March 2017 - Gnso-newgtld-wg-wt2

recording, Attendance, AC recording and AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 30 March 2017
by Terri Agnew March 30, 2017

March 30, 2017

Dear All, Please find the attendance and recording of the call attached to this email. The AC recording and AC Chat are listed below for the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues held on Thursday, 30 March 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p7ewzny0u4m/?OWASP_CSRFTOKEN=40844f1d049ed36d 8b5428de305871e4377fc5dc11a1c7741645e01567ccb573> https://participate.icann.org/p7ewzny0u4m/ The recordings of the calls are posted on the GNSO Master Calendar page: <http://gnso.icann.org/en/group-activities/calendar> http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2> http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2 Agenda Wiki page: <https://community.icann.org/x/BLHRAw> https://community.icann.org/x/BLHRAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 30 March 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues on Thursday, 30 March 2017 at 21:00 UTC Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_B LHRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ BLHRAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1 A&s=D2nMqTyVRu6G7NyMp6dieDECbwAYRmo2Wghfz9bp9Nk&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1A&s=D2 nMqTyVRu6G7NyMp6dieDECbwAYRmo2Wghfz9bp9Nk&e= Michael Flemming 2:Terri lets give it another 2 minutes Steve Coates:Loud and clear. Karen Day:sounds fine Jeff Neuman:were with you Steve Chan:Summary of public comments available here: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system _files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste m_files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf&d=DwIF aQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9 Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1A&s=9cBLIAsRs OLljcnwailwNfXlwHLCVegLOi3IJ60H4nU&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1A&s=9c BLIAsRsOLljcnwailwNfXlwHLCVegLOi3IJ60H4nU&e= Emily Barabas:everyone can now scroll through the document Jeff Neuman:pros Steve Coates:Pros Kurt Pritz:I think we should assume people read them Jeff Neuman:I think we should go through them all and get thoughts as to which people view persuasive Phil Buckingham:Ag,ree Michael - that is what these new GTLDs are about , right Emily Barabas:Michael, there are a few more Pros on the next page as well Michael Flemming 2:I will make sure to get those. Michael Flemming 2:Thank you. Jeff Neuman:So in theory, although a closed generic may harm a registrant's ability to get a domain name in that TLD, but at the end of the day, the use of the TLD in a closed generic may actually be more beneficial for the end user (the closed TLD's customer) Steve Coates:I don't understand this one. Phil Buckingham:Jeff , I am confused ! These are CLOSED generics - so the end users are not customers - there is no arms length transaction. Steve Coates:Who the domain owner is, if it's a closed generic. Emily Barabas:Steve -- I will see if I can find the original comment that this came from Emily Barabas:If ICANN regulates the right of domain name registrants to operate closed generics, ICANNwould actually limit free expression by imposing collective obligations and top-down regulationson domain owners. NCSG Members (4 Mar. 2013); M. Rodenbaugh (6 Mar. 2013) Gg Levine (NABP):Wouldn't a closed generic be operated as a .brand? Steve Coates:If registrants are barred from a closed generic, then I don't see how the collective obligations/top down regulations come into play. Steve Coates:That seems much clearer to me, Jeff. Perhaps "domain owners" then should be "TLD applicants." Michael Flemming 2:Jeff, could I ask you to speak for another minute, please? I need to get a drink of water. Michael Flemming 2:I'm back Samantha Demetriou:It seems to me that if ICANN wades into making decisions on behalf of a "consumer" in this context it gets into content regulation, which is outside its remit Phil Buckingham:There fore there is a direct relationship between the top level ( the owner ) and the end user . Therefore the owner (can ) CONTROLS who their end users are. Surely this is anti competitive , limit consumer choice . Michael Flemming 2:Jeff, you are in the can again. Steve Coates:Cant hear you, Jeff. Terri Agnew:@Jeff, you have become muffled Terri Agnew:@Jeff, audio is better Phil Buckingham:lots better Jeff Karen Day:@Phil - how is it anti competitive? You aren't limiting who can offer similar services? Just like with a trademark, to companies can offer identical services, but can't use the same name. Why can't 1 compnay have a TLD and not another? Steve Coates:What does the CCT say about public interest? Anyone? Jeff Neuman:They have not addressed this topic Steve Coates:Barely. Jeff Neuman:yes Karen Day:barely Terri Agnew:@Samantha, much better Phil Buckingham:Agree , Samantha , but where do you draw the line Samantha Demetriou:Not at all, Jeff, just trying to keep the convo going :) Kurt Pritz:@ Jeff - The rules were set out in advance - "closed generics" were allowed Gg Levine (NABP):Don't the safeguards, which the board requires, address the interests of end users? Jeff Neuman:Gg - in the safeguard, the end users are those that go to websites, email, etc. IN this case, ICANN decided that "safeguards" were needed for registrants in the form of protecting their right to register domain names Samantha Demetriou:You could interpret that once icann made the decision to disallow CGs, they defined public interest as protecting the open marketplace for registrants Gg Levine (NABP):Jeff - right, but is that consistent with their other decisions? Emily Barabas:For those following along in the report, arguments for the case-by-case approach are on page 23 Jeff Neuman:I think case by case would be too difficult and put ICANN in a very tough if not impossible position Samantha Demetriou:+1 to Jeff Kurt Pritz:@ Jeff - no kidding. Can you imagine a public interest review panel? Jeff Neuman:I would like to serve on that panel ;) Cheryl Langdon-Orr (CLO) 2:shudder Karen Day:Totally agree jeff. Just look at the Spec 9 decisions - totally inconsistant. avri doria:i was trying to imagne a public nterest panel Steve Coates:I would rather watch a public interest panel. Steve Coates:I'd love to see some metrics on this for Round 1. How many traditional domain industry insiders filed for closed generics, versus new players to the industry. Jeff Neuman:nope Jeff Neuman:I would think industry insiders applied for open generic TLDs because that was the model they were used to and that is how they make money (selling registrations).s Jeff Neuman:I cant think of any industry insider that applied for a closed generic Steve Coates:Do we have a list of closed generics? Jeff Neuman:@Steve - you mean the list of those that initially applied as closed generics> Jeff Neuman:because there are no closed generics now Kurt Pritz:Two comments: (1) Isn't the world's largest book seller operating .book the wet dream of the new gTLD program? We would have already seen innovation, not to mention the attention it would have brought to the new gTLD program (which is sorely lacking in public recognition); why should that be stifled? (2) at the end of the day, these are just domain names. What is the difference between .book and book.com? Everything is temporary. One party might have control for a while but resources always flow to the parties that value them most highly. Cheryl Langdon-Orr (CLO) 2:thanks everyone... bye for now then... Karen Day:bye all! Jeff Neuman:thanks avri doria:guess everyone else needs to stay on line. Cecilia Smith:bye!!

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 30 March
by Julie Hedlund March 30, 2017

March 30, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 30 March. These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording. See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. Please also see the attached slides and PDF referenced below. Excerpts from the chat room are included below for ease of reference. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 30 March 1. Recap for ICANN58 -- Focused on polishing questions for CC2. -- Added new questions. -- CC2 published and out for public comment. -- No comments that would result in a new focus. 2. Closed Generics Recap of what was discussed: Closed Generics -- Background Information (slide 4) -- "Closed Generic" is referred to in the community as a "TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit. What's in writing? (slide 5) -- No reference in the AGB. -- Registry Agreement has Spec. 11.3.d. "defined as a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services groups, organizationor things from things of others." Exceptions to the RA that allow for "Exclusive Use" (slide 6) -- Granted to Code of Conduct. -- Registry qualifies as a "Brand TLD" as defined in Sepc 13 as a string where... Closed Generics --- Pros and Cons (slide 8) -- From the public comment forum on closed generics. -- Find if there is or not potential harm in allowing closed generics as well as any other notable findings from the public comments. Summary of public comments available here: https://www.icann.org/en/system/files/files/report-comments-closed-generic-… Pros: Allow Closed Generics (reading from the PDF) -- There definitely seems to be a different definition of a user depending if you are in favor or against. Those in favor of not having them define the user as the registrant -- the registrant's right to register those names. Those who favor having Closed Generics look at the user as the end user who goes to the web site, as opposed to the registrant. We need to be definitive on competition -- is it registrants or end users? -- When we look at the end user it could be described as the customer of the registry offering closed generics. End users are the individuals looking at the web site in a closed generic TLD. -- At the time the Closed Generics came into play the applications were already submitted for operating Closed Generics. Example was .search. There were a number of complaints saying the Google and other companies should not be able to take a generic name and use it for their own purposes internally as that would harm consumers. A lot of people who filed comments said that ICANN shouldn't change the requirements midway. -- On the consumer argument: If you look at one of the cons says [third on the PDF list] "closed generics favor large industry players..." You are talking about big registrars, but people will want to buy produces at the second level web site. -- Is ICANN supposed to protect registrants as users or the end users as users (those who use the web site)? Not sure that ICANN made that determination. -- Part of ICANN's mission is to act in the public interest and it is public interest to limit closed generics because it limits consumer choice. Is it ICANN's public interest to protect registrant's rights to register a name or to get new and innovative content supplied by the registry who is also the registrant. -- The term "public interest" can be confusing in a general context and especially the ICANN content. If we start to look at what types of content people can put online we have stepped out of bounds. But it seems that this is what ICANN did in this case. The public interest weighed in favor of registrants being able to register a generic string, rather than a registries innovative model operated for end users. -- Take a step back and not assume the ICANN got it right. If we believe ICANN shouldn't be involved in that kind of regulation wouldn't that overturn what ICANN did and allow Closed Generics. -- Also seems to apply to reguirements for monitoring abuse -- Spec 11.b. Applies in safeguards and the definition can change depending on the topic. -- Need kind of common definition -- registrant or consumers/end users. Cons: Restrict Closed Generics (reading from PDF): -- The rule was that if you are a generic ICANN covers its tracks -- it still has the right if it determines your string is generic (Spec 11.3.d.) Don't think it was meant to be on a case-by-case basis, but that ICANN wanted a rule. -- There is a problem in the implementation itself because it is not being implemented for certain strings -- registration policies for some strings. >From the chat: Jeff Neuman: So in theory, although a closed generic may harm a registrant's ability to get a domain name in that TLD, but at the end of the day, the use of the TLD in a closed generic may actually be more beneficial for the end user (the closed TLD's customer) Steve Coates: I don't understand this one. Phil Buckingham: Jeff , I am confused ! These are CLOSED generics - so the end users are not customers - there is no arms length transaction. Steve Coates: Who the domain owner is, if it's a closed generic. Emily Barabas: Steve -- I will see if I can find the original comment that this came from. If ICANN regulates the right of domain name registrants to operate closed generics, ICANNwould actually limit free expression by imposing collective obligations and top-down regulations on domain owners. NCSG Members (4 Mar. 2013); M. Rodenbaugh (6 Mar. 2013) Gg Levine (NABP): Wouldn't a closed generic be operated as a .brand? Steve Coates: If registrants are barred from a closed generic, then I don't see how the collective obligations/top down regulations come into play. That seems much clearer to me, Jeff. Perhaps "domain owners" then should be "TLD applicants." Samantha Demetriou: It seems to me that if ICANN wades into making decisions on behalf of a "consumer" in this context it gets into content regulation, which is outside its remit Phil Buckingham: There fore there is a direct relationship between the top level ( the owner ) and the end user . Therefore the owner (can ) CONTROLS who their end users are. Surely this is anti competitive , limit consumer choice. Karen Day: @Phil - how is it anti competitive? You aren't limiting who can offer similar services? Just like with a trademark, to companies can offer identical services, but can't use the same name. Why can't 1 compnay have a TLD and not another? Steve Coates: What does the CCT say about public interest? Anyone? Jeff Neuman: They have not addressed this topic. Kurt Pritz: @ Jeff - The rules were set out in advance - "closed generics" were allowed Gg Levine (NABP): Don't the safeguards, which the board requires, address the interests of end users? Steve Coates: I'd love to see some metrics on this for Round 1. How many traditional domain industry insiders filed for closed generics, versus new players to the industry. Jeff Neuman: I would think industry insiders applied for open generic TLDs because that was the model they were used to and that is how they make money (selling registrations). I cant think of any industry insider that applied for a closed generic. Steve Coates: Do we have a list of closed generics? Jeff Neuman: @Steve - you mean the list of those that initially applied as closed generics, because there are no closed generics now. Kurt Pritz: Two comments: (1) Isn’t the world’s largest book seller operating .book the wet dream of the new gTLD program? We would have already seen innovation, not to mention the attention it would have brought to the new gTLD program (which is sorely lacking in public recognition); why should that be stifled? (2) at the end of the day, these are just domain names. What is the difference between .book and book.com? Everything is temporary. One party might have control for a while but resources always flow to the parties that value them most highly.

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Agenda for WT2 Meeting 30 March 2017 at 21:00 UTC
by Michael Flemming March 30, 2017

March 30, 2017

Dear All, This week on 30 March 2017 at 21 UTC we will be continuing our discussion on Closed Generics. Below is the agenda. 1. *Welcome * 2. *SOI * 3. *Closed Generics* 4. *AOB* Also, I send to everyone the slides that I plan to use for the meeting. I look forward to speaking with everyone and having an exciting conversation! Kind regards, Michael Flemming

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recording, Attendance, AC recording and AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 02 March 2017
by Terri Agnew March 2, 2017

March 2, 2017

Dear All, Please find the attendance and recording of the call attached to this email. The AC recording and AC Chat are listed below for the New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues held on Thursday, 02 March 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p6ksb5h5weq/?OWASP_CSRFTOKEN=d2bb332eb83bd37e 112e25e7751c52e54fb922234e519726f89516ceebbbd6db> https://participate.icann.org/p6ksb5h5weq/ The recordings of the calls are posted on the GNSO Master Calendar page: <http://gnso.icann.org/en/group-activities/calendar> http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2> http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2 Agenda Wiki page: <https://community.icann.org/x/7ZLRAw> https://community.icann.org/x/7ZLRAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 02 March 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues call on Thursday, 02 March 2017 at 21:00 UTC for 60 minutes. Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_7 ZLRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ 7ZLRAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5 o&s=7bvJjK1XwWpPFO0UKjiSy10Kq25506GfXRVEqkyEqjo&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=7b vJjK1XwWpPFO0UKjiSy10Kq25506GfXRVEqkyEqjo&e= Emily Barabas:a little quiet Susan Payne:sounds fine Kristina Rosette (Amazon Registry):we can hear you. Karen Day:sounds fine Julie Hedlund:Your voice is quiet Michael Emily Barabas:but audible Julie Hedlund:Much better! Kristina Rosette (Amazon Registry):yes Karen Day:wow! Emily Barabas:yes Jeff Neuman:Hereis the report: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system _files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste m_files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf&d=DwIF aQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9 Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=yn2GD2Jlq rqmAqbb6TOdU80R_pi9WebcFMf17o3pLi0&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=yn 2GD2JlqrqmAqbb6TOdU80R_pi9WebcFMf17o3pLi0&e= Jeff Neuman:(Public comments) Kristina Rosette (Amazon Registry):That's the link I sent around by email before the call. Jeff Neuman:you dont have to read it Kristina Rosette (Amazon Registry):You don't need to read it. Everyone can find it on ICANN's website. Emily Barabas:we see what you are doing Emily Barabas:(scrolling, zooming, etc) Steve Chan 2:We'll unsync now though... Alexander Schubert:The AG should exclude generic keyword strings! Alexander Schubert:.makeup - L'Oréal - totally unused Susan Payne:Alexander, do you have voice capability - would be good for you to expand on makeup Karen Day:@Alexander should exclude generic strings or just closed generic strings? Alexander Schubert:Some corporate platers buy these strings up to close them down.... Alexander Schubert:You will also see registries who will rather keep ownership of all domains and "lease" them out; instead of having regular registrations. Which kills all rights for domain registrants. Cheryl Langdon-Orr (CLO):of course they do and that as a model for them is Ok... but it does have a chilling effect on others and contributes nothing to diversity trust competition or choice Cheryl Langdon-Orr (CLO):that last comment was re buy and shut down name use Cheryl Langdon-Orr (CLO):yes Jeff that is a real risk IMO Karen Day:@CLO - I disagree as regards stiffling competition, it may well 'chill' competition amongst the buy/sell side but it infact encourages competition between business and those who can innovate in the domain space by offering a tangible reward for devloping a viable innovative buisness model. Susan Payne:correct :Paul - Board chose not to make really a decision on this which is why they tasked GNSO to form a policy for future. No-one in round one could proceed as a closed generic but they were given option eventually (after most had already agreed they would open up) to go on indefinite holdd pending this PDP. Karen Day:@Alexander the .makeup space isn't being used b/c L'Oreals model was not operate an open registry. Perhaps it would be a very cool space if they hadn't been forced to open?? Kristina Rosette (Amazon Registry):Here's the Amazon letter I mentioned: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Dclosed-2Dgeneric-2D05feb13_pdfgIbbsgX7WQ.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Dclosed-2Dgeneric-2D05feb13_pdfgIbbsgX7WQ.pdf&d=DwIFaQ&c=FmY1u3PJp 6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR 2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=FmZ3F6AhElQbth0lFxBUsqt um7qEbwWzgHXCWXpv7BY&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=Fm Z3F6AhElQbth0lFxBUsqtum7qEbwWzgHXCWXpv7BY&e= Paul McGrady:@Susan, except what the Board did was undo the decision that they had made to allow it when the AGB was published. Cheryl Langdon-Orr (CLO):possibly @Karen, Kristina Rosette (Amazon Registry):+1 Paul Susan Payne:@Paul - Yes, I agree the AGB did not prohibit Alexander Schubert:If it is not a generic keyword based string: operate it like you want. But category killer keyword strings should not serve to cut out your competition or have some fishy business models which deprive registrants of certainty. A Heather Forrest:Hi everyone - apologies for joining late! Alexander Schubert:Closed Generics WILL be abused - big time. Yes: There MIGHT be some benefitial cool new business models. I doubt it: There were zero new business models in 2012. Likely this simply opens the floodgates to abuse. Karen Day 2:+1 Kristina - there is too much inconsistancy as is. Kristina Rosette (Amazon Registry):@Alexander: I think it's too early to say that zero new business models came out of the 2012 round. Paul McGrady:@Alexander - maybe the cool new business models were shutdown when the Board shutdown new generics... Alexander Schubert:Say 99% run the .com model :-) Cheryl Langdon-Orr (CLO):that is a risk that parts of the ICANN community will be most concerned about @Alexander... yes Alexander Schubert:Then: If someone needs a closed gneric for a category killer keyword string - let them propose their model - give the Internet community opportunity to oppose it! Kevin Kreuser (GoDaddy):Dish Paul McGrady:An 8 year hold is a death sentence. Let's not pretend that what the Board did was anything other than killing off closed generics... Kristina Rosette (Amazon Registry):@Jeff: You can figure it out by reading the Spec. 13 application. That's public. Kristina Rosette (Amazon Registry):Well, you can see what they argued. Not what ICANN's rationale was. Paul McGrady:The difference between now and then is that the USG was part of the GAC that advised to kill off closed generics. The USG was, at the time, the final say in what got in and what did not. There would have been no point in allowing closed generics to proceed if the USG was not going to let them in the root in any event. However, the USG is no longer in that role. Karen Day 2:Guess we need to ask Apple too then @Jeff - it's a brand. Michael Flemming:I think Jeff is aware of that. He just wants us discuss about those brands that overlap with generic strings. Alexander Schubert:ICANN provides registrants with certain rights! If domains aren't anymore REGISTERED (via registrars) then all these rights are gone. The domain is then "leased" - maybe according to some Offshore legal entity that you can't even sue in the U.S.! Does the registrars constituency know that they are about to be thrown under the bus? Maybe someone should tell them.... Kristina Rosette (Amazon Registry):I don't think it's necessarily your role to have to come up with all the questions. We, as a group, do. Paul McGrady:@Jeff, its a competition law issue. Mary Wong:@Paul, what would be the specific legal question(s) to be asked? Susan Payne:OK - Question to get ball rolling: Is there a harm to allowing closed generics and if so what is that harm avri doria:what the harm is, or what the harrm is beleived to be. Karen Day 2:That wasthe percieved harm, but maybe Susan is asking do we have evidence of actual harm? Mary Wong:Going back to basics - does the group have a common understanding of what "closed generics" means as a term and category? Alexander Schubert:ONE SImple example: In the current registry-registrar-registrant model a domain is registered; and can be renewed infinitely. The registrant invests money and builds a brand around the domain. In the closed generics model a registry could simply retain the right to "sell" the domain at any time - and cancel the lease! So if you make books.com a big brand - the registry can kind of sell the besis of your brand! Just an example how registrants rights might be violated! Heather Forrest:In my mind this all feeds into a broader question, which is: what do we do with those areas of the Guidebook that progressed/changed after the GNSO PDP recommendations were agreed upon (ie, through GAC/Board change)? Paul McGrady:@Mary Wong, happy to help think through your question and get a more robust/specific response, but what immediately comes to mind is: Does the post-IANA transition ICANN (the corporation) have a legal basis to restrict the nature of the business models adopted by gTLD registries other than requiring registries to comply with applicable law? Kristina Rosette (Amazon Registry):Many of us have long flights coming up in which we could read the public comment report. ;-) Karen Day 2:@Mary, I think that is a debatable question as some will argue that "generic" only applies to those specific tlds that the GAC called out. avri doria:i have heard of no actual harm. Food is a good example. while it is a brand, it looks like a close generic and if being run as a closed generic, has there been any harm? Mary Wong:@Karen, that's why staff is asking the question - if there is no agreed understanding of what the term means, it's hard to see how conclusions can be reached via consensus. Mary Wong:@Paul, thanks Cheryl Langdon-Orr (CLO):good plan Jeff Karen Day 2:@Mary totally agree avri doria:and are there other cases of branded generic words that are being run closed? Paul McGrady:@Jeff, I think we need to answer the basement question first. Can the new ICANN actually do this (harm or not)? Jeff Neuman:Paul - I dont think that we can get into the overarching questions Jeff Neuman:@paul - that question would apply to everything ICANN does Paul McGrady:@Jeff, how so? Jeff Neuman:I guess their answer would be that they can do anything that anyone contractually agrees with Jeff Neuman:Does ICANN have the right to require PICS? Jeff Neuman:Does ICANN have the right to require a public whois? Jeff Neuman:What I am saying is that it cant be for our group to research whether icann has the right to regulate Kristina Rosette (Amazon Registry):Oh Jeff, I don't have the energy for an existencial crisis right now. :-) Jeff Neuman:@Kristina - exactly :) Cheryl Langdon-Orr (CLO):hell no Paul McGrady:@Jeff, its not the right to regulate that is the concern. It is the right to exclude that is the problem being discussed. Cheryl Langdon-Orr (CLO):the energy not the answer to the questions Jeff Neuman:By signing the Applicant Terms and conditions, every applicant gives ICANN the right to exclde for any reason Jeff Neuman:(which I do not agree with) Jeff Neuman:But that is what they would argue Paul McGrady:@Jeff, if I don't want to sign the Applicant Terms & Conditions, where else can I "buy" a TLD registry contract? Kristina Rosette (Amazon Registry):I think we have only a few minutes. Can we agree on an action plan for our next meeting? avri doria:For the moment can we accept there is as of yet no proof of harm? Alexander Schubert:This is how for example .de.com domains are sold in a way that completely "feels" like a "normal regisration" - but if someone buys "de.com" up - all registrantions are gone... https://urldefense.proofpoint.com/v2/url?u=https-3A__www.namecheap.com_domai ns_registration_cctld_de-2Dcom.aspx <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.namecheap.com_doma ins_registration_cctld_de-2Dcom.aspx&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPS S6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8Jf DXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=ZN1VkJqj2_DBTqG3FYb4iozjz7BZwhrmOaVGzA_zTB 0&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=ZN 1VkJqj2_DBTqG3FYb4iozjz7BZwhrmOaVGzA_zTB0&e= Michael Flemming:Yes, Avri. So we will ask for it. Cheryl Langdon-Orr (CLO):bye for now then... safe travels to those who are attending CPH meeting Kristina Rosette (Amazon Registry):bye. Safe travels. Jeff Neuman:my computer is not letting me lower the hand :) Alexander Schubert:TNX Alexander Schubert:Bye Robert Burlingame:Thank you. Karen Day 2:bye all

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 02 March
by Julie Hedlund March 2, 2017

March 2, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 02 March. These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording. See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. Please also see the attached slides referenced below. Excerpts from the chat room are included below for ease of reference. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 02 March 1. CC2 Questions (slides 4-8) -- Any questions about the questions? [None] 2. Closed Generics Background (slide 10) -- What is a "closed generic"? -- is referred to in hte community as a "TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit". Also see definition of "generic string" in the Registry Agreement Specification 11.3.d. Background Information, Cont. (Slides 11, 12, 13, 14, & 15) -- No reference to closed generics in GNSO Policy -- No reference in the Applicant Guidebook -- Registry Agreement Specification 11.3.d -- Public Comment report: https://www.icann.org/en/system/files/files/report-comments-closed-generic-… (See summary on slide 13) -- Where are we now? NGPC requested in their 06 June 2015 meeting that the GNSO include the issue of closed generics in this PDP. -- Exceptions to the RA that allow for "Exclusive Use" (Slide 15) -- Registry qualifies as a "Brand TLD" as definined in Specification 13 as a string (Slide 15) Million Dollar Question: (Slide 16): Should there be restrictions around exclusive use of generic TLDs? -- Point out that whether we decide to allow or not allow we need to account for certain things that have happened -- such as .food granted under Specification 13. -- Should decide how to allow exceptions. Board has asked for a policy for the next round. -- One of the options is to say "no, we are fine with what the Board did with a tweak here or there." -- Amazon's view: restricting closed generics raises the issue of what is closed and what is generic. Could put ICANN in the position of deciding that some business models are better than others. Also could hinder innovation, such as using a TLD as an incubator for new business models. See: https://forum.icann.org/lists/comments-closed-generic-05feb13/pdfgIbbsgX7WQ…. -- Questions: 1) If we allow closed generics are we getting ICANN into regulation of certain business models? 2) What is the difference between closed generic TLD and a generic TLD that has a ton of restrictions? -- Comments: In the last round they were not allowed but there was never a good reason given. Governments maybe had competition concerns, but could not spell out what that could be. GAC advice that modified a huge portion of the AGB after the AGB was supposed to be fixed. Doesn't seem to be any reason to continue with the way the last round turned out. -- What if we keep what we have today -- keep Specification 3d as is? IIt would be a bad idea of ICANN being in the way of healthy competition. We need to look at the broader issue. -- The Board punted to the GNSO. There wasn't really a rationale. Important that the PDP examines this issue. -- Almost impossible not to regulate. -- Question #1: What is the basis upon which ICANN has the power to decide which business models make it and which don't? Answer: If they don't have any legal basis to restrict closed generic that answers the question. But if there is a legal basis what are the perceived harms? -- Don't know of any research that ICANN did. Could see if there was a Board memo that was public, but probably because it came in as GAC advice -- rather than disagreeing with the GAC tried to find a way to say yes. Did not say no, but put applications on hold until the model was changed. Somehow .food got through. -- The distinction with .food it was a Spec 13 application. It was a valid trademark registration by the US PTO. Be cautious about suggesting that we/ICANN should be imposing its judgment over that of national trademark offices. -- Strongly urge going back to Paul's suggestion to go back to questions we need to answer. -- We need to ask the questions, but be aware of who we will ask. Need to ask an outside law firm, not ICANN. -- On research: We may have to ask for research to be done, but not sure this question involves a legal issue. It is policy based. But could be a competition law issue. Need to narrowly tailor questions. Look at the pros and cons, what are the benefits and harms. -- Maybe we don't have an understanding of what is a closed generic. Action Item: Need to come back and look at what is a closed generic. There is a definition in Specification 13 and Specification 11. Categorize the harm and benefits. Prepare something for the next call. >From the chat: Alexander Schubert: The AG should exclude generic keyword strings! Example: makeup - L'Oréal - totally unused. Some corporate platers buy these strings up to close them down...You will also see registries who will rather keep ownership of all domains and "lease" them out; instead of having regular registrations. Which kills all rights for domain registrants. Cheryl Langdon-Orr (CLO): of course they do and that as a model for them is Ok... but it does have a chilling effect on others and contributes nothing to diversity trust competition or choice -- that last comment was re buy and shut down name use. Cheryl Langdon-Orr (CLO): yes Jeff that is a real risk IMO. Karen Day: @CLO - I disagree as regards stifling competition, it may well 'chill' competition amongst the buy/sell side but it infact encourages competition between business and those who can innovate in the domain space by offering a tangible reward for developing a viable innovative business model. Susan Payne: correct: Paul - Board chose not to make really a decision on this which is why they tasked GNSO to form a policy for future. No-one in round one could proceed as a closed generic but they were given option eventually (after most had already agreed they would open up) to go on indefinite hold pending this PDP. -- Need to look at where the law might apply and we need to have a basis for our policy. -- What is the harm? Answer could be in the public comments -- that closed generics will harm the open Internet -- could collect the pros and cons. Karen Day: @Alexander the .makeup space isn't being used b/c L'Oreals model was not operate an open registry. Perhaps it would be a very cool space if they hadn't been forced to open?? Kristina Rosette (Amazon Registry): Here's the Amazon letter I mentioned: https://forum.icann.org/lists/comments-closed-generic-05feb13/pdfgIbbsgX7WQ…. Paul McGrady: @Susan, except what the Board did was undo the decision that they had made to allow it when the AGB was published. Cheryl Langdon-Orr (CLO): possibly @Karen, Kristina Rosette (Amazon Registry): +1 Paul Susan Payne: @Paul - Yes, I agree the AGB did not prohibit Alexander Schubert: If it is not a generic keyword based string: operate it like you want. But category killer keyword strings should not serve to cut out your competition or have some fishy business models which deprive registrants of certainty. Closed Generics WILL be abused - big time. Yes: There MIGHT be some benefitial cool new business models. I doubt it: There were zero new business models in 2012. Likely this simply opens the floodgates to abuse. Karen Day 2: +1 Kristina - there is too much inconsistancy as is. Kristina Rosette (Amazon Registry): @Alexander: I think it's too early to say that zero new business models came out of the 2012 round. Alexander Schubert: Say 99% run the .com model :-) Cheryl Langdon-Orr (CLO): that is a risk that parts of the ICANN community will be most concerned about @Alexander... yes Alexander Schubert: Then: If someone needs a closed gneric for a category killer keyword string - let them propose their model - give the Internet community opportunity to oppose it! Kevin Kreuser (GoDaddy): Dish Paul McGrady: An 8 year hold is a death sentence. Let's not pretend that what the Board did was anything other than killing off closed generics... Kristina Rosette (Amazon Registry): @Jeff: You can figure it out by reading the Spec. 13 application. That's public. Well, you can see what they argued. Not what ICANN's rationale was. Paul McGrady: The difference between now and then is that the USG was part of the GAC that advised to kill off closed generics. The USG was, at the time, the final say in what got in and what did not. There would have been no point in allowing closed generics to proceed if the USG was not going to let them in the root in any event. However, the USG is no longer in that role. Karen Day 2: Guess we need to ask Apple too then @Jeff - it's a brand. Michael Flemming: I think Jeff is aware of that. He just wants us discuss about those brands that overlap with generic strings. Alexander Schubert: ICANN provides registrants with certain rights! If domains aren't anymore REGISTERED (via registrars) then all these rights are gone. The domain is then "leased" - maybe according to some Offshore legal entity that you can't even sue in the U.S.! Does the registrars constituency know that they are about to be thrown under the bus? Maybe someone should tell them.... Mary Wong: @Paul, what would be the specific legal question(s) to be asked? Susan Payne: OK - Question to get ball rolling: Is there a harm to allowing closed generics and if so what is that harm? avri doria: what the harm is, or what the harrm is beleived to be. Karen Day 2: That wasthe percieved harm, but maybe Susan is asking do we have evidence of actual harm? Mary Wong: Going back to basics - does the group have a common understanding of what "closed generics" means as a term and category? Alexander Schubert: ONE SImple example: In the current registry-registrar-registrant model a domain is registered; and can be renewed infinitely. The registrant invests money and builds a brand around the domain. In the closed generics model a registry could simply retain the right to "sell" the domain at any time - and cancel the lease! So if you make books.com a big brand - the registry can kind of sell the besis of your brand! Just an example how registrants rights might be violated! Heather Forrest: In my mind this all feeds into a broader question, which is: what do we do with those areas of the Guidebook that progressed/changed after the GNSO PDP recommendations were agreed upon (ie, through GAC/Board change)? Paul McGrady: @Mary Wong, happy to help think through your question and get a more robust/specific response, but what immediately comes to mind is: Does the post-IANA transition ICANN (the corporation) have a legal basis to restrict the nature of the business models adopted by gTLD registries other than requiring registries to comply with applicable law? Kristina Rosette (Amazon Registry): Many of us have long flights coming up in which we could read the public comment report. ;-) Karen Day 2: @Mary, I think that is a debatable question as some will argue that "generic" only applies to those specific tlds that the GAC called out. avri doria: i have heard of no actual harm. Food is a good example. while it is a brand, it looks like a close generic and if being run as a closed generic, has there been any harm? Mary Wong: @Karen, that's why staff is asking the question - if there is no agreed understanding of what the term means, it's hard to see how conclusions can be reached via consensus. avri doria: and are there other cases of branded generic words that are being run closed? Paul McGrady: @Jeff, I think we need to answer the basement question first. Can the new ICANN actually do this (harm or not)? Jeff Neuman: Paul - I dont think that we can get into the overarching questions. @paul - that question would apply to everything ICANN does. Paul McGrady: @Jeff, how so? Jeff Neuman: I guess their answer would be that they can do anything that anyone contractually agrees with. Does ICANN have the right to require PICS? Does ICANN have the right to require a public whois? What I am saying is that it cant be for our group to research whether icann has the right to regulate. Paul McGrady: @Jeff, its not the right to regulate that is the concern. It is the right to exclude that is the problem being discussed. Jeff Neuman: By signing the Applicant Terms and conditions, every applicant gives ICANN the right to exclde for any reason (which I do not agree with). But that is what they would argue. Paul McGrady: @Jeff, if I don't want to sign the Applicant Terms & Conditions, where else can I "buy" a TLD registry contract? avri doria: For the moment can we accept there is as of yet no proof of harm? Alexander Schubert: This is how for example .de.com domains are sold in a way that completely "feels" like a "normal regisration" - but if someone buys "de.com" up -- all registrantions are gone... https://www.namecheap.com/domains/registration/cctld/de-com.aspx Michael Flemming: Yes, Avri. So we will ask for it.

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Agenda for WT2 Meeting 2 March 2017 at 21:00 UTC
by Michael Flemming March 2, 2017

March 2, 2017

Dear All, My apologies in sending this out so late. I have run into some urgent family matters that have kept me from sending out emails in a timely fashion. This week on 2 March 2017 at 21 UTC we will be covering Closed Generics. I look forward to this being one of our more active discussions. As always, please note the agenda below. 1. *Welcome * 2. *SOI * 3. *CC2 Questions (Very brief follow up and time given for questions needing clarification) * 4. *Closed Generics * 5. *AOB (I don't think we will have much time for that this week, though).* Also, I send to everyone the slides that I plan to use for the meeting. I look forward to speaking with everyone and having an exciting conversation! Kind regards, Michael Flemming

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