participated (and with which some of us -- myself included -- had severe reservations). The embodiment of that consensus is the gTLD Applicant Guidebook, the subject of years of debate and side-debates that is now used as a contractual document. ALAC has the formal freedom to demand the issue be re-opened -- against the desires of every other stakeholder and our own participation in the consensus -- but I believe that to so do would be utterly pointless and ill-advised.

So let's be clear. There was no ALAC "discussion" on the issue before your (and some domain-industry) comments were brought to our attention. The core issue you advanced -- whether or not it had merit -- is now moot. Companies have filed legitimate good-faith applications, and given ICANN monetary deposits, under published guidelines that allow private ownership of TLD strings. So even should I agree with you on your core issue, advancing it at this time (which we are *technically* entitled to do) would either get us ignored or get ICANN sued.

Had you raised them when the applicant guidebook was under intense debate, you may have indeed sparked very useful debate, and perhaps affected opinions and the ALAC's attitudes at a time when we could have had influence on the final expansion policy. But your voice and this PoV was non-existent then. In fact, the real time to make such a case was even longer ago, when precedents were set by the private allocation of TLDs for common words such as .name and .museum.

Lest there be any doubt, I have long held the position -- that most in At-Large can verify -- that the gTLD expansion process as a whole is (with a very few exceptions) an utter waste of resources and, on the balance, harmful to the public interest. As such I have great understanding and and empathy for your position. But I (and other expansion cynics) could have used your support long ago, when the debate might have produced actual policy results.

Right now, though, aggressively stating this case simply comes across as bitter hindsight. And even that hindsight may be misplaced, IMO -- but that's a different topic for, perhaps, a different discussion. Suffice to say for now that it's interesting that the only comments I have seen opposing private ownership of public strings -- besides yours -- come from the domain speculation industry.

Just my opinions.

- Evan Avri Doria

---

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Alan, Thanks for your response. On Thursday 11 October 2012 08:20 PM, Alan Greenberg wrote:

Without commenting on the merits of "private gTLDs", the "exemption" being discussed is not in relation to who may register 2nd level names in the TLD. It is addressing whether the Registry needs to use ICANN accredited Registars to effect registrations.

Is this not the same as, or at least the enabling provision that makes for, an open market for 2nd level domain names, or inversely, prevents, private or closed gTLDs? I took this section from the letter written to ICANN by some people from the domain names industry, and I guessed that these people would knew what they are talking about. They claim that private or closed gTLDs are enabled because of this clause. Are they wrong? Pl see http://www.circleid.com/posts/20120925_letter_to_icann_brands_proposed_usage... It is of course possible that they are wrong, and we should check things for ourselves. However, the copy of applicant's guidelines that I am able to download does not seem to have this quoted section which the letter claims is the Section 6 of Specification 1 ("Registry Operator Code of Conduct") in Module 5 ("Base New gTLD Agreement") of the Applicant Guidebook. Some help in this matter, to be guided to the right document, will be highly appreciated. More generally, I would request you, or anyone else who have followed this process closely to guide me to those part of gltds policy documents that enable private gTLDs. As you know, I think that the idea of generic word private gTLDs is fundamentally wrong and should be abandoned, whether or not it means going back on the current policies or implementation activity. Meanwhile, at a secondary level, I am happy to search for possible technical loopholes in the existing policy that can help us guide ICANN on how it can reject applications for generic word private gTLDs within the existing policies. My email below tried to make one such attempt, but if you think the one I am tilting at is not the actual enabling clause for such private gTLDs then please do guide me to the right clauses that enable private generic name gTLDs, so that I can try to pick possible holes in it.

Essentially, it is saying you must use an ICANN accredited Registrar unless all registrations are solely for the use of the Registry or its affiliates.

The section that I quoted also says something beyond this - it says that the exception must specifically be justified as not harming pubic interest. This is where our opportunity lies. parminder

Alan

At 11/10/2012 10:28 AM, parminder wrote:

...

Dear All,

I am not sure whether a gTLD review group does exist at present, and proposes to do something, or not. And if indeed it does propose to continue, what kinds of things it might look into. Probably Avri can further clarify on this point. Although she did clarify a few days back, there are new arguments on the list against continued examination of this issue. Such a clarification will be useful for those who propose to keep pursing the subject of 'private gTLDs' as something very detrimental to public interest.

I hear voices here claiming that the time for fighting for this cause is over now. Some of those who say so otherwise seem to have sympathy for the proposition that 'private gTLDs' will be detrimental to public interest. There appears to be an overly greater desire to safeguard a process (ICANN ?) than address the substantive issue on its merits, especially when, in my view, the implications of the issue at stake are huge. In private conversations I find people, even among those centrally connected to ICANN, having varying degree of reservations about 'private gTLDs'. As I read postings on this list I see a similar sentiment. Outside the ICANN circles of course I find almost universal dismay that such a thing can be done. I wonder, then, what kind of governance process can still be going ahead with possibly allowing 'private gTLDs' and how so many of the civil society participants in ICANN processes prefer to stand on ceremony rather than agree to have a thorough debate on and (re)consideration of the issue. I appeal to the ALAC community to look into this issue in the right earnest; failing which, it is my humble opinion, they would be dis-serving their appointed role.

I also read that there has been a long process over many years to finalise the new gTLD policy, and everything was looked into with great care and decided by consensus. That is a bit surprising to me, as I did indicate in the newspaper article I wrote on this issue. So, did ALAC largely agree with a policy of allowing 'private gTLDs'? What kind of questions were raised by civil society members, what arguments were made, and what responses were received that made the proposal acceptable? ALAC must answer these questions, specifically those who were closely associated with the process. Also because these questions will be asked, and asked rather keenly, as people outside ICANN circles realise what has happened.

The above is my general statement on the subject. Notwithstanding, I also have a practical way forward to suggest for the gTLD review group, which as Avri says, mostly is to deal with 'roll-out issues'.

I must admit here that I haven't gone through the applicant guidelines and other concerned documents in detail. Those who know more about these documents may please help me, but my understanding is that the default policy is to have open registrant model, whereby all registrants have to be serviced by any gTLD owning registry on a non-discriminatory basis. Although my understanding can be wrong, and please do correct me if it is, I think 'private gTLDs' are to be allowed only under an exception to the general rule clause.

"....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."

An exception to a rule is something about which the complete burden of proof lies on whoever is seeking the exception. While requirements (i) and (ii) above are technical and can be met by applicants for private gTLDs, requirement (iii) in my view is rather stringent, and we should focus on it. BTW, using this route of opposing private gTLDs, of showing how this stringent requirement of the exception clause is not met by any applicant of private gTLDs, who seek to use generic names, to which they have no IPRs whatsoever, does make it a 'roll out' issue, placing it within the remit of the gTLD review group.

I am completely unable to see how applicants for private gTLDs employing generic names will be able to demonstrate to ICANN's 'reasonable satisfaction' that disallowing such generic names as private gTLDs 'is not necessary to protect the public interest'.

It is very important to note that, since an exception to a laid out rule is being sought, the entire burden of proof is on the applicant to actually demonstrate how public interest may not be adversely affected, rather than on ICANN to show how it may be. In default, if no determination can be made either way, of the relationship that granting of such generic name private gTLDs may have with public interest, private gTLDs will/ should obviously be disallowed. This flows from a simple reasoning that since the rule, which would obviously have been made to promote public interest, is that single registry or private gTLDs will not be allowed, that public interest presumption stands unless compelling evidence to the contrary is provided. In this regard, the following two facts/ issues are relevant;

1) Again I haven't read most generic name private gTLD applications but from what I have read I do not see even any kind of serious attempt being made to 'demonstrate' that granting such gTLDs does not have an adverse impact on public interest (the presumption, from the formulation of the rule, being that it does have an adverse impact). In this regard, it is for the applicant to capture the scenarios or potential criticisms of adverse impact and show that they do not hold. Any application that does not devote considerable space to specifically and sufficiently arguing how public interest is not impacted adversely (especially pertaining to pubic interest issues that underly the rule for open/multiple registrars, and those regarding taking up exclusive use of words to which they have no IPR claims and thus unfairly exclude other who may also want to use the particular gTLD) , should simply be rejected out of hand as not having met the requirement (iii) of the exception clause. My impression is that most generic name private gTLDs can simply be rejected on this ground.

2) I understand that, wherever and to the extent possible, ICANN tries to rescue itself from making decisions around specific public interest related issues, a constraint that it feel in being primarily a technical coordination body. Under the circumstances, ICANN should desist from entering into specific decision making with regard to specific circumstances of specific generic word gTLD applications, about certifying that as per 'its reasonable satisfaction' the default open or public gTLD rule is not necessary to apply in order 'to protect the public interest'. Trying to do so will mire ICANN into taking specific stances on issues of deep and variegated public policy implications for which ICANN is neither suited nor, normally, very inclined towards addressing.

The public interest issue to determine here is rather simple. ICANN did the current new gTLDs program presumably because it thought that there was public demand for domain names under different gTLD suffixes. This is the reason that it would now allow a number of new open gTLDs employing so many different names/ words. I wonder what kind of argument can 'reasonably satisfy' ICANN that, while there is expected to be public demand for these open gTLD name domains, there isnt public demand for .book. .beauty and all other names for which private gTLD applications are being made. In allowing such generic name private gTLDs, ICANN of course will be preventing most people from freely obtaining domain names under these gTLD suffixes. This simple straightforward fact does constitute harm to public interest (unless it can be counteracted by claim of a greater harm). I will very much like to hear arguments of applicants for private gTLDs, or anyone else here, how this is not a harm to public interest, when new gTLDs being made available openly generally is considered to be in public interest.

A trademark authority may give a ruling allowing some kinds of privileged/ exclusive uses of a word if an overriding public interest, pertaining say to improved consumer recognition of the source of a product or service, can be made out w/ith regard to specific circumstances/, the requirements of such proof being rather stringent. Is ICANN going to get into such specific considerations of who is going to use what words as private gTLD, with what justification and what effect? It will have to, since the exception clause, which alone can enable a private gTLDs, specifically requires the reaching of 'reasonable satisfaction' of ICANN in this regard. Apart from the fact that I can't see any applicants for generic word private gTLDs being able to make a good enough or even a plausible case, I am also not sure if ICANN is willing, or has the mandate, to go into such deep case-to-case public policy considerations, which concern larger economic, social and cultural implications.

I put the above points for consideration of the gTLD review group, that is if it does intend to continue looking into new gTLDs related issues. I would also like to know what kind of process does such a group follow, and whether there is certain topicality/ urgency to the issue vis a vis the Toronto meeting. Is this issue likely to come up at the meeting, and if so in what form.

Thanks, and apologies for a long submission.

parminder

On Friday 28 September 2012 12:29 AM, Carlton Samuels wrote:

...

Most would know that I have already declared on these lists an abiding interest in maintaining a strict observation of the Review Group's remit. Consequently, I am on record as rejecting - and urging the Review Group's rejection - oversight of this issue.

I am also on record for recommending a punt to the relevant At-Large WG. This happens to be the gTLD WG, largely determined from its charter. To the extent that the Chair accepts the materiality of the issue, I am prepared to vigourously debate the matter, if only for the intellectual jousting.

All this aside and knowing where we are today, I am also on record for describing the central idea at issue - ably outlined by Evan - and its likely resolution as 'attempting to shut the gate when the horse has already bolted'.

Kind regards, - Carlton

============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================

On Thu, Sep 27, 2012 at 12:52 PM, Avri Doria<avri@acm.org> wrote:

...

hi,

the token holder was used to designate the person who thought the issue was important enough to be brought up and included on the list.

the expectation, stated repeatedly in the group, was that others interested in this topic would aggregate around this person and actually get a recommendation drafted for the group to consider and work on.

there was also component it that while I would track the work and build tables that referenced it, I was not going to be the one as chair of the group to actually work each of these issues. I would put them on every meeting's agenda and see if anything had been done. and if after a long time nothing had been done, i would ask the group whether they thought the topic should be dropped from the list of issues worth considering and working on.

if the term is so odious or confusing please suggest another.

on the other hand, you could just accept the term and either do something or say you don't want to hold the token.

cheers

Evan Leibovitch<evan@telly.org> wrote:

...

On 27 September 2012 11:57, parminder<parminder@itforchange.net> wrote:

...

You say that it is within the scope of the WG to give advice on the private gTLD issue. You have pointed to me to the page where the listed issues for the WG can be seen. Here I see that on the issue of private gTLDs the token holder (not exactly sure what it means though) is Evan Leibovitch.

Actually, I'm not sure what the term "token holder" means either. I know I have had an interest in the issue, done significant research, and participated in many relevant ICANN working groups to date. But, then, so have many others here.

...

However, in an email on 25th Sept, on the newspaper article that I did on private gtlds, Evan had the following to say....

" This would have been an extremely useful intervention ... three years ago. In its current form it's merely an act of hindsight, and as such its value is severely diminished."

In response to my input to the Dev's WG, which he was kind enough to post on the ICANN website, Evan posted a response which claims that

"While I share the concerns and have expressed many myself, the ability to affect gTLD expansion policy in this direction is also long passed."

Indeed, and I stand by that.

...

If the token holder of the issue of private tlds so firmly believes that this issue is not something that anything can be done about at present, I wonder what is the discussion about. The ALAC has the bylaw-mandated remit to advise ICANN on any component of its operation, at any time. And its gTLD working group has the ability to advance any issue to the wider ALAC for consideration as formal Advice to the ICANN Board.

In the current application process the ALAC has been given a further capabilty to launch specific objections against specific applications for one of two very specific reasons:

1. The string being applied for is overly offensive of obscene 2. An applicant for a community TLD is not properly representing the claimed community

Your objections do not fall under one of the above categories, so they are beyond ALAC's capacity to object using its explicitly granted authority in this regard. As such, it becomes just another general policy issue, and I am suggesting that this particular issue is long past its due date.

Your core issue -- the private ownership of public words -- was long ago settled by consensus, a consensus in which At-Large participated (and with which some of us -- myself included -- had severe reservations). The embodiment of that consensus is the gTLD Applicant Guidebook, the subject of years of debate and side-debates that is now used as a contractual document. ALAC has the formal freedom to demand the issue be re-opened -- against the desires of every other stakeholder and our own participation in the consensus -- but I believe that to so do would be utterly pointless and ill-advised.

So let's be clear. There was no ALAC "discussion" on the issue before your (and some domain-industry) comments were brought to our attention. The core issue you advanced -- whether or not it had merit -- is now moot. Companies have filed legitimate good-faith applications, and given ICANN monetary deposits, under published guidelines that allow private ownership of TLD strings. So even should I agree with you on your core issue, advancing it at this time (which we are *technically* entitled to do) would either get us ignored or get ICANN sued.

Had you raised them when the applicant guidebook was under intense debate, you may have indeed sparked very useful debate, and perhaps affected opinions and the ALAC's attitudes at a time when we could have had influence on the final expansion policy. But your voice and this PoV was non-existent then. In fact, the real time to make such a case was even longer ago, when precedents were set by the private allocation of TLDs for common words such as .name and .museum.

Lest there be any doubt, I have long held the position -- that most in At-Large can verify -- that the gTLD expansion process as a whole is (with a very few exceptions) an utter waste of resources and, on the balance, harmful to the public interest. As such I have great understanding and and empathy for your position. But I (and other expansion cynics) could have used your support long ago, when the debate might have produced actual policy results.

Right now, though, aggressively stating this case simply comes across as bitter hindsight. And even that hindsight may be misplaced, IMO -- but that's a different topic for, perhaps, a different discussion. Suffice to say for now that it's interesting that the only comments I have seen opposing private ownership of public strings -- besides yours -- come from the domain speculation industry.

Just my opinions.

- Evan Avri Doria

---

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Hi Parminder, Comments inline On 11 October 2012 10:28, parminder <parminder@itforchange.net> wrote:

I am not sure whether a gTLD review group does exist at present, and proposes to do something, or not.

Well, it does exist, but so far it has yet to receive any comments that meet the criteria for escalation to an ALAC formal objection as defined in the applicantion process. Yours -- amongst others -- was considered and rejected for reasons that I believe were clearly and adequately stated. Now, whether the issues you raised are ripe for discussion in the broader ALAC new-gTLD working group -- the one Avri chairs -- is still pending. Should the debate move there I welcome the opportunity for a spirited rebuttal to most of your assertions, along the lines of my original response to your letter.

Although [Avri] did clarify a few days back, there are new arguments on the list against continued examination of this issue.

Not quite. It is certainly possible to further discuss this issue as a ongoing potential ALAC concern. But the process of soliciting comments, in mind of making formal application objections, is very specific and now past its due date. There were two separate strings of response: - Whether the comments received weresuitable, and within scope, to escalate into a potential formal ALAC objection (That was what the Review Team, led by Dev, was supposed to evaluate) - Whether the points raised, on a more general level, should be considered on their merits for consideration as ALAC policy advice (that is within the realm of the working group that Avri chairs)

I hear voices here claiming that the time for fighting for this cause is over now.

Some causes are still worth fighting. Some were decided within the last year, and some many decades ago. While it is certainly possible to revisit any position, it's an unfortunate fact that ICANN has pointed the domain-name infrastructure in directions that are, at both philosophical and practical levels, impossible to reverse. The doctrine that a domain name is a commodity rather than an identity is IMO a particularly and fundamentally unfortunate path, but that argument is long ago lost and impossible to win back without starting from scratch. (And I ironically, I believe that some of the "private" domains that cause concern to some are the best chance for a disruptive reboot in that direction).

Some of those who say so otherwise seem to have sympathy for the proposition that 'private gTLDs' will be detrimental to public interest.

I certainly hope I'm not counted amongst the "some" mentioned there. I have long been of the opinion that the gTLD expansion process is detrimental to the public interest -- private, public, the lot of them. There is some good in having new TLDs in scripts other than Latin, but beyond that the entire expansion program claims to solve a problem -- by making it worse. The communiqué from the first At-Large Summit describes the gTLD expansion program as "unacceptable", and that the problems it identified at that time went largely unanswered. (I would also note that the position stated above was never formally withdrawn, and assert that most of At-Large's activities in this realm have been in the form of damage-mitigation.) It's my position that the gTLD program as a whole is poorly advised, against the public interest and will ultimately fail -- but since it's going ahead anyway, I will defend the emergence of "private" TLDs as, indeed, the silver lining within this cloud, They offer the only potential for public benefit (outside of IDNs) to be found within the expansion. Note, I said "potential". The private TLDs could fail us too. But we already know that the model used by the "public" ones have already failed both end-users and legitimate providers of Internet content and services. There appears to be an overly greater desire to safeguard a process (ICANN

?) than address the substantive issue on its merits,

As I said above, there are two separate issues -- the immediate one regarding the objection process, and the larger one to be debated on the merits. The immediate one is over, so we're left to address the issue on its merits, as you wish. There was never any intent to shy away from your assertions -- on the contrary, I'm eager to confront them.

especially when, in my view, the implications of the issue at stake are huge. In private conversations I find people, even among those centrally connected to ICANN, having varying degree of reservations about 'private gTLDs'.

To the extent that the domain industry -- fearful to protect the position it has carefully built -- has worked to manufacture public opinion, you're right. Indeed, this will get worse before it gets better. But merely having such reservations does not mean that they are well-founded or indeed based on any fact. The domain industry has itself tried to protect its private interests by re-framing the issue as one of "public interest", and too many have fallen for the bait. Such fear-mongering will eventually attract the appropriate rebuttal, but not before making a lot of noise.

As I read postings on this list I see a similar sentiment. Outside the ICANN circles of course I find almost universal dismay that such a thing can be done.

Funny, nobody expressed such hand-wringing when the words "museum", "name" and "cat" were locked away some years ago. It seems that there is only dismay when the words being fretted upon are considered to have significant monetary value. Why so much whinging about L'Oreal wanting the ".beauty" TLD, while nobody has ever complained about the monopolization of "beauty.com" by an online drugstore? Is the difference fundamental, or only one of degree? Have L'Oreal, other beauty companies, or the public interest suffered because of lack of direct third-party access to beauty,com? How does it serve the public interest that "beauty.co.in" is locked away by a speculator, presently unusable by *any* information provider? Let's face some reality: The private right to control a common-language word, by having enough money and/or being first to get it, has been a founding philosophy of ICANN. It would be impossible to reject that without complete re-invention of ICANN (*"That would be just fine with us", says the ITU.*) Second reality: *All* TLDs are private. You can't outright buy any domain name, you can only rent it. Stop paying after the expiry date and someone else -- maybe even a competitor -- gets your domain. Even at the top level, each TLD registry has to pay an annual rental fee to ICANN else they lose it. In this world, nobody owns anything except temporary rights (with the partial exception of trademark holders). Even ICANN's own franchise is granted by fixed-term contract and can be taken away. In this context, the main difference between so-called "private" and "public" TLDs is only in the manner of distribution; determining who gets what. In "public" TLDs the determinations of who gets what are money and trademarks; it is in the public interest to see how other distribution models might work. What would be necessarily wrong with an *option* (remember, there will be hundreds of "open" alternatives) of domain allocation under a benign authority? "Private" TLDs offer the potential to circumvent and disrupt the conventional distribution chain, which is why the domain industry is fighting against them. I would suggest caution when conflating their vested interests with the public's.

I wonder, then, what kind of governance process can still be going ahead with possibly allowing 'private gTLDs' and how so many of the civil society participants in ICANN processes prefer to stand on ceremony rather than agree to have a thorough debate on and (re)consideration of the issue.

There is no hiding behind process going on here. Some of our timing is governed by the processes set in place by others. There was a specific matter about ALAC's ability to launch formal objections about specific applications. Your comment did not meet the rigid requirements to be escalated as a potential formal objection. That time-sensitive part is over and done with. But the ALAC has the bylaw-mandated freedom to comment on any issue at any time. If you believe, going forward, that there is valid reason for ALAC to advance the domain industry's fears of disruption as a matter of public interest, then I and others are happy to engage. So far, what I've heard has been unconvincing. 1) Again I haven't read most generic name private gTLD applications Sigh. - Evan

On Fri, Sep 28, 2012 at 5:22 AM, Evan Leibovitch <evan@telly.org> wrote:

On 27 September 2012 11:57, parminder <parminder@itforchange.net> wrote:

...

You say that it is within the scope of the WG to give advice on the private gTLD issue. You have pointed to me to the page where the listed issues for the WG can be seen. Here I see that on the issue of private gTLDs the token holder (not exactly sure what it means though) is Evan Leibovitch.

Actually, I'm not sure what the term "token holder" means either. I know I have had an interest in the issue, done significant research, and participated in many relevant ICANN working groups to date. But, then, so have many others here.

...

However, in an email on 25th Sept, on the newspaper article that I did on private gtlds, Evan had the following to say....

" This would have been an extremely useful intervention ... three years ago. In its current form it's merely an act of hindsight, and as such its value is severely diminished."

In response to my input to the Dev's WG, which he was kind enough to post on the ICANN website, Evan posted a response which claims that

"While I share the concerns and have expressed many myself, the ability to affect gTLD expansion policy in this direction is also long passed."

Indeed, and I stand by that.

...

If the token holder of the issue of private tlds so firmly believes that this issue is not something that anything can be done about at present, I wonder what is the discussion about.

The ALAC has the bylaw-mandated remit to advise ICANN on any component of its operation, at any time. And its gTLD working group has the ability to advance any issue to the wider ALAC for consideration as formal Advice to the ICANN Board.

In the current application process the ALAC has been given a further capabilty to launch specific objections against specific applications for one of two very specific reasons:

1. The string being applied for is overly offensive of obscene 2. An applicant for a community TLD is not properly representing the claimed community

Your objections do not fall under one of the above categories, so they are beyond ALAC's capacity to object using its explicitly granted authority in this regard. As such, it becomes just another general policy issue, and I am suggesting that this particular issue is long past its due date.

Your core issue -- the private ownership of public words -- was long ago settled by consensus, a consensus in which At-Large participated (and with which some of us -- myself included -- had severe reservations). The embodiment of that consensus is the gTLD Applicant Guidebook, the subject of years of debate and side-debates that is now used as a contractual document. ALAC has the formal freedom to demand the issue be re-opened -- against the desires of every other stakeholder and our own participation in the consensus -- but I believe that to so do would be utterly pointless and ill-advised.

So let's be clear. There was no ALAC "discussion" on the issue before your (and some domain-industry) comments were brought to our attention. The core issue you advanced -- whether or not it had merit -- is now moot.

On the other hand, Parminder has a point. The minute that there is precedent set and established for reviewing and revising the Applicant Guidebook after the fact, you have a defined trajectory of possibilities. I personally do not have a view on this and am hearing you both.

Companies have filed legitimate good-faith applications, and given ICANN monetary deposits, under published guidelines that allow private ownership of TLD strings. So even should I agree with you on your core issue, advancing it at this time (which we are *technically* entitled to do) would either get us ignored or get ICANN sued.

Had you raised them when the applicant guidebook was under intense debate, you may have indeed sparked very useful debate, and perhaps affected opinions and the ALAC's attitudes at a time when we could have had influence on the final expansion policy. But your voice and this PoV was non-existent then. In fact, the real time to make such a case was even longer ago, when precedents were set by the private allocation of TLDs for common words such as .name and .museum.

Lest there be any doubt, I have long held the position -- that most in At-Large can verify -- that the gTLD expansion process as a whole is (with a very few exceptions) an utter waste of resources and, on the balance, harmful to the public interest. As such I have great understanding and and empathy for your position. But I (and other expansion cynics) could have used your support long ago, when the debate might have produced actual policy results.

Right now, though, aggressively stating this case simply comes across as bitter hindsight. And even that hindsight may be misplaced, IMO -- but that's a different topic for, perhaps, a different discussion. Suffice to say for now that it's interesting that the only comments I have seen opposing private ownership of public strings -- besides yours -- come from the domain speculation industry.

Just my opinions.

- Evan _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

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