April 2017 - Gnso-newgtld-wg-wt2

Actions/Discussion Notes: Work Track 2 SubTeam Meeting 27 April
by Julie Hedlund April 28, 2017

April 28, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 27 April. 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 chat room notes at: https://community.icann.org/download/attachments/64073994/AC%20Chat%20track…. As the notes were quite extensive they were not excerpted below. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 27 April 1. Full Working Group Update: -- Met last Monday and also will meet next Monday. -- Went over our responses to the CCT-RT draft report. -- Had two Geographic Names Webinars on Tuesday, attended by over 150 people. May have been 25 governments. Good first experimental call with members of the entire community, including the GAC. -- The recordings, transcripts, and slides from the two geographic names sessions are available here: https://gnso.icann.org/en/group-activities/calendar#apr -- Preparing for the face-to-face sessions in Johannesburg in June. -- Drafting Teams are underway on some of the overall issues. 2. Closed Generics: Work thus far: -- Looked at a history. -- Looked at what is a closed generic and what is the debate. -- Looked at the pros and cons from the public comments. -- This PDP WG has been asked to look at how to move forward, such as a compromise that could allow for closed generics that could prove satisfactory to those that see potential harms, such as competition, public interest, etc. Comment of Some NCSG members to the Closed Generics public comment here: https://forum.icann.org/lists/comments-closed-generic-05feb13/msg00061.html Milton Mueller, Professor, Georgia Institute of Technology School of Public Policy -- Favored allowing closed generics. -- Concerns: Idea of free competition among business models. -- Opposition to closed generics from people who have interest in the current business model. -- Closed generic -- owner of the TLD tries to manage what happens at the second level, such as a brand -- hotels.com for example -- to increase the value of the domain. -- Important for consumers when you have indescriminate mass registration under a brand domain you could have consumer confusion. Not sure you would want to ban any alternatives to that model. Would be denying end users an option and forcing every registry to operate under the mass registration model. -- Long-standing concern with freedom of expression: having ICANN decide what is a generic term. -- Freedom of expression implies in the domain name system the ability of a domain registry to exercise some descretion who applies in their registry. -- Why not allow both models to coexist. -- There are generic names that have been registered that don't convey monopoly power. Discussion: -- If you look at TLDs from 2002 and 2004 rounds, and also 2012 these were all positive. -- Could now see TLDs used anticompetively. -- Example seems to be the lock-in potential, not of closed generics. Independent of closed generics problem. -- Not sure you can raise the price for one domain. -- How is that different from a generic or non-generic. -- Problem is: why would we go through this exercise if we know that we are going to encounter the same bogus competition fears from the GAC that we got before? We need to figure out a way to make it acceptable to the GAC. -- The GAC/governments would be trained in the concept of competition policy. Say that if they think there is a competition problem by delegating a closed generic let's see you apply local law and the measurement of market power. Question: If we were to allow closed generics would it be possible to allow the national law to deal with the proposed harms being raised? -- The NCSG is deeply divided on this issue. -- You can't register a generic word under trademark law as a trademark. -- Why put the community through this again? -- The reason we are going through this again is because policy was never set on this matter so the Board has asked the PDP WG to consider it again and whether there needs to be a policy. -- 2013 comments were very reactive to comments that were filed. Question: Is there a way that someone could apply for a TLD proposing a closed model but also address all of the harms/cons? -- It is incumbent on us to consider how those proposed harms could be addressed. Incumbent on us to at least address it. -- We have raised a similar question in the CC2 comment. -- Respond to the statement that the whole responded against closed generics -- not a groundswell. Correct that we can deal with this better in the current context. It makes sense to have a general policy. It is a matter of business model competition. -- Can we have an example of a business model that would only work if the TLD is closed? Look at the NCSG member comments -- .hotel in which you select and organize the domain in a manner that does not allow anybody to register -- you have to meet certain criteria. Any sponsored domain operates that way. -- For community applications you could apply as a TLD. Michele Neylon, Blacknight Internet Solutions, Registrar -- We noted the case of .cloud. It has been adopted widely by companies that operate cloud-based services. -- Application for .blog where the only possible usage was on a specific platform. -- If you look at it in terms of allowing people to register as active users. -- It would be very hard to believe that anybody would have such a strong piece of IP that would give them an exclusive right to that (.blog/.cloud). -- If .food was used solely for the Food Network it would be hard to argue against it but I wouldn't like it. Discussion: -- .blog option -- that you have to decide based on the platform. -- It's about having a choice. The question whether it's a good choice -- the question is should ICANN dictate what business model you should be able to use. -- If a trademark owner has a registration for a trademark it's not about closed generics anymore. -- The Pros/Cons documents needs a "GAC Management" Section. Otherwise, we are just driving ourselves off the same old cliff. -- There are people looking at this. It is an important issue. -- Not sure that saying a decision that came after the Board's decision should govern the policy discussion now.. -- Didn't have time to go through all of these statements. Need to capture all of the pros and cons that have been said.

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recording, Attendance, AC recording and AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 27 April 2017
by Terri Agnew April 27, 2017

April 27, 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, 27 April 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p2hoivyjjkj/?OWASP_CSRFTOKEN=270a392f7eacd741 b08abf3f2654f84519ad6e8cf34f5cf5e6c5e8497ddb0bc4> https://participate.icann.org/p2hoivyjjkj/ 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/CrHRAw> https://community.icann.org/x/CrHRAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 27 April 2017 Julie Bisland:Welcome to the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues on Thursday, 27 April 2017 at 21:00 UTC. Julie Bisland:Agenda Wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_C rHRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ CrHRAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=QlbBwdawy6LX1PMUZTN3vRdLZMoEKxUFoM5yZGQsaV s&s=9oGePU4gxyyDGZXNWvnFiOMcgUqIwWWZpAQr76uZLtg&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=QlbBwdawy6LX1PMUZTN3vRdLZMoEKxUFoM5yZGQsaVs&s=9o GePU4gxyyDGZXNWvnFiOMcgUqIwWWZpAQr76uZLtg&e= Terri Agnew:We would like to introduce Julie Bisland as GNSO SO/AC Support coordinator. She has started training with us this week. Michele Neylon:evening Alexander Schubert:nicht Alexander Schubert:*night Jeff Neuman:Welcome everyone! Jeff Neuman:We have some phone numbers listed without names....is it possible to match up numbers with names Michele Neylon:the 353 one is me Milton Mueller:is that an IPv6 address? ;-) Cecilia Smith:I'm 858 Michele Neylon:Milton :) Steve Chan:The recordings, transcripts, and slides from the two geographic names sessions are available here: https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group -2Dactivities_calendar-23apr <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou p-2Dactivities_calendar-23apr&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7 xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=QlbBwdawy6LX1PMUZTN 3vRdLZMoEKxUFoM5yZGQsaVs&s=Ycfa-Up_0CEFNswZUk3eGbbKZhP0Tuj8VKiSs8u2LFc&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=QlbBwdawy6LX1PMUZTN3vRdLZMoEKxUFoM5yZGQsaVs&s=Yc fa-Up_0CEFNswZUk3eGbbKZhP0Tuj8VKiSs8u2LFc&e= Kathy Kleiman:NCSG was deeply divided on this issue. Jeff Neuman:Steve - Can we post a link to the statement that Milton is referring to Paul McGrady:@Kathy - so was the IPC. Tricky topic. Steve Chan:@Jeff, sure. NCSG comment to the Closed Generics public comment here: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Dclosed-2Dgeneric-2D05feb13_msg00061.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Dclosed-2Dgeneric-2D05feb13_msg00061.html&d=DwIFaQ&c=FmY1u3PJp6wrc rwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk &m=QlbBwdawy6LX1PMUZTN3vRdLZMoEKxUFoM5yZGQsaVs&s=BguCu0SjH3q38gI4KxfvCsFR1PI 0HUiSs_NtTHsIeo4&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=QlbBwdawy6LX1PMUZTN3vRdLZMoEKxUFoM5yZGQsaVs&s=Bg uCu0SjH3q38gI4KxfvCsFR1PI0HUiSs_NtTHsIeo4&e= Jeff Neuman:@Kathy - thanks for pointing that out. The reason I introduced it as the NCSG comment is because that is how it was filed "Comments of Noncommercial Stakeholder Group members on 'Closed generic' TLD applications" Kathy Kleiman:@Jeff, it's not an NCSG comment, but a comment signed by certain NCSG members. Kathy Kleiman:There are a lot of NCSG members who work for the principle (and have for years) that Generic Words are not owned by anyone. Steve Chan:Apologies Kathy, you're right. This is a comment from members of the NCSG rather than on behalf of the NCSG. Jeff Neuman:@Kathy - understood. I am not taking sides...just trying to make sure everyone is able to present their positions. If I am coming across another way, I apologize Robin Gross:There is no such thing as a "generic" word in any non-fuzzy sense. Michele Neylon:I recall it being a bone of contention at the time Kathy Kleiman:In the proceeding that the ICANN Board opened for the discussion of this topic, there was an outpouring of concern - from around the world -- booksellers, furniture makers, cloud computing platforms. Michele Neylon:Well one "cloud" company wanted to have .cloud for themselves Kathy Kleiman:The other major view in NCSG was that Generic Words belong to everyone, and that Generic Words can't be registered at trademarks for their generic purposes. They are open to everyone in the industry, field or area. Robin Gross:I don't understand why ICANN should want to regulate business models in this way. Milton Mueller:remember that any "generic" term regulation has to apply to multiple languages and character sets Robin Gross:Requiring a specific business models seems anti-innovation and anti-competitive. Kathy Kleiman:I have never seen such a huge outpouring of concern - including for .BOOK as just mentioned - from around the world (until we got to proxy/privacy) Kristina Rosette (Amazon Registry):Alexander, let's use .write, please. I have concerns about using one of Amazon's TLDs for your example to avoid misunderstandings later. Paul McGrady:@Alexander - price gauging isn't unqiue to closed generics. Ask any brand owner that went through certain recent Sunrises... Rubens Kuhl:Nope, a registry can increase price for one domain. Susan Payne:I've experineced unilaterally imposed huge price increases in the ccTLD space too. I don't see what this has to do with closed generics - but it's late here and I'm tired Michele Neylon:I'm confused Michele Neylon:(which happens a lotO) Kathy Kleiman:@Michele, right, and the Cloud Industry Forum wrote to the ICANN Comment Forum to bemoan the locking up of a "highly generic phrase that is referred to by the industry as a whole and is not under restriction or ownership by any organizations, but has become in essence an industry classification." Milton Mueller:sure Alexander Schubert:Kristina: Have read your comment only now - didn't read the comments during the discussion. Rubens Kuhl:One way is to tell GAC that governments are the ones with anti-trust authority and better equipped to handle possible issues. Paul McGrady:@Rubens, much of these things were tried in the last round. But when your objections are not based in law, they are impervious to good arguments Kathy Kleiman:I would like to raise my hand, but having trouble with browser Alexander Schubert:Question to all: How could you raise the price for a single SLD WITHOUT raising the price for others AFTER a domain was registered? To my understanding that is not possible right now with gTLDs! Robin Gross:All of the examples provided by those who want to kill closed generics are by competitors of the applicant not wanting their competitor to have the name. This is clearly a gaming system. Alexander Schubert:And regarding "Market Domination": If Amazon registers .book - and doesn't use it; that creates a leverage for Amazon because there will be less options for online sales and distribution for books! Rubens Kuhl:Alexander, it's possible. The registry only needs to send a notice of increase 6 months ahead to registrars, and that notice can specify specificlabel.TLD as the only that have increased. Milton Mueller:Kathy, domain names are not trademarks Robin Gross:Registration is about providing EXCLUSIVE use. Not saying someone can't use a word. That point is missing from this argument. Alexander Schubert:And when we are at it: Why do we laws garnting public access to beaches ? Why not selling all beaches to the rich - and the poor can't go to the beach anymore? Milton Mueller:right Robin whether a TLD is open or closed, it is exclusively controlled by the registry Robin Gross:It is a conflation of concepts of right to exclusive use with right to use at all. Big difference legally. Susan Payne:@Alexander, even if you increase the prices across the TLD as a whole, it has an impact on the individual registrant. If that is the domain you have built your online presence on it is not a cheap or simple matter to switch so your choices are limited Alexander Schubert:Rubens: You can raise prices ACCROSS the board - but not for a SINGLE domain, right? Milton Mueller:Alexander: there are lots of private beaches. They co-exist with public beaches. I think we can have both Rubens Kuhl:Note that this per-label pricing had more occurences of lowering prices than raising prices. Most premium domains have seen not much market demand and the price was reduced. Kathy Kleiman:Tx Jeff Kathy Kleiman:Could you post the chart you are talking about again? Rubens Kuhl:Alexander, wrong. It's per label pricing on 2012-round gTLDs. Alexander Schubert:Rubens: Please define "per label"? Michele Neylon:Rubens - correct Michele Neylon:Alex - per domain thing.tld Michele Neylon:label - domain Alexander Schubert:OK Michele Neylon:same thing Alexander Schubert:Didn't knew that..... Rubens Kuhl:alexander.gay can cost differently from iam.gay Michele Neylon:you can raise or lower prices on your premium lists Michele Neylon:move them between tiers etc etc Alexander Schubert:Why would then somebody be so stupid to invest Millions into a domain.newgTLD - if it could be taken away at any given time by raising the price to a Billion USD? Milton Mueller:indeed, Alexander why? Michele Neylon:*some* registries have increased prices for existing registrations Michele Neylon:others have frozen the price Alexander Schubert:I think you just made me a BIG .com fan - again..... Rubens Kuhl:Alexander, because they don't know that ? ;-) Milton Mueller:long-term contracts offer protection against hold-up pricing Kathy Kleiman:I think they did comment ... Jeff Neuman:Milton - did I misquote you when saying that something cant be anti-comptitive in advance ? Michele Neylon:I've commented on this topic at length in the past Michele Neylon:not sure if anyone wants me to rehash what I said previously Michele Neylon:4 years later :) Rubens Kuhl:The only way a registry can guarantee it wouldn't happen is filing a PIC saying so. That would make that committment enforceable by registrants. Jeff Neuman:Michele - If you want to discuss your comments you filed, please do Michele Neylon:Jeff - happy to if people want me to Michael Flemming:Michele, would you like me to call on you next? Michael Flemming:Your feedback is very important. Michele Neylon:I don't mind :) Michele Neylon:https://www.internetnews.me/2013/02/23/5-reasons-why-closed-generic-n ew-gtlds-should-be-opposed/ Robin Gross:I haven't seen a single free speech group come out for banning closed generics. It is a business gaming issue, not a free speech issue. Jeff Neuman:@Michele - you bring a registrar perspective as well. Its rare we get registrars offering their perspective here ;) Michael Flemming:Alright, I will call on you right after Alexander. Michele Neylon:Jeff - lol Michele Neylon:Jeff - you are a registrar officially :) Jeff Neuman:I dont voice my opinion as chair Michele Neylon::) Alexander Schubert:can I respond? Rubens Kuhl:Same happens with community TLDs... Milton Mueller:yes Milton Mueller:you are just choosing to call it a community TLD instead of a closed generic. Milton Mueller:The community TLD is closed in the same sense that a closed generic is closed Kathy Kleiman:Good point Michele Neylon:a regulated TLD can be as well Kathy Kleiman:to the speaker... Alexander Schubert:Milton: If you need restrictions: Just file a ton of pics - and you are done. Like in a community TLD (obviously you do not need to identify as community priority). I just don't see why you need to completely "close" a TLD. Milton Mueller:how is that different from a closed generic Michele? Alexander Schubert:In a closed generic gTLD sooner or later ALL "rights" to registrants will vanish - and the domains will NOT be "registered" but "leased" - and the terms will be shady and intransparent. Kind of the "payday loan" of the DNS. Rubens Kuhl:The deterrence for single registrant is not the registrar equal access clause, since the policy could prescribe that only one registrant is allowed no matter the registrar... what prevents it today is one of the PICs, 3c and 3d: Rubens Kuhl:c. Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies. d. Registry Operator of a "Generic String" TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person's or entity's "Affiliates" (as defined in Section 2.9(c) of the Registry Agreement). "Generic String" means 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, organizations or things from those of others. Paul McGrady:@Milton - thanks for joining the call today. Very interesting stuff. Lots to think about, Robin Gross:The argument for banning closed generics does seem to be very anti-choice. Alexander Schubert:Milton: Choices are fine. But there is only ONE ".music" and ONE ".gay" - and we shouldn't toy around with those strings.... Alexander Schubert:Thanks Milton! Paul McGrady:@Robin - yes. It was a way for less creative competitors to make sure that a competitor that had the foresight to apply did not get the commercial advantage that it paid for as an early adopter. Susan Payne:@Alexander - it's a closed TLD. There aren't registrants in the traditional sense. So it's not a question registrants losing rights and being at the mercy of the RO Alexander Schubert:Susan: The Centralnic thrid level domains (based on ll.com) are sold as "normal registrations" at registrars - and the consumer doesn't notice what happens in the background... Alexander Schubert:The same will happen with "closed generics": Domains will b sold at registars! Jeff Neuman:So you were ok with The Food Network getting .food? Jeff Neuman:And using it in connection with the Food Network avri doria:Susan, they are basically just platform users? Kathy Kleiman:.FOOD was the only closed generic to stay as a closed generics. Jeff Neuman:Yes Michele thanks Kathy Kleiman:Dozens opened up to their competitors. Robin Gross:Dictacting how people should use words like this is complete micro-management that kills innovation. Susan Payne:@Avri - Perhaps, but it depends on circumstances. What I was trying to say was that we shouldn't be assuming that the only use for a TLD is a retail "pile em high" model Kristina Rosette (Amazon Registry):Preventing an RO from limiting registrations to itself and its affiliates prevents the RO from experimenting with using the DNS in innovative ways. It's effectively impossible to innovate if 3Ps already have registered domains in the TLD. Alexander Schubert:Robin: Can you give an example how innovation would be killed? Doesn't minimum wage then also "kills innovation"? Paul McGrady:I still think the Pros/Cons documents needs a "GAC Management" Section. Otherwise, we are just driving ourselves off the same old cliff. Kristina Rosette (Amazon Registry):You can't try something new if you have to take 3P interests in their domains into account. If the experiment doesn't work and the TLD is "closed", only the RO is harmed. Kristina Rosette (Amazon Registry):And Kristina Rosette (Amazon Registry):I'm using "harm" very loosely. Alexander Schubert:And closed TLDs are maybe fine if they are NOT generic cathegory keyword strings. Susan Payne:which case? Cheryl Langdon-Orr (CLO):be good tonpost the details Cheryl Langdon-Orr (CLO):to post Kristina Rosette (Amazon Registry):And, of course, numerous objection proceedings had exactly the opposite outcome. Rubens Kuhl:I don't think the penalty box is forever. I think this PDP determines the fate of those applications. Kathy Kleiman:It was an independent review by an international panel Alexander Schubert:It would also really be nice to have a link to a source whoch decribes potential "innovations" which would ONLY work in a "closed generic"...... Jeff Neuman:Sounds like Michael has a crowd Rubens Kuhl:Alexander, I have one closed generic idea I won't disclose since it's a trade secret... Paul McGrady:This has been a fabulous call. I think it was really thoughtful. I know I walked away with a bunch to think about. Alexander Schubert:Thannks! Alexander Schubert:1:00 am here Rubens Kuhl:... and other people might have other ideas like that. avri doria:bye and thanks all for the discusssion Michele Neylon:11pm here Cheryl Langdon-Orr (CLO):thx everyone bye for now Robert Burlingame:Bye Rubens Kuhl:Bye all! Kathy Kleiman:Bye All

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Agenda for Meeting at 21 UTC April 27, 2017
by Michael Flemming April 27, 2017

April 27, 2017

Dear All, Apologies as I have not gotten this out sooner. I am currently unable to have easy access to email right now. However, I plan on being there for our upcoming meeting. For this week's meeting, we will be continuing our last discussion of Closed Generics. Last week we went over the con arguments of the public comment as well as exploring what the potential harms are. I use the word potential because the current RA does not allow for Closed Generics, as such we are unable to determine if any of these are actual harm. If someone does have evidence of actual harm, then please bring it up for discussion. However, we will be seeking proposals and ideas for how we can compromise for a way to allow Closed Generics. If you have any thoughts, we would very much appreciate them. Kind regards, Michael Flemming

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Agenda for WT2 Meeting 13 April 2017 at 21:00 UTC
by Michael Flemming April 15, 2017

April 15, 2017

Dear All, This week on 13 April 2017 at 21 UTC we will be once again discussing Closed Generics. As of our last meeting, we went through the Pros and Cons of Closed Generics by looking at the comments made in the Public Comments. We have not reached a consensus on anything at this point, however, we have not had a lot of input for the Cons and potential harm of Closed Generics at the current time. This week we will try to distinguish what potential harm exists if Closed Generics were allowed by analyzing the Public Comments even further. I welcome anyone who would like to assist in this discussion and analysis by joining us this week. Below is the agenda. 1. *Welcome * 2. *SOI * 3. *Closed Generics* 4. *AOB* 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 13 April 2017
by Terri Agnew April 13, 2017

April 13, 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, 13 April 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p96pyjrn60g/?OWASP_CSRFTOKEN=436763efcaabf56f d0227f108d44d3c705d81ed2dd669eac5ee8f7b29a7d3189> https://participate.icann.org/p96pyjrn60g/ 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/B7HRAw> https://community.icann.org/x/B7HRAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 13 April 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues on Thursday, 13 April 2017 at 21:00 UTC. Terri Agnew:wiki agenda page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_B 7HRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ B7HRAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=hYPNbusNs1aZNiWMt5YLdxDjanNXesFnRf6fmhomND w&s=vm5gV3gjsKgjXRvhkTmcfU1EovHJOj1MvA2dolJuMT4&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=hYPNbusNs1aZNiWMt5YLdxDjanNXesFnRf6fmhomNDw&s=vm 5gV3gjsKgjXRvhkTmcfU1EovHJOj1MvA2dolJuMT4&e= Michael Flemming:Terri, I think Phil Buckingham is also only on the phone Susan Payne:hi, I'm trying to get a dial out Heather Forrest:I had trouble with the Adobe link in my calendar entry, but then the reminder email sent 2 minutes before we started had a link that worked just fine Heather Forrest:(sorry, not like that info is useful to Kathy, who isn't in Adobe) Terri Agnew:Thanks Heather, I will send another email to all JUST In case (including Kathy) Steve Chan:Michael, happy to assist. Terri Agnew:@Susan, if I can help dial out, please chat me your telephone number (sending you a private AC chat) Susan Payne:thanks Terri, now sorted Terri Agnew:@Susan, thank you for the update Kathy Kleiman:Finally made it in! Steve Coates:Can't hear you, sir! Paul McGrady:How about "alleged" or "proposed"? Heather Forrest:Based on Phil's comment and Michael's reply, we need to update the language in teh document on screen Paul McGrady:Perfect Heather Forrest:Paul, sorry Paul McGrady:GNSO Policy on new gTLDs actually didn't prohibit or even mention closed generics. Paul McGrady:No problem Heidi, er Heather... Heather Forrest:you bet, buddy Kathy Kleiman:Many drafters of the Applicant Guidebook felt very strongly that Closed Generics were barred by the rules. Paul McGrady:Why were non of the pro-closed generics comments from the last round included in this document? Seems either a big oversight or one-sided designed to lead us all to a particular conclusion. Susan Payne:@Kathy, that might have been the intention of some, but I don't think that was what the wording of the AGB said Kathy Kleiman:First, belatedly, tx you for the opportunity to join you today! Kathy Kleiman:@Susan, the response in 2012 and 2013 was considerable! Kathy Kleiman:https://iccwbo.org/publication/exp_499_icann_116_expert-determinatio n/ Kathy Kleiman:I think the determination stands on its own - worth reading! Susan Payne:@Kathy, what do you mean the response in 2012/2013? Kathy Kleiman:The letters and articles written in 2012 and 2013 - some circulated earlier today. Kathy Kleiman:Many with group signatures. Susan Payne:yes but my point is that is not what the AGB says, that is what some people wrote after the event surely carlos Gutiérrez:sorry butMcGrady does not come through right carlos Gutiérrez:terrible echo avri doria:Even if we don't reopen it, we need to be explicit. One of the deficits in the previous policy is that we were not specific about approving closed generics, we just assumed that of course they would be ok. Heather Forrest:I think Carlos means that Paul's mic cuts in and out avri doria:note: we did not even have a name for them back then. Cheryl Langdon-Orr (CLO):indeed Avri Paul McGrady:+1 Avri Paul McGrady:But we are only seeing what 1 side has said. Why aren't we looking at what the other side said? Michael Flemming:We have gone over the Pros in the last call. Could you be clear what the other side would be? Paul McGrady:@kathy - the Board never said that Terri Agnew:@Carlos, I also sent you a private AC Chat, try logging out and back into adobe connect, maybe even try a differrent browser to see if echo clears up Cheryl Langdon-Orr (CLO):not sure we have any consensus on that Kathy... I don't agree they are " by definition " Good Steve Chan:@Paul, the NGPC was empowered by the Board to pass resolutions. Therefore, NGPC resolutions are ICANN Board resolutions. Cheryl Langdon-Orr (CLO):rather that this needs discussion Paul McGrady:@Kathy - that was the pre-round 1 model Greg Shatan:It might be a good idea to prepare a Greg Shatan:pros document that parallels the cons document in the AC room. Kathy Kleiman:ICANN bans closed generic gTLDs, for nowKevin Murphy, June 24, 2015, 09:28:31 (UTC), Domain Policy -- ICANN has slapped a de facto ban on so-called closed generic gTLDs, at least for the remaining 2012 round applicants. 6/24/2015 Paul McGrady:+1 Greg. Having them side by side would be terrific. THis document, accidently I think, seems super-one-sided. Terri Agnew:@Carlos, did logging back in help? Susan Payne:thats a headline from a blog, not a fact. please stop mischaracterising Kathy Greg Shatan:I'll go back and look at the prior document. Paul McGrady:@Kathy - Kevin's headline isn't the same thing as a Board resolution, No need to revisit, I suppose, because the Chair just read the actual resolution which defers, not rejects Kathy Kleiman:Dozens of gTLDs (maybe more) became open. I'm not sure why this is a controversial fact. Paul McGrady:@Kathy - closed generic applicants throwing in the towel on the issue in order to preserve what they could from their application costs isn't the same thing as the Board rejecting closed generics. The options - as read by the Chair into the record were, withdraw, capitulate, or be deferred. avri doria:and we are now at the point to which they were defered. Paul McGrady:+1 Avri Kathy Kleiman:what's the question again? Steve Chan:The Code of Conduct is not loaded into the AC room...please give us a moment. Kathy Kleiman:It's Specification 9 in new gTLD Registry Agreements Cheryl Langdon-Orr (CLO):my AC has bad lag today... sorry Julie Hedlund:Unsynced Steve Chan:Specification 9 is page 282 Michael Flemming:So, I think the main point here is on 6 in relatiomn to the comment made. Rubens Kuhl:Although not always mentioned, closed generics can bring inovation as well to the DNS. .frogans is one example of the usage type that can go in that direction. Paul McGrady:@Kathy - I love him, but Michele's business is selling second level domain names, so closed generics are contrary to his business model, but that doesn't make them against the public interest Susan Payne 2:the difficulty is that all of these arguments assume that all we want are a whole series of .com alternatives. where is the innovation in that Liz Brodzinski:+1 Susan Rubens Kuhl:So the question is how to close the door to misuse without forbidding possible good uses. Paul McGrady:@Kathy - no competitors were blocked out of closed generics - all were welcome to apply for them Kiran malancharuvil:Agree with Paul and Susan Payne 2 (identity theft??) Greg Shatan:The basic argument seems to be that TLDs shouldn't be treated like second level domains. Emily Barabas:Michele's full blog post is available here: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.internetnews.me_201 3_02_23_5-2Dreasons-2Dwhy-2Dclosed-2Dgeneric-2Dnew-2Dgtlds-2D <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.internetnews.me_20 13_02_23_5-2Dreasons-2Dwhy-2Dclosed-2Dgeneric-2Dnew-2Dgtlds-2D&d=DwIFaQ&c=Fm Y1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AI gn-H4xR2EBk&m=hYPNbusNs1aZNiWMt5YLdxDjanNXesFnRf6fmhomNDw&s=ZmuH0rj5SVrKDDRF cJU6_7bM-ckCEurMrS6o1iYztrU&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=hYPNbusNs1aZNiWMt5YLdxDjanNXesFnRf6fmhomNDw&s=Zm uH0rj5SVrKDDRFcJU6_7bM-ckCEurMrS6o1iYztrU&e= should-be-opposed/ Susan Payne 2:lost connection Kiran Emily Barabas:https://www.internetnews.me/2013/02/23/5-reasons-why-closed-generic- new-gtlds- should-be-opposed Rubens Kuhl:Also of notice is that most of the anger against closed generics came specifically regarding .book. Emily Barabas:pardon the broken link -- https://urldefense.proofpoint.com/v2/url?u=https-3A__www.internetnews.me_201 3_02_23_5-2Dreasons-2Dwhy-2Dclosed-2Dgeneric-2Dnew-2Dgtlds-2Dshould-2Dbe-2Do pposed_ <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.internetnews.me_20 13_02_23_5-2Dreasons-2Dwhy-2Dclosed-2Dgeneric-2Dnew-2Dgtlds-2Dshould-2Dbe-2D opposed_&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSF pCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=hYPNbusNs1aZNiWMt5YLdxDjanNXesFnRf6fmhom NDw&s=kZf9cyi03zgwTFXoIUOQTsua6pvC5PTdsyD8ZvJV3OY&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=hYPNbusNs1aZNiWMt5YLdxDjanNXesFnRf6fmhomNDw&s=kZ f9cyi03zgwTFXoIUOQTsua6pvC5PTdsyD8ZvJV3OY&e= Kathy Kleiman:@Paul - of course we are closing off competitors -- to basic generic words that no one would be able to trademark as generic to their goods, services and industries. Kathy Kleiman:Tx for including me! Rubens Kuhl:@Kathy, Apple sounds pretty generic to me... (ducks) Susan Payne 2:Rubens - only for apples Paul McGrady:@Kathy - all were free to apply. Terri Agnew:Next call: New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues will take place on Thursday, 27 April 2017 at 21:00 UTC. avri doria:we will of course need to talk about this issue until we fnd a way forward. Greg Shatan:Competition shouldn Cheryl Langdon-Orr (CLO):bye for now.... yes indeed Avri Robert Burlingame:Bye avri doria:bye & thanks Greg Shatan:Sorry will complete thought on list.

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 13 April
by Julie Hedlund April 13, 2017

April 13, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 13 April. 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 13 April Closed Generics -- Looked at the pros and cons on our last call based on the public comments. There was an update to the RAA that restricted closed generics. -- On the last call we didn't have a lot of feedback on the cons, more on the pros. Intention today is to take another looking at the cons and see what kind of harms there are. -- Asked staff to put together the types of harms that are identified. Found different categories of harm. -- Are these harms asserted as potential harms, or identified harms? Rather than identify we will say "mentioned". From what we gathered from the public comments these are how commenters identified potential harms. -- Let's call these "alleged harms." -- Majority of the comments talked about a harm to competition. There also mention of harm to the public interest and legal principles referenced, mentions of ICANN Bylaws and GNSO advice. Also the RAA code of conduct. Threat to open internet, cultural harm, trademark-related harm. Harm to competition (page 1 of the document) -- Comments from last call we noted harm to competition was raised by competitors. -- Might want to look at a finding by the International Chamber of Commerce on .mobile. CTIA objected to at least one application on the grounds that it was a closed generic will all traffic going to one CTIA member. Language about harms to business communities: https://iccwbo.org/publication/exp_499_icann_116_expert-determination/. -- Think there were several community objections did relate to unfair competition. -- Something to bear in mind in relation to competition: there was to some extent some benefit that another brand owner might seek a closed generic might not be a bad thing for us (BBC). Some spaces could be safeguarded from greater abuse. -- When you are faced with a number of TLDs and defensively registering your brand. Say you are in the food industry and .food is a closed generic it saves you the money on registrations. -- Kathy's example is not fully helpful. I think that decision came in a pre-determined outcome. There is nothing prohibiting closed generics -- it wasn't until after applications came in. Then the GAC piled on citing competition harms without real hard data. Then the snowball effect. If we going to reopen this issue I do think we owe it to open it from the beginning. I think we have to go back and do a real review, but I'm not sure it's worth it. -- There was a request that we look into this. As for going back and doing a review, I am open to suggestions. NGPC resolution (since disbanded). Don't know if it would carry as a Board resolution. -- Do want to make sure we are looking at what has been said about alleged harms. -- Not in a postion for laying out the case for why this exploded the Internet community in 2012/2013. So the ICANN Board stepped in. Need to hear the arguments. -- The intention in this call is to address the cons on closed generics -- pros were covered on the last call. -- If there were no prospects and an application for a closed generics was on hold an applicant might have decided to withdraw it. -- Board told everyone that you would have to open up your string or sit in the penalty box until the next round. Don't think we need to stick to the .com model. There are newer models. >From the chat: Paul McGrady: GNSO Policy on new gTLDs actually didn't prohibit or even mention closed generics. Kathy Kleiman: Many drafters of the Applicant Guidebook felt very strongly that Closed Generics were barred by the rules. Paul McGrady: Why were non of the pro-closed generics comments from the last round included in this document? Seems either a big oversight or one-sided designed to lead us all to a particular conclusion. Paul McGrady: But we are only seeing what 1 side has said. Why aren't we looking at what the other side said? Michael Flemming: We have gone over the Pros in the last call. Could you be clear what the other side would be? Susan Payne: @Kathy, that might have been the intention of some, but I don't think that was what the wording of the AGB said Kathy Kleiman: @Susan, the response in 2012 and 2013 was considerable! https://iccwbo.org/publication/exp_499_icann_116_expert-determination/ I think the determination stands on its own - worth reading! Susan Payne: @Kathy, what do you mean the response in 2012/2013? Kathy Kleiman: The letters and articles written in 2012 and 2013 - some circulated earlier today. Many with group signatures. Susan Payne: yes but my point is that is not what the AGB says, that is what some people wrote after the event surely avri doria: Even if we don't reopen it, we need to be explicit. One of the deficits in the previous policy is that we were not specific about approving closed generics, we just assumed that of course they would be ok. note: we did not even have a name for them back then. Cheryl Langdon-Orr (CLO): indeed Avri Paul McGrady: +1 Avri Cheryl Langdon-Orr (CLO): not sure we have any consensus on that Kathy... I don't agree they are " by definition " Good Steve Chan: @Paul, the NGPC was empowered by the Board to pass resolutions. Therefore, NGPC resolutions are ICANN Board resolutions. Cheryl Langdon-Orr (CLO): rather that this needs discussion Paul McGrady: @Kathy - that was the pre-round 1 model ICANN Bylaws, Affirmations of Commitments, GNSO Advice, and Registry Agreement Code of Conduct (page 3) -- Two things here: Not sure what relevant GNSO Council advice there is on this. -- Why don't we read the Code of Conduct and see if there is anything about it? While we are looking for the exact text, that certainly was one of the items that was discussed. One of the comments people were making is it could be open to all registrars, but I don't think we ever dug deeply down that line of argument in terms of to what degree -- when you make a deal with a registrar you have to make the same deal with everyone. Don't think that one was resolved. (reading from the Code of Conduct, Specification 9, page 282-283) -- Doesn't seem to restrict closed generics. -- Not very specific comments relating to Bylaws, etc. Threat to Open Internet (page 4) (Reading from post from Michele Neylon: https://www.internetnews.me/2013/02/23/5-reasons-why-closed-generic-new-gtl….) >From the chat: Rubens Kuhl: Although not always mentioned, closed generics can bring inovation as well to the DNS. .frogans is one example of the usage type that can go in that direction. Paul McGrady: @Kathy - I love him, but Michele's business is selling second level domain names, so closed generics are contrary to his business model, but that doesn't make them against the public interest Susan Payne 2: the difficulty is that all of these arguments assume that all we want are a whole series of .com alternatives. where is the innovation in that Liz Brodzinski: +1 Susan Rubens Kuhl: So the question is how to close the door to misuse without forbidding possible good uses. Paul McGrady: @Kathy - no competitors were blocked out of closed generics - all were welcome to apply for them Rubens Kuhl: Also of notice is that most of the anger against closed generics came specifically regarding .book. Kathy Kleiman: @Paul - of course we are closing off competitors -- to basic generic words that no one would be able to trademark as generic to their goods, services and industries. Kiran malancharuvil: Agree with Paul and Susan Payne 2 (identity theft??)

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