Work Track 2: Single Base Agreement
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. * 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. * 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. * 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. * 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. * 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 trust that the above makes sense and I look forward to your feedback. Regards, Raymond Zylstra<https://au.linkedin.com/in/raymondzylstra> Neustar Inc. / Director - Policy and Compliance Level 8, 10 Queens Road, Melbourne, Australia VIC 3004 Office +61 3 9866 3710 Mobile +61 416 177 615 / Raymond.Zylstra@neustar.biz<mailto:Raymond.Zylstra@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> Follow Neustar: LinkedIn<http://www.linkedin.com/company/5349> / Twitter<http://www.twitter.com/neustar> Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.
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 <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
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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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 <javascript:_e(%7B%7D,'cvml','rubensk@nic.br');>> wrote:
On Oct 2, 2016, at 8:21 PM, Zylstra, Raymond <Raymond.Zylstra@neustar.biz <javascript:_e(%7B%7D,'cvml','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
_______________________________________________ Gnso-newgtld-wg-wt2 mailing list Gnso-newgtld-wg-wt2@icann.org <javascript:_e(%7B%7D,'cvml','Gnso-newgtld-wg-wt2@icann.org');> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt2
As the guy that negotiated every RA with every applicant and drafted the final version of Spec 13, I disagree with Michael that ICANN wasn't equipped to understand brand concerns - it was a case, as is always case for ICANN, of not feeling kevin kreuser senior assistant general counsel | GoDaddy™ kkreuser@godaddy.com<mailto:kkreuser@godaddy.com> 602-420-4121<tel:602-420-4121> (o) / 480-258-7957<tel:480-258-7957> (m) This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments. On Oct 2, 2016, at 9:09 PM, Greg Shatan <gregshatanipc@gmail.com<mailto: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<mailto: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<javascript:_e(%7B%7D,'cvml','rubensk@nic.br');>> wrote: On Oct 2, 2016, at 8:21 PM, Zylstra, Raymond <Raymond.Zylstra@neustar.biz<javascript:_e(%7B%7D,'cvml','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 _______________________________________________ Gnso-newgtld-wg-wt2 mailing list Gnso-newgtld-wg-wt2@icann.org<javascript:_e(%7B%7D,'cvml','Gnso-newgtld-wg-wt2@icann.org');> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt2 _______________________________________________ Gnso-newgtld-wg-wt2 mailing list Gnso-newgtld-wg-wt2@icann.org<mailto:Gnso-newgtld-wg-wt2@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt2
Hi Kevin, Thanks for the feedback. Perhaps my wording could've been chosen better, but I do think they were equipped. I do not mean any offense in regards to that. The response timing we received from ICANN in the past in regards to contracts was timely even if the overall process was slower than expected. I believe ICANN took necessary measures to have the legal staff and advice to negotiate agreements. Just as you say, not understanding/feeling. It is at times difficult for brands to get ICANN to realize why a certain provision is not necessary applicable to brands. ICANN will provide the reasoning behind the provision and how it applies to gTLDs overall, and then brands will provide their response. To me, it seems to be a longer conversation than necessary. Michael Flemming On Mon, Oct 3, 2016 at 1:26 PM, Kevin Kreuser <kkreuser@godaddy.com> wrote:
As the guy that negotiated every RA with every applicant and drafted the final version of Spec 13, I disagree with Michael that ICANN wasn't equipped to understand brand concerns - it was a case, as is always case for ICANN, of not feeling
*kevin kreuser*
*senior assistant general counsel | **Go**Daddy™*
*kkreuser@godaddy.com <kkreuser@godaddy.com>*
*602-420-4121 <602-420-4121> (o) / 480-258-7957 <480-258-7957> (m)*
*This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments.*
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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Oy, sorry, cut off . . . ICANN is handcuffed by the terms and conditions agreed via the community process. When an individual applicant or group of applicants comes in after the public process has resolved requesting changes due to "extraordinary circumstances," ICANN must justify any changes it might accept in light of the opinion of every other applicant and constituency, whether it be the opinion of an IGO/GO, community, "brand" or other applicant or of the GAC, ALAC, etc. So I (personally) support having separate and unique agreements for distinct categories (assuming we properly define these categories) because it will help ICANN to enable and process these unique applications, but the distinctions need to ensure security and stability across all TLDs. kevin kreuser senior assistant general counsel | GoDaddy™ kkreuser@godaddy.com<mailto:kkreuser@godaddy.com> 602-420-4121<tel:602-420-4121> (o) / 480-258-7957<tel:480-258-7957> (m) This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments. On Oct 2, 2016, at 9:26 PM, Kevin Kreuser <kkreuser@godaddy.com<mailto:kkreuser@godaddy.com>> wrote: As the guy that negotiated every RA with every applicant and drafted the final version of Spec 13, I disagree with Michael that ICANN wasn't equipped to understand brand concerns - it was a case, as is always case for ICANN, of not feeling kevin kreuser senior assistant general counsel | GoDaddy™ kkreuser@godaddy.com<mailto:kkreuser@godaddy.com> 602-420-4121<tel:602-420-4121> (o) / 480-258-7957<tel:480-258-7957> (m) This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments. On Oct 2, 2016, at 9:09 PM, Greg Shatan <gregshatanipc@gmail.com<mailto: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<mailto: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<javascript:_e(%7B%7D,'cvml','rubensk@nic.br');>> wrote: On Oct 2, 2016, at 8:21 PM, Zylstra, Raymond <Raymond.Zylstra@neustar.biz<javascript:_e(%7B%7D,'cvml','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 _______________________________________________ Gnso-newgtld-wg-wt2 mailing list Gnso-newgtld-wg-wt2@icann.org<javascript:_e(%7B%7D,'cvml','Gnso-newgtld-wg-wt2@icann.org');> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt2 _______________________________________________ Gnso-newgtld-wg-wt2 mailing list Gnso-newgtld-wg-wt2@icann.org<mailto:Gnso-newgtld-wg-wt2@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt2
Thank you all for the feedback. I wanted to also make a note to mention, as Jeff likely has already done, that it is important for us to look at both pros and cons. In the last call we did not have much of the con side. I am thankful that Raymond has brought up these important points for us to look at. If we could be looking at both pros and cons and then have more discussion on that in the meeting this week, I think that would be very helpful for us to formulate our report to the overall group for recommendation. Michael Flemming On Mon, Oct 3, 2016 at 1:38 PM, Kevin Kreuser <kkreuser@godaddy.com> wrote:
Oy, sorry, cut off . . .
ICANN is handcuffed by the terms and conditions agreed via the community process. When an individual applicant or group of applicants comes in after the public process has resolved requesting changes due to "extraordinary circumstances," ICANN must justify any changes it might accept in light of the opinion of every other applicant and constituency, whether it be the opinion of an IGO/GO, community, "brand" or other applicant or of the GAC, ALAC, etc.
So I (personally) support having separate and unique agreements for distinct categories (assuming we properly define these categories) because it will help ICANN to enable and process these unique applications, but the distinctions need to ensure security and stability across all TLDs.
*kevin kreuser*
*senior assistant general counsel | **Go**Daddy™*
*kkreuser@godaddy.com <kkreuser@godaddy.com>*
*602-420-4121 <602-420-4121> (o) / 480-258-7957 <480-258-7957> (m)*
*This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments.*
On Oct 2, 2016, at 9:26 PM, Kevin Kreuser <kkreuser@godaddy.com> wrote:
As the guy that negotiated every RA with every applicant and drafted the final version of Spec 13, I disagree with Michael that ICANN wasn't equipped to understand brand concerns - it was a case, as is always case for ICANN, of not feeling
*kevin kreuser*
*senior assistant general counsel | **Go**Daddy™*
*kkreuser@godaddy.com <kkreuser@godaddy.com>*
*602-420-4121 <602-420-4121> (o) / 480-258-7957 <480-258-7957> (m)*
*This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments.*
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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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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Hi Kurt. Responses inline.
On Oct 3, 2016, at 8:53 PM, Kurt Pritz <kurt@kjpritz.com> wrote:
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.
Although I agree with the principle, I have to note that the current agreement is strongly biased towards traditional revenue-generating business models. Some aspects of that: - The fee is based on domains under management, which imply that domains are part of a revenue proposition, a cost factor to ICANN, or both. Neither is true for instance if a brand TLD registers millions of dictionary words to itself in a quest for search relevance. - Data escrow is required even for exclusive-use TLDs, where the single registrant of all domains is the TLD owner - Wildcard prohibition (but keeping dotless prohibition) could be revisited for exclusive-use TLDs - Requiring EPP for Brand and Exclusive-use TLD, while even having registrars that could be adequately solved by batch processes, different APIs - Requirement of registrars for all >100 domains (also mentioned by you below) - WHOIS service for Exclusive-use TLDs (for which the IANA WHOIS is enough) I know some people also group EBERO, CZDS and DNS SLA in requirements that could not apply for such TLDs, but I beg to differ and think of those as requirements for all gTLDs.
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.
Can we address those issues without a TARDIS ?
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.
The problem here is also principle x practice; ICANN has a strong track record in unreasonably withholding relief from provisions, including in the 2012 round Alternative Launch Programs (where only a couple TLDs endured the years to get those approved and even so strongly capped) and since the beginning of times the WHOIS Conflicts with national law issues. There is also within staff a bias towards "if something is not explicitly allowed then it's denied", which prevents such reasonable, sensible ideas from being used.
I think the "firm demand for separate agreements"that we talk about is really a demand for relief from certain contractual provisions.
For most clauses, yes. The ones involving fees, likely no.
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.
That would assume a source of reasonableness within ICANN as whole (not only staff) that comes very close to MLK's "I Have a Dream". I'm not trying to kill the dreamer, but asking to count on the dream requires a leap of faith. Rubens
participants (6)
-
Greg Shatan -
Kevin Kreuser -
Kurt Pritz -
Michael Flemming -
Rubens Kuhl -
Zylstra, Raymond