All: Without fully fleshing out my thoughts, which I hope to do shortly, I want to express my support for Ray's idea that there be one agreement. It was certainly courageous given the clamor for additional TLD categories. Here are a number of points to support my thinking: Crafting agreements for brands and other categories of registries opens the door to a myriad of categories that will be impossible to adequately develop. In a policy-level discussion, we will never be able to pre-determine the number of "categories" that might arise, nor the accommodations those category members might seek. In fact, it is presumptuous for us to do so. Our inability to score 100% on the test above leaves us in a position where, from time to time, we are asked to create new versions of the agreement for a new interest group or changes for an existing TLD-type that was inadequately considered at the outset. The door, once opened, will not be able to be closed. Having created a "modest" number of additional registry agreements, who are we (or who is ICANN) to reject bone fide requests for more? By omitting certain "categories," will we stifle a form of innovation or choice that will benefit us all? Better to leave the door open with a general approach. The one take away from the sTLD round in 2004 (and proven in the current round), is that structuring the TLD landscape according to categories does not work. In the most recent round, 90% of the pain in evaluations was a result of two types of categorization created by the Guidebook: community and geographic names. Community consideration of TLD applications did not work in the objection or CPE processes. Government approval of geo TLDs remains problematic. More categories = more objections, IRPs, litigation because ICANN is drawing artificial lines where there are a continuum of business and operating models. Quite a bit could be written about this but I cannot overemphasize the pain or underestimate the benefit caused by well-intended categorization of TLDs. To me, the more elegant, professional and policy-consistent approach is to develop a single agreement and processes for relief & criteria for certain provisions. I don't think there are many contractual provisions that are in play so this need not be complicated. The process / criteria generally are: Here is the provision Here is the policy reason for the provision Here is the reason why a specific relief request does not upset the policy. This, I believe, is how the brands positioned the argument to ICANN that there should be exception for brand-registered TLDs. But brands and other "categories" are not one-size fits all. E.g., why cannot a brand self-register some names for infra-structure purposes and allow registrar-made registrations for others? I agree that the current situation is a patch and the cure is a more flexible approach not a different, but still hard-wired categorization. Brands have two stakeholder groups advocating on their behalf, which is how they were able to undertake an individual negotiation with ICANN achieve accommodations in the registry agreement. Even with that, I have spoken an owner of brands that is dissatisfied with the current structure. I don't think any ICANN working group is situated to negotiate (because that is what this discussion is) on behalf of possible TLD category advocates for the accommodations that that group might deem suitable. Instead, exception to contractual provisions should be able to be routinely requested and not unreasonably withheld. I think the "firm demand for separate agreements"that we talk about is really a demand for relief from certain contractual provisions. I think the single-agreement approach has the potential to be long-lasting and adaptable and the multiple-ageement approach will be an inadequate attempt to address the current landscape. Thanks for taking the time to read through this. Sincerely, Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz On Oct 2, 2016, at 9:09 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I have to agree with Rubens and Michael, with the following additional thoughts:
Specification 13 was an after the fact "patch" on the Registry Agreement, because it was fundamentally not "fit for purpose" for .Brand registries. There's no reason to perpetuate a patch, which effectively changes the agreement anyway, when we have an opportunity to create an appropriate agreement for these registries.
Having a modest number of differing agreements sharing many common provisions is not going to cause "massive overhead" for anybody. This might a valid criticism if we were talking about hundreds of individual agreements drafted and negotiated from scratch or from totally different templates (as might happen if the applicants, rather than ICANN, submitted the first drafts of their agreements), but that's not what anybody's suggesting.
Greg
On Sunday, October 2, 2016, Michael Flemming <flemming@brightsconsulting.com> wrote: From my own personal opinion and not in my role as Co-Chair, I reply with the following.
I will have to echo Rubens in my opinion. I believe there is a firm demand for separate agreements because there exist many provisions within the 2012 RA that do not take into account the needs of different categories. Moreover, noting that the 2012 RA was built around the one-size fits all gTLD basis, it was not until we began asking ICANN for certain provisions/exemptions to the RA because they didn't apply to the outlook of that TLD that we saw progress in this area. I think that I can argue the point that ICANN has been very uncooperative in this area because they still think all TLDs must operate around the same outlook. Whenever I have a conversation with ICANN about dotBrands, the response is that ICANN has little experience, contractually and on a service level, with TLDs other than gTLDs that operated until the New gTLD program. We are seeing the development of new categories, that I believe we already have a consensus for in the overall working group, that have large issues that do not pertain to other categories. While it is likely that potential category based RAs will have a similar model and base for technical standards, it is necessary to build the contract with the outlook of the TLD in mind. Keeping the same contract we have puts forth too much constraint on the TLDs and limits the cooperation of ICANN to recognize how TLDs operate differently in the scope of their category. Furthermore, as Rubens pointed out, most TLDs will likely switch over to the separate agreements per their respective category in the future.
Regards,
Michael Flemming
On Mon, Oct 3, 2016 at 8:57 AM, Rubens Kuhl <rubensk@nic.br> wrote:
On Oct 2, 2016, at 8:21 PM, Zylstra, Raymond <Raymond.Zylstra@neustar.biz> wrote:
Dear all, I wanted to start the discussion on a question that was raised about the Base Agreement just prior to the end of the 22 September call – the question of ‘does a single base agreement make sense for all types of registries?’ and the need to have different agreements for different categories of TLDs.
I do not believe that the concept of multiple Registry Agreements is warranted. This is an important topic and I believe the discussion should be broader than simply answering the question as posed. Provided below are some issues I believe we should consider in order to respond to the question.
• Predictability – This is something that is often talked about, and also applies in this case. As an end user should I expect the same service levels and requirements of TLDs as I navigate the internet? I would argue yes. It seems that we could end up in a situation where 2012 Registry Operators have very different obligations.
That is already not the case, due to the existence of ccTLDs and gTLDs... 2012 Registry Operators would possibly move to the new portfolio of agreements.
• Level Playing Field – A level playing field is important for 2012 Applicants and Registry Operators and those future Applicants; introducing a different Registry Agreement for future Applicants may unfairly disadvantage those who have signed the 2012 Registry Agreement.
ICANN has moved most gTLDs with prior agreements to agreements that look a lot like 2012 RA, so that also doesn't hold.
• Status Quo – We currently have a Registry Agreement, albeit with additional Specifications, under which the various categories of TLDs can, and do, operate. While there are certainly situations where the Registry Agreement is not ideal, it is functional; there are things about it which we may not like, but they are not show stoppers.
Some situations would be show stoppers if ICANN actually exercised those, so that is still to be seen...
• Where Does the Problem Lie – As with many of you I have experienced many operational issues dealing with ICANN and their lack of understanding of the diverse business models for different TLDs. I don’t believe that having a different Registry Agreement will solve that issue, rather it is a case of working with ICANN to resolve those problems, and I for one have had some success with this.
Even if some success was achieved, that is still more stressful and costly that it should.
• Lengthy Process – Without question the development of, and agreement to, multiple Registry Agreements has the potential seriously compromise the timelines for the commencement of subsequent new gTLDs. Further, on the call brands were singled out; however, I am confident that many Registry Operators could argue some form of unique requirement which they believe required a unique Registry Agreement.
Actually I believe the call mentioned brand and exclusive use TLDs, both of which already have different specifications. Community TLDs also have a different specification, and there are also in the 2012 agreement a different version (not specification) for governmental entities. See https://www.icann.org/resources/agreement/rio-2014-02-27-en for one example that this is already in place in the 2012 agreement.
• Administrative Burden – The introduction of multiple Registry Agreements and dealing with these new agreements and the 2012 Registry Agreement will introduce massive overhead for ICANN, Registry Operators, Applicants, and service providers.
I agree with the overhead for ICANN, but not necessarily for ROs, applicants and SPs; if different agreements come with less requirements, that can be less overhead for those.
Rubens
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