July 2020 - Gnso-newgtld-wg

Re: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes
by Rubens Kuhl July 13, 2020

July 13, 2020

> On 13 Jul 2020, at 20:42, McGrady, Paul D. <PMcGrady(a)taftlaw.com> wrote: > > Hi Jim, > > I’m not opposed to transparency. I’m opposed to your proposal. As I said in my response, I think the transparency proposal Jeff made is best taken up within the discussion of the Guardrails, not in the context of your latest attempt to push everyone into early Vickrey auctions. As for your suggestion that I was “overwhelmed” by your proposal, I assure you I was not. I didn’t throw up my arms and say I was overwhelmed – I spent hours going through your proposal and came back with detailed comments which need to be addressed substantively. Suggesting that was somehow “overwhelmed” by giving detailed, substantive questions and comments to your various repackaged elements is a non sequitur. Yes, your proposal would allow payouts to those who end up in auctions, but many of those auctions would be unnecessary since there is little doubt that many contention sets would be eliminated by Objection processes, GAC Early Warnings, etc. etc. Your proposal does far more harm than good to the entire new gTLD process. Paul, It seems you are questioning the starting trigger for the process, not the process. What it would look like if that proposal clock would start at the end of objection deadline for contention sets with no objections, or after objection decision ? The same could apply to GAC Early Warning and/or timely GAC Advice. > > Let’s build the Guardrails around the status quo and get this final report out. Do you mean guardrails and transparency ? Rubens > > Best, > Paul > > > From: Jim Prendergast <jim(a)GALWAYSG.COM <mailto:jim@GALWAYSG.COM>> > Sent: Monday, July 13, 2020 4:41 PM > To: McGrady, Paul D. <PMcGrady(a)taftlaw.com <mailto:PMcGrady@taftlaw.com>>; Pruis, Elaine <epruis(a)verisign.com <mailto:epruis@verisign.com>> > Cc: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: RE: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Paul – I’m really stumped by your objection to adding more transparency to a portion of the program that not only concerns the Board, but the GAC, ALAC and several others. > > I’m sorry you were overwhelmed by the compromise proposal but compared the discussions we had the last few weeks on SPIRT, it’s quite simple. > > Since you have mischaracterized a key portion of it a few times, let me make it abundantly clear. My proposal still allows for your clients to get paid if they lose an auction. There is no ban. > > Jim Prendergast > The Galway Strategy Group > +1 202-285-3699 > > From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of McGrady, Paul D. > Sent: Monday, July 13, 2020 4:07 PM > To: Pruis, Elaine <epruis(a)verisign.com <mailto:epruis@verisign.com>> > Cc: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Hi Elaine, > > I wish there was a way to make the issues list shorter. Jim’s proposal touches on so many issues and undoes so much of the work of this WG over the last 4 years on so many sections of the AGB that there is no way to boil it down to an easy soundbite. If we are going to discuss, again, the rejected ideas of banning private auctions and Vickrey auctions before evaluation (and I see no reason why we would since these ideas are long dead in this WG), we will have to go through – in detail – the list of questions and concerns that I presented and any other questions and concerns raised by others. We should also go line by line through the draft report to see what other sections would have to be amended and then go through the 2012 AGB again to look for other consequences – intended or not. There isn’t any shortcut here I am afraid. > > Best, > Paul > > > > From: Pruis, Elaine <epruis(a)verisign.com <mailto:epruis@verisign.com>> > Sent: Monday, July 13, 2020 10:33 AM > To: McGrady, Paul D. <PMcGrady(a)taftlaw.com <mailto:PMcGrady@taftlaw.com>> > Cc: jeff(a)jjnsolutions.com <mailto:jeff@jjnsolutions.com>; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: RE: Re: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Forgive me. Today I’m a bit overwhelmed by so many words. > I’m hearing > -90 days is too short > 120 days > -you don’t want ICANN involved in contention resolution > Community selected auction provider > -You don’t want the private resolution to have transparency requirements > This is a either or and I think transparency is important > -You don’t want 200 competition authorities to review every deal > Ok let’s have one or two then > > What else? Could you sum up any concerns I missed with a few bullet points please? > No need to repeat “sweeping last minute proposal.” > Thanks > Elaine > > > On Jul 12, 2020, at 8:09 PM, McGrady, Paul D. <PMcGrady(a)taftlaw.com <mailto:PMcGrady@taftlaw.com>> wrote: > > > Thanks Elaine. I’m sorry, but I am not going to be able to buy the fiction that there is a problem. I know that those proposing to eliminate private auctions really, really need those of us who do not see the need to do so to buy into the unnamed, undocumented, non-data supported non-problem. But, we just can’t do so. But, that has not stopped me from proposing very reasonable guardrails for applications. The Guardrail Compromise has been what this WG has been working on for the last 3-4 weeks, as Jeff informed the GAC. Let’s focus on getting to a real compromise. > > Jeff & Cheryl, the bottom line on the new, sweeping, and invasive proposal is that it is merely a repackaged and rebranded attempt to eliminate private auctions and force everyone into early Vickrey auctions. It is not, as advertised, a compromise proposal at all. The proposal has especially deleterious consequences for .brand applicants, community based applicants, applicants with limited funds that might not even have to face an auction if a competitive string was eliminated by evaluation, anyone who still takes public comments seriously, the GAC Early Warning mechanism’s meaningfulness, the list goes on and on. > > Below are some initial questions raised by the new, sweeping proposal. These are all serious questions and concerns and if the WG is actually going to go down the path of discussing, again, the elimination of private auctions and the forcing of everyone into early Vickrey auctions (both ideas that have been rejected over and over again by this WG), these questions and concerns need to be given adequate time to be discussed (again). > > _______________ > > Objective: > Increase transparency and accountability in contention resolution to improve the perception of ICANN and the new gTLD program. > “Perception” by who? > Is the “perception” of ICANN a GNSO WG function, or is that better left to ICANN Org? > Will ICANN’s invasion into private sector affairs “improve the perception of ICANN”? (I think there is a sweeping assumption in the sweeping proposal – one which I do not share – namely that by making it difficult/impossible for private resolutions to occur resulting in filling ICANN’s coffers with more money that have and will raid/use to influence pet projects, will somehow “improve the perception of ICANN.” I think when a GC finds out unless her company can run the tight 90-day gauntlet below she will be forced into another $300 million + round of ICANN-controlled auctions, her reaction is not going to be “well, not being able to work things out between parties is terrific! Hooray ICANN.” > Have we taken in any advice from ICANN Org’s public relations department that changing the status quo in a manner that gives ICANN even more influence on private sector actors in the DNS (including a already proposed and now re-proposed capital punishment right) will, in fact, “improve the perception of ICANN”? > Where is the “perception” concern coming from? The ICANN Board comments, which some are relying upon to try to ban private auctions as the sweeping proposal does, doesn’t mention anything about the Board feeling that ICANN was being mal-perceived by anyone nor did it task us with fixing any PR problems for them. > “Transparency and Accountability” to who? > Do we really want to expand ICANN’s ability to open up the full books, trade secrets, and business plans of all contracted and accredited parties? One could almost see this idea having some tiny little legs if ICANN were still a government contractor. But now that ICANN is a private sector actor acting in conjunction with non-governmental contracts with other private sector actors, there is no rational basis to force the kinds of invasions that the sweeping proposal suggests. > Proposed process: > String Similarity evaluation completed > On Reveal Day, all contention sets are announced (number and entities are revealed) > A 90-day Resolution Period begins > > Ø From where did the 90-day deadline come? On its face it seems completely arbitrary. > Ø Was this based on an average of how long it took private sector actors to privately resolve contention sets in the last round? I don’t recall seeing any survey data on this or even hearing any anecdotal stories that would indicate that 90 days is sufficient. > Ø Was this based on a survey of likely future applicants? I don’t recall seeing any such survey results. > Ø Do we want to adopt a proposal that seems to help small, nimble players (private equity firms) or very large players in the domain name industry at the expense of any medium-large companies who happen to have adequate corporate governance? 90 days doesn’t even seem like enough time to identify and conduct due diligence on a JV or the like, much less get a deal to close (remember, once an application is withdrawn, it can’t be re-filed, so we are only talking about deals that can be identified, papered, pass corporate governance, be funded, and closed in 90 days). The timeframe suggested is highly unrealistic. > Ø What about GAC Early warnings, GAC Advice, public comments, various objections, etc.? Will all of those be in and resolved within the 90 days of reveal? That is not how things worked last time and I don’t see anything in the draft report so far that indicates that this is how it will work in future rounds. To even consider this sweeping proposal, we would have to take a look at all of the other timelines or just reject the idea generally that the objection processes have any meaning. > Ø This deadline excludes .brand applicants from using the Legal Rights Objection. It seems very unlikely that a .brand applicant that is in the middle of a trademark dispute triggered by reveal (and which would normally proceed to a Legal Rights Objection) (which has ZERO possibility of being resolved within the 90 days by the way) would, at the same time be negotiating a JV with a party that it believes is a top level squatter. All of this appears to be a last minute attack on .brand applicants. > Ø What other objection processes would the sweeping proposal render void? There doesn’t seem to be any concern whatsoever about those in this last minute proposal. We would need to study each objection process to see how the 90 day deadline would affect them. > Ø Leaves no time to address wrong outcomes for string similarity > Members of a contention set may > > Ø “…May…” Overarching question: where in the bylaws is ICANN granted such sweeping powers to insist on imposing itself into the private affairs, plans, and trade secrets of applicants and to limit their range of options? This is Mission creep writ large. > Form a JV > Ø This is a non-option for .brands whose trademarks are being squatted upon by another applicant > Ø This may be a non-option for non-profit entity applicants who may or may not be able to form JVs with other entities, non-profit or otherwise > Ø This will not be an option for large sophisticated companies when the other party in the contention set is a small time actor or unknown or otherwise has a business model that is unappealing or shady. > Ø “Form a JV” may solve some problems, but it is not a one size fits all > Withdraw > > Ø Not a solution. Partial ICANN refund does not return all of your sunk costs (lawyers, advisors, time to develop use cases, etc.). May sound great to large corporations with limitless resources, but not so great for medium/small entities with an innovative use case or for large corporations with good governance. > > Find a creative private resolution > > > Ø Glad to see this idea here, but what does it mean? How does it interact with the new power that is being proposed below for ICANN that enables ICANN to preclude private auctions or auction like mechanisms? > Fail to resolve > > Ø This may sound benign, but instead of giving the entire runway prior to auction of final resort to find a solution that was given in the 2012, the parties are put into a 90 day pressure cooker. This appears to be designed to calcify contention sets to ensure more end up in ICANN last resort auctions (since not everyone will be OK with the heavy-handed “3rd Party Sealed Bid” auction (a completely new concept suggested at the very end of this PDP by the way) suggested below. > > Members of a contention set may NOT > Participate in a private auction or auction like mechanism. > > Ø Here is the heart of it. We have spent 4 years not reaching consensus on eliminating private auctions. Yet, here it is again, surrounded by lots of other confusing elements. But, it is here. And, it is not supported. > Ø What is an “auction like mechanism”? What is its scope? If a .brand applicant sends a demand letter to another entity in a contention set and they settle the matter with a settlement agreement in which the other entity withdraws its application and the .brand applicant pays some amount, is that an “auction like mechanism”? Why would we invite ICANN into private settlements of disputes? Why would we compromise our trademarks by agreeing to this? This is the second apparent attack on .brand applicants I’ve noted in this sweeping proposal. Is that a coincidence? > > No later than the close of the 90-day Resolution Period, remaining contention sets will be required to provide ICANN with their decision on how to resolve the contention. They will have decided to: > Agree to create a partnership or other form of joint venture that would allow two or more applicants within a contention set to jointly run and/or operate the applied for string. Application Change Request requirements will apply, including public comment period. > Agree to participate in a sealed bid “3rdParty Auction” which is overseen by ICANN. Proceeds are distributed amongst the losing applicants in the contention set. > Agree to participate in an ICANN Auction of Last Resort using the sealed bids. Proceeds go to ICANN Auctions Proceeds fund. > > This section appears to be a repackaging of the prior section, so my questions and comments should be brought down into this section as well, including but not limited to pointing out that the timing involved is wildly impractical for any business with any sort of corporate governance in place. The timing also appears to misunderstand completely the role of public comment, GAC Early Warnings, Community Evaluation, and the Objection mechanisms that we have all worked so hard on these past 4 years. This single-minded distaste for private auctions is truly a tail that looks to upend the dog. > > Auctions of Last Resort and 3rd Party Auctions will take place immediately after the 90 day Private Resolution Period > > For all the reasons mentioned above, advancing the timeline on the historic ICANN auction of last resort and the completely new 3rd Party Auctions simply doesn’t work. This is appears to be a final stab at advancing the timeline for the auctions of last resort adding a Vickrey element (an idea that has already been rejected by the WG) while throwing in the new 3rd Party Auctions concept (which itself is just a form of the accelerated Vickrey option). There simply isn’t bandwidth to re-litigate everything that the proponents of this last minute, sweeping proposal were unable to accomplish over the last four years. > > For 3rd Party Auctions > All auctions are conducted as sealed bids by the same auction provider ICANN chooses for Last Resort auctions. The applicant that submitted the highest sealed bid amount pays the second-highest bid amount. The auction provider must attest that the participants fully disclosed all information and followed the rules before the funds are released to the losers. > > This is, essentially, a renamed version of the early “vickrey auction” which was rejected by the WG. The fact that the funds are dispersed to the losers who were forced into this option by a 90 day, arbitrary deadline (which essentially eliminates any real possibility of private solutions) is of little comfort. Further, how would an auction provider “attest” these requirements? What information is “all information”? Would this require the turning over of trade secrets to the auction vendor and the opposing party? > > All bids for all unresolved contention sets are due on the same date, no more than 30 days after reveal of contention sets/into the resolution period. Auctions for contention sets involving objections, CPE or other outstanding accountability challenges may be delayed but bids are still due no more than 30 days after reveal of contention sets/into the resolution period. > > “May be delayed…” is of little comfort since public comment, GAC Early Warnings, Community Evaluations, and the outcome of Objection processes all have a bearing on the value of the TLD string and, in fact, whether or not a contention set even survives to auction. This latest forced Vickrey model (no matter what it is euphemistically named or marketed as) is in its essence the early Vickrey model that did not get consensus. > > All auctions are to be conducted in an identical fashion using publicly available procedures. > > I have no idea what this means. What are the publicly available procedures and where can we find them? Is there a link? What is it that we are being asked to agree to? Does “identical fashion” mean at the same time on the same day? All of this last minute stuff is incredibly vague. > > All auctions should be finalized as quickly as possible after the 90-day deadline. > > Why not? Everything else about this proposal is a ridiculous forced march. > > All results are disclosed on a similar timeline as ICANN auctions of last resort from 2012 round, which was usually 72 hours. All parties partaking in the auction as well as winning bidder and amount paid are disclosed. > > Ø Not only does this ignore all of the problems with the forced 90-day timing, this is also a giant leap from the suggestion Jeff made a few days ago about perhaps requiring disclosure of the financial results from private auctions. I wouldn’t mind seeing that chiseled away from this otherwise sweeping proposal and discussed in the context of guardrails, but discussing it in the context of the 90 day forced march is fruitless. > Ø Does the losing applicant get a refund? If so, how much? If no, why not? > > Auctions of Last Resort > > All bids for all unresolved contention sets are due on the same date, no more than 30 days after reveal of contention sets/into the resolution period. Auctions for contention sets involving objections, CPE or other outstanding accountability challenges may be delayed but bids are still due no more than 30 days after reveal of contention sets/into the resolution period. > On the auction date, the applicant that submitted the highest sealed bid amount pays the second-highest bid amount. > Once payment is received, the applicant may proceed to evaluation and eventually the Transition to Delegation. > > This paragraph clearly evidences why the sweeping proposal is nothing but an elimination of private auctions and a clever attempt to force everyone into an early Vickery auction. The only differences between the “3rd Party Auction” and the Auction of Las Resort is who gets the money, with one exception. There appears to be a veiled threat in not choosing auction of last resort as the auction of last resort winner “may proceed to evaluation and eventually the Transition to Delegation.” There is no mention of this next step for the “3rd Party Auction” winner, so it appears that those applications go into some sort of limbo? > > > In the unlikely event that a winning bidder in either auction format does not pass evaluation (none failed in 2012), the next highest bidder is selected for evaluation. > > What happens in the event of non-payment by the winner of either of the two versions of the resubmitted early Vickrey auctions? > > Bottom line is that this is all just a repackaging of the early vickrey option that the WG has already rejected. It is very late in the day to entertain a repackaging and rebranding of long rejected ideas. The WG should spend its time refining my proposed Guardrails. While I do not believe there is a problem to be solved here, my guardrails will ensure that anyone who might be applying without an intent to operate the registry is on notice not to do so. > > Requirements: > Add T&Cs warning applicants that they may not participate in any of the following activities (Prohibited Application Activities): > They shall not submit applications largely for the purpose of financially benefiting from the resolution of contention sets > > This is essentially another way to rephrase my Guardrail #2. I have no problem with the concept, of course, but I do not think it functions well in the heavy-handed context that is being proposed. > > During the 90-day Resolution Period, they will not participate in the resolution of contention sets where non-winning applicants receive financial benefit to withdraw. > > Ø Please see my comments above about how this would cripple settlement between a .brand applicant and another entity that the .brand applicant believes is a top level squatter > Ø Why would someone become a JV partner with someone else if there was no financial benefit in doing so? This new requirement vitiates even the JV option (which while not useful for many applicants, at least it was something). > Ø What does financial benefit mean? If the applicant withdraws because it knows it will lose the forced-march-early-Vickrey-auction, doesn’t it financially benefit from cutting its losses early? > > The Registry Agreement must include a mandatory Public Interest Commitment stating that the registry: > has not submitted applications for the purpose of financially benefiting from the resolution of contention sets. > has not participated in an auction or auction like mechanisms outside of the ICANN 3rdparty and ICANN Auction of Last Resort. > agrees to punitive measures for violations listed above, which may include the potential loss of the registry as well as a bar on participation in any future rounds (both for the individuals as well as the entities (and their affiliates) involved. > > These are the very same ridiculous punishments – capital punishment for registries - that the WG has already reviewed and rejected. Why are we even seeing this again? There is no way to repackage and rebrand these to make them palatable. These would also steep ICANN in litigation should it try to kill a registry operator. Even if this WG were inclined to grant ICANN the right to kill off registries for allegedly violating these requirements, we would need to spend weeks fleshing out what the punishments are and what the process (trial and appeal) would look like. > > The auction provider must agree to fully disclose all information about the auctions > The auction provider must assert that all rules were followed before releasing auction funds > All contention set resolutions including creative resolutions, 3rd Party Auction and ICANN Auctions of last resort must be submitted by ICANN to relevant competition authorities for review. > This would bring the next round to a halt. Not only is this extreme overkill by any imagination, how long do the evaluators have to wait to hear back from 200+ competition authorities? > Benefits: > Full transparency, ICANN oversight and competition authority review mitigate community concerns about nefarious activity. > Many others and myself do not agree that giving more power to ICANN to interfere in private matters of its contracted parties is automatically a benefit. I certainly do not agree that the brand new idea of grinding future rounds to a halt while 200+ competition authorities fail to respond to inquiries is a benefit to anyone except registries already in existence. > Unlike the 2012 round, access to data from this point forward can inform future policy making efforts in the program. > At least the proponents of this late entry admit that they have no data from the last round to support their policy-making effort. We should at least attempt the Guardrails and, should an actual problem come into existence, then consider other options at that time. A heavy-handed solution for a non-problem based on non-data is not only misguided, it is obviously premature. > Private auctions are eliminated but applicants can still receive proceeds from a 3rd Party Auction if all applicants in a contention set agree. > At least the proponents of this late entry come clean and admit that it eliminated private auctions and that it is not somehow another form of them. > Sealed bids tend to result in lower auction prices so decreased auctions proceeds to ICANN fund. > All of this regulation and red tape is a very high price to pay for *possible* lower auction prices. A party involved in a private auction is free to walk away at any price point it likes. It doesn’t need an ICANN nanny to help it not bid too much. > Speeds up the process allowing more applicants to withdraw applications prior to evaluations resulting in greater refund amounts and faster processing of remaining applications. > It may speed up the process, but at great cost to actually creating more entries, and therefore, competition in the domain name space. It also undoes all of our work on objections, GAC Early Warnings, etc. > > > > > From: Pruis, Elaine <epruis(a)verisign.com <mailto:epruis@verisign.com>> > Sent: Saturday, July 11, 2020 9:26 AM > To: McGrady, Paul D. <PMcGrady(a)taftlaw.com <mailto:PMcGrady@taftlaw.com>>; jeff(a)jjnsolutions.com <mailto:jeff@jjnsolutions.com> > Cc: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: Re: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Paul, > I’m surprised by your comments. Especially surprising because of your concern that the WG conversation on closed generics was shut down prematurely, and you’ve been pushing for more conversation on that topic. What’s the hurry now with contention resolution? > We’ve got a reasonable proposal to consider and discuss. It was sent to the list and introduced to the WG on the 11pm July 1st, where we agreed to table the conversation until Jeff was back and we would have enough time to dig into the details. Folks have had 10 days to study it, and many people prepared for the discussions that have been scheduled and delayed twice. > The “discussed for months” aspects are the compromise positions proposed. It wraps in Kristina’s ask for creative resolution, Donna’s proposal to allow for auctions, your proposal for guardrails, Jeff’s proposal for transparency, the sealed bid auction proposal. It is not “last minute” any more than your guardrails are last minute. There not “rearranged”, they’re all included. We’re not forced to pick one, we can have them all. > Continuing to deny there is a problem ignores the Board statement, CCTRT recommendations, and the GAC advice on the topic. > Please let’s try to get to a compromise on this issue. > > Elaine Pruis > Senior Director Naming Operations and Policy > epruis(a)verisign.com <mailto:epruis@verisign.com> > 703.948.4672 > <image003.png> > > > From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "McGrady, Paul D." <PMcGrady(a)taftlaw.com <mailto:PMcGrady@taftlaw.com>> > Date: Friday, July 10, 2020 at 9:27 AM > To: Jeff Neuman <jeff(a)jjnsolutions.com <mailto:jeff@jjnsolutions.com>> > Cc: "gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org>> > Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Thanks Jeff, > > The issue became moot because we ran out of time on the last call. Good job putting the finishing touches on the SPIRT! > > Regarding your email below, I was puzzled by Jim’s assertion that all of the substantive elements of his second version of his last minute proposal “are the same and have been discussed by this group for months.” I am not at all sure that this statement is accurate (as far as I know, the new ICANN-controlled-not-“auction of last resort”-mechanism appears to be new, sweepingly invasive, and suggested just a few days ago right as this PDP is winding down). Even so, if all of the substantive elements in Jim’s second version of the last minute proposal have been discussed by this group for months as Jim suggests, why are we taking this up again? > > While I will have more to say on the list regarding the flaws in Jim’s last minute plan (stay tuned), if what Jim says is accurate, discussing a mere repackaging of elements that “have been discussed by this group for months” and rejected doesn’t seem like a good use of anyone’s time. Bringing back old rejected ideas, rearranging them, and then presenting them as new, especially at the last minute, runs the risk of derailing our progress to tweaks to the status quo to address presumptive concerns about abusive applications. > > We will be far better served to continue our progress of the last several weeks and spend the majority of what time remains to look over and refine the guardrails to the status quo that I have suggested as a compromise position. And, it is a compromise position because many, many of us simply have yet to hear of a compelling problem that needs to be solved and believe the status quo is just fine. But, my guardrails are an olive branch to try to address whatever it is that a portion in this WG seem worried about. > > Best, > Paul > > > > From: Jeff Neuman <jeff(a)jjnsolutions.com <mailto:jeff@jjnsolutions.com>> > Sent: Thursday, July 9, 2020 11:43 AM > To: Jim Prendergast <jim(a)GALWAYSG.COM <mailto:jim@GALWAYSG.COM>> > Cc: McGrady, Paul D. <PMcGrady(a)taftlaw.com <mailto:PMcGrady@taftlaw.com>>; Julie Hedlund <julie.hedlund(a)icann.org <mailto:julie.hedlund@icann.org>>; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: RE: Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Thanks Jim. Paul – given Jim’s statements that his changes were for clarity and not substantive, I believe we can discuss it on the call in a few hours. > > <image004.png> > Jeff Neuman > JJN Solutions, LLC > Founder & CEO > +1.202.549.5079 > Vienna, VA 22180 > Jeff(a)JJNSolutions.com <mailto:Jeff@JJNSolutions.com> > http://jjnsolutions.com <http://jjnsolutions.com/> > > From: Jim Prendergast <jim(a)GALWAYSG.COM <mailto:jim@GALWAYSG.COM>> > Sent: Thursday, July 9, 2020 12:38 PM > To: Jeff Neuman <jeff(a)jjnsolutions.com <mailto:jeff@jjnsolutions.com>> > Cc: McGrady, Paul D. <PMcGrady(a)taftlaw.com <mailto:PMcGrady@taftlaw.com>>; Julie Hedlund <julie.hedlund(a)icann.org <mailto:julie.hedlund@icann.org>>; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > No substantive differences Jeff. Edits for clarity and more logical ordering. All the substantive elements are the same and have been discussed by this group for months. > > The new text is the compromises contained because that it what you asked the group to do. > > Original email from July 1 is posted immediately below. > > From: Jim Prendergast <jim(a)GALWAYSG.COM <mailto:jim@GALWAYSG.COM>> > Date: July 1, 2020 at 4:26:50 PM EDT > To: "gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org>> > Subject: [Gnso-newgtld-wg] Compromise proposal on Auctions > > In the interest of compromise and in hopes of not reverting to the 2012 rules and thereby ignoring the Board’s request that we make a recommendation on this issue, please consider this proposal to allow contention resolution via creative means as well as auctions, with guardrails and tweaks made to the well-received hybrid proposal. > > It is a blend of many of the compromise solutions proposed. It also accommodates those who do not want ICANN to end up with all auction proceeds but at the same time minimizes the entire pool of money committed, thereby not disadvantaging single applicants. > > Objective: > Increase transparency and accountability in contention resolution to improve the perception of ICANN and the new gTLD program. > > Proposed process: > String Similarity evaluation completed > On Reveal Day, all contention sets are announced (number and entities are revealed) > A 90-day Resolution Period begins > Members of a contention set may > Form a JV > Withdraw > Find a creative private resolution > Fail to resolve > Members of a contention set may NOT > Participate in a private auction or auction like mechanism. > No later than the close of the 90-day Resolution Period, remaining contention sets will be required to provide ICANN with their decision on how to resolve the contention. They will have decided to: > Agree to create a partnership or other form of joint venture that would allow two or more applicants within a contention set to jointly run and/or operate the applied for string. Application Change Request requirements will apply, including public comment period. > Agree to participate in a sealed bid “3rdParty Auction” which is overseen by ICANN. Proceeds are distributed amongst the losing applicants in the contention set. > Agree to participate in an ICANN Auction of Last Resort using the sealed bids. Proceeds go to ICANN Auctions Proceeds fund. > Auctions of Last Resort and 3rd Party Auctions will take place immediately after the 90 day Private Resolution Period > For 3rd Party Auctions > All auctions are conducted as sealed bids by the same auction provider ICANN chooses for Last Resort auctions. The applicant that submitted the highest sealed bid amount pays the second-highest bid amount. The auction provider must attest that the participants fully disclosed all information and followed the rules before the funds are released to the losers. > All bids for all unresolved contention sets are due on the same date, no more than 30 days after reveal of contention sets/into the resolution period. Auctions for contention sets involving objections, CPE or other outstanding accountability challenges may be delayed but bids are still due no more than 30 days after reveal of contention sets/into the resolution period. > All auctions are to be conducted in an identical fashion using publicly available procedures. > All auctions should be finalized as quickly as possible after the 90 day deadline. > All results are disclosed on a similar timeline as ICANN auctions of last resort from 2012 round, which was usually 72 hours. All parties partaking in the auction as well as winning bidder and amount paid are disclosed. > Auctions of Last Resort > All bids for all unresolved contention sets are due on the same date, no more than 30 days after reveal of contention sets/into the resolution period. Auctions for contention sets involving objections, CPE or other outstanding accountability challenges may be delayed but bids are still due no more than 30 days after reveal of contention sets/into the resolution period. > On the auction date, the applicant that submitted the highest sealed bid amount pays the second-highest bid amount. > Once payment is received, the applicant may proceed to evaluation and eventually the Transition to Delegation. > In the unlikely event that a winning bidder in either auction format does not pass evaluation (none failed in 2012), the next highest bidder is selected for evaluation. > > Requirements: > Add T&Cs warning applicants that they may not participate in any of the following activities (Prohibited Application Activities): > They shall not submit applications largely for the purpose of financially benefiting from the resolution of contention sets > During the 90-day Resolution Period, they will not participate in the resolution of contention sets where non-winning applicants receive financial benefit to withdraw. > The Registry Agreement must include a mandatory Public Interest Commitment stating that the registry: > has not submitted applications for the purpose of financially benefiting from the resolution of contention sets. > has not participated in an auction or auction like mechanisms outside of the ICANN 3rdparty and ICANN Auction of Last Resort. > agrees to punitive measures for violations listed above, which may include the potential loss of the registry as well as a bar on participation in any future rounds (both for the individuals as well as the entities (and their affiliates) involved. > The auction provider must agree to fully disclose all information about the auctions > The auction provider must assert that all rules were followed before releasing auction funds > All contention set resolutions including creative resolutions, 3rd Party Auction and ICANN Auctions of last resort must be submitted by ICANN to relevant competition authorities for review. > > Benefits: > Full transparency, ICANN oversight and competition authority review mitigate community concerns about nefarious activity. > Unlike the 2012 round, access to data from this point forward can inform future policy making efforts in the program. > Private auctions are eliminated but applicants can still receive proceeds from a 3rd Party Auction if all applicants in a contention set agree. > Sealed bids tend to result in lower auction prices so decreased auctions proceeds to ICANN fund. > Speeds up the process allowing more applicants to withdraw applications prior to evaluations resulting in greater refund amounts and faster processing of remaining applications. > > > > On Jul 9, 2020, at 12:08 PM, Jeff Neuman <jeff(a)jjnsolutions.com <mailto:jeff@jjnsolutions.com>> wrote: > > Jim, > > Can you highlight what differences (if any) are in your more refined proposal? > > Thanks. > > <image001.png> > Jeff Neuman > JJN Solutions, LLC > Founder & CEO > +1.202.549.5079 > Vienna, VA 22180 > Jeff(a)JJNSolutions.com <mailto:Jeff@JJNSolutions.com> > http://jjnsolutions.com <http://jjnsolutions.com/> > > From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of McGrady, Paul D. > Sent: Thursday, July 9, 2020 11:34 AM > To: Jim Prendergast <jim(a)GALWAYSG.COM <mailto:jim@GALWAYSG.COM>>; Julie Hedlund <julie.hedlund(a)icann.org <mailto:julie.hedlund@icann.org>>; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Thanks Jim. Your first proposal was a very complex 11thhour “solution” to a problem that has yet to be identified. Now, there is another version of the 11th hour submission. Respectfully, all of this proposed reengineering should have been introduced months ago instead of all the digging in that was done by opponents of private resolutions. The ideas in here are sweeping and we are trying to get a final report out of the door. > > Co-chairs, if there is an intention to take up version 2 of Jim’s proposal in the next call, I really must ask for more time than just a few hours before the call to dig through it. No one has time to unpack what the proposed changes to the last minute ideas here are, much less have time to understand the consequences and unintended consequences of the second last minute proposal. Since my additional safeguards build on the last 3-4 weeks of work by the WG, I am happy to address those on the next call if the agenda permits, but I don’t think it is fair to force a discussion of this new submission from Jim within less than 24 hours of it going out on the list. > > Best, > Paul > > > > > To receive regular COVID-19 updates from Taft, subscribe here <https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit <https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. > > This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. > > From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast > Sent: Wednesday, July 8, 2020 8:21 PM > To: Julie Hedlund <julie.hedlund(a)icann.org <mailto:julie.hedlund@icann.org>>; gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > In the event we get to Agenda Item 3 tomorrow, below is a more refined version of the Compromise Proposal I circulated on July 1. > > I’d like to ask the Co-Chairs and Staff to add it to the working document so it is more easily displayed to those participating in the Zoom call tomorrow. > > Objective: > Increase transparency and accountability in contention resolution to improve the perception of ICANN and the new gTLD program. > > Compromises contained > > Some WG participants wanted an opportunity for creative resolutions to contentions via JVs and other corporate structuring. > 90-day window to negotiate and announce those to ICANN. > Some WG participants expressed a strong desire for losers in auctions to get paid. Others were concerned ICANN would “line its pockets” if all auctions were auctions of Last Resort. > Parties in a contention set may opt for an ICANN administered 3rd Party Auction where losers get paid as opposed to ICANN. > Advocates for Vickery Auction wanted sealed bids submitted at time of application to eliminate possibility of collusion. Others raised concerns about the burden on applicants who would not be in a contention set. > Only parties in contention sets will have to submit a sealed bid. Bids will be submitted 30 days into the 90 Day Resolution Period. > While this does not eliminate the collusion concerns, it does narrow the window for that type of activity to occur. > Advocates for “applicant support” applicants and single TLD applicants were concerned with the 2012 practice of rolling private auctions proceeds from one auction to another to overwhelm a single applicant or applicants who receive applicant support. > Conducting all 3rd party Auctions at the same time eliminates this. > Benefits of the Compromise Proposal: > Full transparency, ICANN oversight and competition authority review mitigate community concerns about nefarious activity and add legitimacy to the process. > Unlike the 2012 round, access to data from this point forward can inform future policy making efforts in the program. > Private Auctions are eliminated but applicants can still receive proceeds from a 3rd Party Auction if all applicants in a contention set agree. > Research shows sealed bids result in lower auction prices so decreased auctions proceeds to ICANN in Last Resort auctions. > The compromise position increases efficiency and speeds up the process allowing more applicants to withdraw applications prior to evaluations resulting in greater refund amounts and faster processing of remaining applications. In 2012 millions of dollars were wasted on evaluations of applications that never had a chance of operating a TLD and those applicants had to wait years to get significantly reduced refunds from withdrawing. > Proposed process: > String Similarity evaluation completed > On Reveal Day, ICANN announces contention sets including names of applicants. > A 90-day Resolution Period begins > Members of a contention set may > Form a JV or other corporate structure > Find a different creative resolution > Withdraw > Fail to resolve > Members of a contention set may not > Participate in a private auction or auction like mechanism. > 30 days into the Resolution Period, all parties in a contention set will be required to submit a sealed bid for each string for which they are in a contention set. > If a JV, other corporate structure, or different creative resolution process is utilized, bids are destroyed and never revealed. > If at the end of the 90-day Resolution Period, parties chose one of the two auction paths, bids submitted will be used for the auction the contention set decides to participate in. > As part of AGB and communications plan, ICANN must make potential applicants aware that they should be considering these bids, including securing financing where necessary, as part of their business planning and application process. > No later than the close of the 90-day Resolution Period, remaining contention sets will be required to provide ICANN with their decision on how to resolve the contention. They will have decided to: > Agree to create a partnership or other form of joint venture that would allow two or more applicants within a contention set to jointly run and/or operate the applied for string. Application Change Request requirements will apply, including public comment period and ICANN would have to approve. > Agree to participate in a sealed bid “3rd Party Auction” which is overseen by ICANN. Proceeds are distributed amongst the losing applicants in the contention set. > If parties are unable to agree to either of the two previous options, an ICANN Auction of Last Resort will be conducted using the sealed bids. Proceeds go to ICANN Auctions Proceeds fund. > Auctions of Last Resort and 3rd Party Auctions will take place as soon as possible after the 90 day Private Resolution Period and before application evaluation takes place. > For 3rd Party Auctions > All auctions are conducted as sealed bids by the same auction provider ICANN chooses for Last Resort auctions. The applicant that submitted the highest sealed bid amount pays the second-highest bid amount. The auction provider and ICANN must attest that the participants fully disclosed all required information and followed the rules before the funds are released to the losers. > As discussed previously, All bids for all unresolved contention sets are due on the same date, no more than 30 days after reveal of contention sets/into the resolution period. Auctions for contention sets involving objections, CPE or other outstanding accountability challenges may be delayed but bids are still due no more than 30 days after reveal of contention sets/into the resolution period. > All auctions are to be conducted in an identical fashion using publicly available procedures. > All results are disclosed on a similar timeline as ICANN auctions of last resort from 2012 round, which was typically 72 hours. All parties partaking in the auction as well as winning bidder and amount paid are disclosed. > Auctions of Last Resort > If parties fail to form a JV or other Corporate structure, find a different creative resolution, or participate in a 3rd Party Auction, bids submitted during the 90 Day Resolution Period will be used. Auctions for contention sets involving objections, CPE or other outstanding accountability challenges may be delayed but bids are still due no more than 30 days after reveal of contention sets/into the resolution period. > On the auction date, the applicant that submitted the highest sealed bid amount pays the second-highest bid amount. > Once payment is received, the applicant may proceed to evaluation and eventually the Transition to Delegation. > In the unlikely event that a winning bidder in either auction format does not pass evaluation (none failed in 2012), of fails because of a CPE determination or outstanding accountability challenge, the next highest bidder is selected for evaluation. > > Requirements: > Add T&Cs warning applicants that they may not participate in any of the following activities (Prohibited Application Activities): > They shall not submit applications largely for the purpose of financially benefiting from the resolution of contention sets > During the 90-day Resolution Period, they will not participate in the resolution of contention sets where non-winning applicants receive financial benefit to withdraw and not participate in the operation of the TLD. > The Registry Agreement must include a mandatory Public Interest Commitment stating that the registry: > has not submitted applications for the purpose of financially benefiting from the resolution of contention sets. > has not participated in an auction or auction like mechanisms outside of the ICANN 3rd Party and ICANN Auction of Last Resort. > Agrees to punitive measures for violations listed above, which may include the potential loss of the registry as well as a bar on participation in any future rounds (both for the individuals as well as the entities (and their affiliates) involved. > The auction provider must agree to fully disclose all information about the auctions as requested by ICANN. > The auction provider and ICANN must assert that all rules were followed before releasing auction funds. > All contention set resolutions including JVs, creative resolutions, 3rd Party Auction and ICANN Auctions of last resort must be referred by ICANN to relevant competition authorities for review. > > Jim Prendergast > The Galway Strategy Group > +1 202-285-3699 > > From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Julie Hedlund > Sent: Monday, July 6, 2020 2:50 PM > To: gnso-newgtld-wg(a)icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: [Gnso-newgtld-wg] Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 09 July at 20:00 UTC for 90 Minutes > > Dear WG Members, > > Please find below the proposed agenda for the WG meeting on Thursday, 09 July 2020 at 20:00 UTC for 90 minutes. > > Proposed Agenda: > > Review Agenda/Updates to Statements of Interest > Review the updated Predictability Framework, see: https://docs.google.com/document/d/1vBckhFQCCQ-zyvfGGcDB3NWQhodVsffdqbyb6kT… <https://docs.google.com/document/d/1vBckhFQCCQ-zyvfGGcDB3NWQhodVsffdqbyb6kT…>. Also attached, please find the updated concerns/mitigation document and process flow. > Review Private Resolutions/Auctions: Hybrid Proposal 2+ and Proposal 4: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZ… <https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZ…> > AOB > > If you need a dial out or would like to submit an apology, please email gnso-secs(a)icann.org <mailto:gnso-secs@icann.org>. > > Best, > Julie > Julie Hedlund, Policy Director > > > > > > > > > > >

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Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
by trachtenbergm＠gtlaw.com July 13, 2020

July 13, 2020

Anne, For clarity, I do not believe that the Board ignored or rejected the GAC advice re closed generics. Rather I think the Board simply kicked the can down the line so they didn’t have to deal with this issue at the time. My comment was more general in nature that the Board has ignored or rejected GAD Advice before and that the GNSO and this group are not required to follow GAC advice. Just because the GAC issues advice it does not mean that such advice is right and/or what is best for the community. Otherwise it would not be “advice” – it would be GAC “instruction” or “order” and this would not be a bottom up consensus policy development process. I think it is interesting how some insist that we must follow the GAC advice when it suits their purpose. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Monday, July 13, 2020 11:33 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com>; alexander(a)schubert.berlin Subject: RE: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Marc, Surely you cannot believe that the Board “ignored or rejected GAC Advice” on Closed Generics. It was the reason the Board passed a resolution giving applicants for Closed Generics the alternatives it gave them. I am pretty sure that if you check the background on the Resolution, you will find reference to that GAC Advice, which, as I understand from GAC members, stands under the ByLaws even going into the next round unless modified by formal GAC Consensus Advice to the contrary. This is unless and until the Board overturns that advice by a 60% majority pursuant to the ByLaws. This is why I tried to introduce into our draft Sub Pro document some questions the Board could ask to evaluate a Closed Generic string from the standpoint of serving the public interest. As you know, no new policy was agreed and there was no agreement in the WG on the fallback status quo. To say the Board ignored or rejected GAC Advice is simply inaccurate. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Monday, July 13, 2020 6:45 AM To: alexander(a)schubert.berlin<mailto:alexander@schubert.berlin> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ I deny that. The requirement for generic strings to serve the public interest was merely GAC advice, which neither the GNSO or this group is bound by, and the Board has ignored or rejected before. Best Regards, Marc H.Trachtenberg Shareholder Greenberg Traurig, LLP 77 West Wacker Drive Chicago, IL 60601 Office (312) 456-1020 Mobile (773) 677-3305 On Jul 13, 2020, at 8:26 AM, Alexander Schubert <alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Dear Greg, A long read but worth it (excellently written): Especially: “If you agree, then we must create a policy that allows generic strings serving a public interest goal, with sufficient guidance so that this policy can be implemented with predictability. I think anything less goes back to the GNSO Council to resolve. We can't make this go away by inaction; it will wander among us as an unfulfilled policy objective, haunting us until we bring it peace.” You seem to agree that we have to act within the boundaries of public interest. If we all here can agree to it: then a path forward is much clearer. So a simple question: * Do we have WG members that deny the requirement for closed generics having to serve the public interest (“serving a public interest goal”)? Because in my memory this was where we always got derailed in the past: I remember that some WG members denied the requirement for public interest. Thanks, Alexander From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Monday, July 13, 2020 7:23 AM To: Marc Trachtenberg <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Cc: Alexander Schubert <alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text All, I've been following this thread and I've gone back to look at the Beijing Communique and the Board Resolution and Rationale and think this through. I apologize for the length of this post, but at least it's my first in this thread. I think the Board was attempting to take a nuanced position. The Board did not exactly adopt the GAC Advice, but neither did they reject it. To some extent, they kicked the can down the road, and here we are. We can start with the GAC advice, which was disarmingly simple: "For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC advice did not ban closed generics. The GAC advice could have allowed a closed generic to proceed in the prior round -- if the TLD met the safeguard of "serving a public interest goal." It appears that the Board looked into making this happen; unfortunately, there was no existing capability to make a "public interest goal" determination. The Rationale shows that the Board asked the GNSO to provide policy guidance on this point, perhaps hoping to fill this gap. The GNSO demurred, based on timing concerns and the Council's limited remit (and perhaps to avoid de facto "negotiations" with the GAC). The Board was thus left with no way forward to implement closed generics in the last round, unless they (a) rejected GAC advice (which the Board has generally sought to avoid) or (b) allowed Org to create a public interest test under the guise of "implementation" (which would have opened several Pandora's boxes). Thus, the Board couldn't truly adopt the GAC advice in the prior round. The Board resolution did not ban closed generics either. A ban would have been at odds with the GAC advice, which expressly offered guardrails for closed generics. In this spirit, the Board created three options. None of these provided the result the GAC advice envisioned, but neither did they reject the GAC advice. Most importantly, a path forward for closed generic applications is among the options. None of the three options -- switch, withdraw or wait until the next round -- allowed a closed generic application to proceed in the prior round, but the "wait" option preserved closed generic applications for consideration in the next round (i.e., this round). So, not a ban. But permission with a major caveat -- GNSO policy was needed to make this wrork But where does that leave us? Can we say the Board accepted the GAC advice? The Board did not expressly say so, and the Resolution does not clearly characterize its relationship to the GAC advice. The "Resolved" clause follows the spirit of the GAC advice, recognizing it could not be put in place for that round: the Board "requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program." The Board falls short on clarity; it does not require the PDP outcome to include the "public interest goal" criterion. Perhaps the Board didn't want to be seen as dictating a policy outcome to the GNSO. But it's clear what the Board wanted. The last paragraph of the Rationale supports this, saying that "The adoption of the GAC advice will have a positive impact on the community because it will assist with resolving the GAC advice concerning the New gTLD Program." If this is meant to say that the Board adopted the GAC advice, it's awfully vague, and of course, the GAC advice can't be adopted in practice without a PDP-created "public interest goals" test and method for applying for and reviewing closed generic applications. Taking all this into account, it seems apparent that the goal of both the GAC and the Board was to allow closed generics to proceed if, and only if, there was a public interest goal requirement. And it was the Board's expectation that we would make this happen. In the end, this tells us what we should have done -- or more optimistically what we could still do. But it does not tell us what the status quo would be if we failed. The GNSO Council is quoted in the Board's Rationale with what could be their version of the status quo: "The GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not.'" That is certainly the status quo of 2007 and 2012, but it is not the status quo of 2015. The Board Resolution is not a prohibition, but it is also not a self-evaporating decision (which I once thought it was). If our general rule is that the status quo is the AGB as implemented and with all Board decisions included, then I think we stick with that rule here. I think that means that the status quo is this: Closed generic TLDs may be applied for in this round, in the hope that a public interest goals requirement could still be put in place for the round. If not, those applications can opt to switch to open, withdraw, or wait for the next round. This could be simplified to say that the status quo is that closed generic TLDs will be allowed with a public interest goals requirement, but that this requirement must be defined in this PDP or a subsequent one. In that case, we have failed the status quo. Such failure should be rewarded neither with a "ban" or an "open season." Instead, we have an "incomplete." If you agree, then we must create a policy that allows generic strings serving a public interest goal, with sufficient guidance so that this policy can be implemented with predictability. I think anything less goes back to the GNSO Council to resolve. We can't make this go away by inaction; it will wander among us as an unfulfilled policy objective, haunting us until we bring it peace. Greg On Sun, Jul 12, 2020 at 7:20 PM Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>> wrote: The bottom line at this point is that the only reason to include anything other than what the Board actually resolved is to add commentary supporting a particular point of view on whether closed generics should be allowed and if so, when. The only thing we can agree upon is that we can't agree. So let the Board speak for itself and people who read the report can interpret it as they will. Best Regards, Marc H.Trachtenberg Shareholder Greenberg Traurig, LLP 77 West Wacker Drive Chicago, IL 60601 Office (312) 456-1020 Mobile (773) 677-3305 On Jul 12, 2020, at 4:29 PM, Alexander Schubert <alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>> wrote: *EXTERNAL TO GT* Dear Jeff, Let me start by highlighting your good stewardship in this group. I am amazed how you lead us - and how you orbit around all aspects of this PDP. Very good job. Regarding the ".disaster" example: That's the problem with examples; they initially make sense - but when diving into details: they might turn out not so good. In the case of the Red Cross applying for any generic term based new gTLD: just because their work is so extraordinary humanitarian doesn't mean any potential generic gTLD is deemed to be worthy to be taken by them. So when people poked holes in this example then less as to prove no example can be given - but more to prevent having an insufficient example in our WG report. Thanks, Alexander Sent from my Samsung device -------- Original message -------- From: Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: 7/12/20 18:36 (GMT+02:00) To: George Sadowsky <george.sadowsky(a)gmail.com<mailto:george.sadowsky@gmail.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks George for keeping the dialogue going and I think this is very helpful. So, I presented an example before (and in) the initial report that I came up with. The example was an application for .disaster by the International Red Cross. The application (made up by me) was to have second level names given to specific disasters to serve as the official Red Cross fund raiser for these events. Examples include HurricaineMaria.disaster, covid19VA.disaster, covid19UK.disaster, etc. Users would know that if they went to these sites and donated, that the money would actually be going to the official Red Cross and to official sources. The goal would be to drastically reduce the amount of fraud to end users from fake fundraising campaigns. Those that opposed closed generics did not agree that this would be good enough. They argued that generic words should be open to all “competitors” and why should the Red Cross monopolize a word/string. They come from the very traditional view that second level domains should be available to all (with restrictions). It is a view of end users being the registrants of domains as opposed to end users being those that use the Internet in general. Opponents argued “why couldn’t they just apply for .redcross” or “why cant they just make it open”? So essentially it became a debate about words and generic ness and who has a right to them as opposed to looking at the application itself to see if it served a public interest goal. When it became apparent that even in this humanitarian extreme example that members of the working group were unwilling to consider the application that we decided to end the discussion because it was clear that no example would satisfy the “serving a public interest goal” to members of the group. I hope that helps explain a little bit more how we got here and that we have indeed tried to discuss some examples. Get Outlook for iOS<https://urldefense.com/v3/__https:/aka.ms/o0ukef__;!!DUT_TFPxUQ!VFYmMUj6rLq…> ________________________________ From: George Sadowsky <george.sadowsky(a)gmail.com<mailto:george.sadowsky@gmail.com>> Sent: Sunday, July 12, 2020 9:35:12 AM To: Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Cc: Kleiman Kathy <kathy(a)kathykleiman.com<mailto:kathy@kathykleiman.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> <gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks, Jeff, for a thorough and and balanced response. I have several comments and suggestions, interspersed in the text below. On Jul 11, 2020, at 11:50 PM, Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>> wrote: Thanks George. This is helpful, but I am not sure that any part of the Board resolution or rationale necessarily supports the notion that the default position be an outright ban. In reading the resolution and rationale again, one could read that as meaning that the board was not looking to ban closed generics altogether, but was looking for guidance as to how applications for closed generics could be evaluated as “serving a public interest goal.” _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg(a)icann.org<mailto:Gnso-newgtld-wg@icann.org> https://urldefense.com/v3/__https://mm.icann.org/mailman/listinfo/gnso-newg…<https://urldefense.com/v3/__https:/mm.icann.org/mailman/listinfo/gnso-newgt…> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://urldefense.com/v3/__https://www.icann.org/privacy/policy__;!!DUT_TF…<https://urldefense.com/v3/__https:/www.icann.org/privacy/policy__;!!DUT_TFP…> ) and the website Terms of Service (https://urldefense.com/v3/__https://www.icann.org/privacy/tos__;!!DUT_TFPxU…<https://urldefense.com/v3/__https:/www.icann.org/privacy/tos__;!!DUT_TFPxUQ…> ). 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5 11

Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
by trachtenbergm＠gtlaw.com July 13, 2020

July 13, 2020

Anne, To be clear again, I am not saying that you personally are saying we must follow GAC advice because it is convenient for your viewpoint and I am glad to see that you agree that the Board is not required to follow it and neither are we. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Monday, July 13, 2020 12:10 PM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com>; alexander(a)schubert.berlin Cc: gnso-newgtld-wg-bounces(a)icann.org Subject: RE: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks Marc. As we all know, GAC Advice is covered under the ByLaws, just like GNSO policy development. GNSO policy advice can be overturned with a 2/3 majority of the Board and GAC Consensus Advice can be overturned via a 60% majority of the Board. Just being realistic about the existing GAC Advice. As you may have noted, I do that regardless of the topic. Anne From: trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Monday, July 13, 2020 10:00 AM To: Aikman-Scalese, Anne <AAikman(a)lrrc.com<mailto:AAikman@lrrc.com>>; alexander(a)schubert.berlin<mailto:alexander@schubert.berlin> Cc: gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org> Subject: RE: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Anne, For clarity, I do not believe that the Board ignored or rejected the GAC advice re closed generics. Rather I think the Board simply kicked the can down the line so they didn’t have to deal with this issue at the time. My comment was more general in nature that the Board has ignored or rejected GAD Advice before and that the GNSO and this group are not required to follow GAC advice. Just because the GAC issues advice it does not mean that such advice is right and/or what is best for the community. Otherwise it would not be “advice” – it would be GAC “instruction” or “order” and this would not be a bottom up consensus policy development process. I think it is interesting how some insist that we must follow the GAC advice when it suits their purpose. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac(a)gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Monday, July 13, 2020 11:33 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; alexander(a)schubert.berlin<mailto:alexander@schubert.berlin> Subject: RE: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Marc, Surely you cannot believe that the Board “ignored or rejected GAC Advice” on Closed Generics. It was the reason the Board passed a resolution giving applicants for Closed Generics the alternatives it gave them. I am pretty sure that if you check the background on the Resolution, you will find reference to that GAC Advice, which, as I understand from GAC members, stands under the ByLaws even going into the next round unless modified by formal GAC Consensus Advice to the contrary. This is unless and until the Board overturns that advice by a 60% majority pursuant to the ByLaws. This is why I tried to introduce into our draft Sub Pro document some questions the Board could ask to evaluate a Closed Generic string from the standpoint of serving the public interest. As you know, no new policy was agreed and there was no agreement in the WG on the fallback status quo. To say the Board ignored or rejected GAC Advice is simply inaccurate. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Monday, July 13, 2020 6:45 AM To: alexander(a)schubert.berlin<mailto:alexander@schubert.berlin> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ I deny that. The requirement for generic strings to serve the public interest was merely GAC advice, which neither the GNSO or this group is bound by, and the Board has ignored or rejected before. Best Regards, Marc H.Trachtenberg Shareholder Greenberg Traurig, LLP 77 West Wacker Drive Chicago, IL 60601 Office (312) 456-1020 Mobile (773) 677-3305 On Jul 13, 2020, at 8:26 AM, Alexander Schubert <alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>> wrote: Dear Greg, A long read but worth it (excellently written): Especially: “If you agree, then we must create a policy that allows generic strings serving a public interest goal, with sufficient guidance so that this policy can be implemented with predictability. I think anything less goes back to the GNSO Council to resolve. We can't make this go away by inaction; it will wander among us as an unfulfilled policy objective, haunting us until we bring it peace.” You seem to agree that we have to act within the boundaries of public interest. If we all here can agree to it: then a path forward is much clearer. So a simple question: * Do we have WG members that deny the requirement for closed generics having to serve the public interest (“serving a public interest goal”)? Because in my memory this was where we always got derailed in the past: I remember that some WG members denied the requirement for public interest. Thanks, Alexander From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Monday, July 13, 2020 7:23 AM To: Marc Trachtenberg <trachtenbergm(a)gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Cc: Alexander Schubert <alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text All, I've been following this thread and I've gone back to look at the Beijing Communique and the Board Resolution and Rationale and think this through. I apologize for the length of this post, but at least it's my first in this thread. I think the Board was attempting to take a nuanced position. The Board did not exactly adopt the GAC Advice, but neither did they reject it. To some extent, they kicked the can down the road, and here we are. We can start with the GAC advice, which was disarmingly simple: "For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC advice did not ban closed generics. The GAC advice could have allowed a closed generic to proceed in the prior round -- if the TLD met the safeguard of "serving a public interest goal." It appears that the Board looked into making this happen; unfortunately, there was no existing capability to make a "public interest goal" determination. The Rationale shows that the Board asked the GNSO to provide policy guidance on this point, perhaps hoping to fill this gap. The GNSO demurred, based on timing concerns and the Council's limited remit (and perhaps to avoid de facto "negotiations" with the GAC). The Board was thus left with no way forward to implement closed generics in the last round, unless they (a) rejected GAC advice (which the Board has generally sought to avoid) or (b) allowed Org to create a public interest test under the guise of "implementation" (which would have opened several Pandora's boxes). Thus, the Board couldn't truly adopt the GAC advice in the prior round. The Board resolution did not ban closed generics either. A ban would have been at odds with the GAC advice, which expressly offered guardrails for closed generics. In this spirit, the Board created three options. None of these provided the result the GAC advice envisioned, but neither did they reject the GAC advice. Most importantly, a path forward for closed generic applications is among the options. None of the three options -- switch, withdraw or wait until the next round -- allowed a closed generic application to proceed in the prior round, but the "wait" option preserved closed generic applications for consideration in the next round (i.e., this round). So, not a ban. But permission with a major caveat -- GNSO policy was needed to make this wrork But where does that leave us? Can we say the Board accepted the GAC advice? The Board did not expressly say so, and the Resolution does not clearly characterize its relationship to the GAC advice. The "Resolved" clause follows the spirit of the GAC advice, recognizing it could not be put in place for that round: the Board "requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program." The Board falls short on clarity; it does not require the PDP outcome to include the "public interest goal" criterion. Perhaps the Board didn't want to be seen as dictating a policy outcome to the GNSO. But it's clear what the Board wanted. The last paragraph of the Rationale supports this, saying that "The adoption of the GAC advice will have a positive impact on the community because it will assist with resolving the GAC advice concerning the New gTLD Program." If this is meant to say that the Board adopted the GAC advice, it's awfully vague, and of course, the GAC advice can't be adopted in practice without a PDP-created "public interest goals" test and method for applying for and reviewing closed generic applications. Taking all this into account, it seems apparent that the goal of both the GAC and the Board was to allow closed generics to proceed if, and only if, there was a public interest goal requirement. And it was the Board's expectation that we would make this happen. In the end, this tells us what we should have done -- or more optimistically what we could still do. But it does not tell us what the status quo would be if we failed. The GNSO Council is quoted in the Board's Rationale with what could be their version of the status quo: "The GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not.'" That is certainly the status quo of 2007 and 2012, but it is not the status quo of 2015. The Board Resolution is not a prohibition, but it is also not a self-evaporating decision (which I once thought it was). If our general rule is that the status quo is the AGB as implemented and with all Board decisions included, then I think we stick with that rule here. I think that means that the status quo is this: Closed generic TLDs may be applied for in this round, in the hope that a public interest goals requirement could still be put in place for the round. If not, those applications can opt to switch to open, withdraw, or wait for the next round. This could be simplified to say that the status quo is that closed generic TLDs will be allowed with a public interest goals requirement, but that this requirement must be defined in this PDP or a subsequent one. In that case, we have failed the status quo. Such failure should be rewarded neither with a "ban" or an "open season." Instead, we have an "incomplete." If you agree, then we must create a policy that allows generic strings serving a public interest goal, with sufficient guidance so that this policy can be implemented with predictability. I think anything less goes back to the GNSO Council to resolve. We can't make this go away by inaction; it will wander among us as an unfulfilled policy objective, haunting us until we bring it peace. Greg On Sun, Jul 12, 2020 at 7:20 PM Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>> wrote: The bottom line at this point is that the only reason to include anything other than what the Board actually resolved is to add commentary supporting a particular point of view on whether closed generics should be allowed and if so, when. The only thing we can agree upon is that we can't agree. So let the Board speak for itself and people who read the report can interpret it as they will. Best Regards, Marc H.Trachtenberg Shareholder Greenberg Traurig, LLP 77 West Wacker Drive Chicago, IL 60601 Office (312) 456-1020 Mobile (773) 677-3305 On Jul 12, 2020, at 4:29 PM, Alexander Schubert <alexander(a)schubert.berlin<mailto:alexander@schubert.berlin>> wrote: *EXTERNAL TO GT* Dear Jeff, Let me start by highlighting your good stewardship in this group. I am amazed how you lead us - and how you orbit around all aspects of this PDP. Very good job. Regarding the ".disaster" example: That's the problem with examples; they initially make sense - but when diving into details: they might turn out not so good. In the case of the Red Cross applying for any generic term based new gTLD: just because their work is so extraordinary humanitarian doesn't mean any potential generic gTLD is deemed to be worthy to be taken by them. So when people poked holes in this example then less as to prove no example can be given - but more to prevent having an insufficient example in our WG report. Thanks, Alexander Sent from my Samsung device -------- Original message -------- From: Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: 7/12/20 18:36 (GMT+02:00) To: George Sadowsky <george.sadowsky(a)gmail.com<mailto:george.sadowsky@gmail.com>> Cc: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks George for keeping the dialogue going and I think this is very helpful. So, I presented an example before (and in) the initial report that I came up with. The example was an application for .disaster by the International Red Cross. The application (made up by me) was to have second level names given to specific disasters to serve as the official Red Cross fund raiser for these events. Examples include HurricaineMaria.disaster, covid19VA.disaster, covid19UK.disaster, etc. Users would know that if they went to these sites and donated, that the money would actually be going to the official Red Cross and to official sources. The goal would be to drastically reduce the amount of fraud to end users from fake fundraising campaigns. Those that opposed closed generics did not agree that this would be good enough. They argued that generic words should be open to all “competitors” and why should the Red Cross monopolize a word/string. They come from the very traditional view that second level domains should be available to all (with restrictions). It is a view of end users being the registrants of domains as opposed to end users being those that use the Internet in general. Opponents argued “why couldn’t they just apply for .redcross” or “why cant they just make it open”? So essentially it became a debate about words and generic ness and who has a right to them as opposed to looking at the application itself to see if it served a public interest goal. When it became apparent that even in this humanitarian extreme example that members of the working group were unwilling to consider the application that we decided to end the discussion because it was clear that no example would satisfy the “serving a public interest goal” to members of the group. I hope that helps explain a little bit more how we got here and that we have indeed tried to discuss some examples. Get Outlook for iOS<https://urldefense.com/v3/__https:/aka.ms/o0ukef__;!!DUT_TFPxUQ!VFYmMUj6rLq…> ________________________________ From: George Sadowsky <george.sadowsky(a)gmail.com<mailto:george.sadowsky@gmail.com>> Sent: Sunday, July 12, 2020 9:35:12 AM To: Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Cc: Kleiman Kathy <kathy(a)kathykleiman.com<mailto:kathy@kathykleiman.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> <gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks, Jeff, for a thorough and and balanced response. I have several comments and suggestions, interspersed in the text below. On Jul 11, 2020, at 11:50 PM, Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>> wrote: Thanks George. This is helpful, but I am not sure that any part of the Board resolution or rationale necessarily supports the notion that the default position be an outright ban. In reading the resolution and rationale again, one could read that as meaning that the board was not looking to ban closed generics altogether, but was looking for guidance as to how applications for closed generics could be evaluated as “serving a public interest goal.” _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg(a)icann.org<mailto:Gnso-newgtld-wg@icann.org> https://urldefense.com/v3/__https://mm.icann.org/mailman/listinfo/gnso-newg…<https://urldefense.com/v3/__https:/mm.icann.org/mailman/listinfo/gnso-newgt…> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://urldefense.com/v3/__https://www.icann.org/privacy/policy__;!!DUT_TF…<https://urldefense.com/v3/__https:/www.icann.org/privacy/policy__;!!DUT_TFP…> ) and the website Terms of Service (https://urldefense.com/v3/__https://www.icann.org/privacy/tos__;!!DUT_TFPxU…<https://urldefense.com/v3/__https:/www.icann.org/privacy/tos__;!!DUT_TFPxUQ…> ). 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2 2

Post-ICANN68 Policy Report Now Available
by Andrea Glandon July 13, 2020

July 13, 2020

Dear all, The Post-ICANN68 Policy Report is now available. Please click here to access it: https://go.icann.org/post68 [go.icann.org]<https://urldefense.com/v3/__https:/go.icann.org/post68__;!!PtGJab4!vFND8tB1…> Thank you. Andrea Glandon GNSO SO/AC Support Internet Corporation for Assigned Names and Numbers (ICANN) Skype ID: acglandon76 Find out more about the GNSO by visiting: https://learn.icann.org/ [learn.icann.org]<https://urldefense.com/v3/__https:/learn.icann.org/__;!!PtGJab4!vFND8tB1giA…> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO [twitter.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGN…> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…>

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Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
by Alexander Schubert July 13, 2020

July 13, 2020

Dear Jeff,Let me start by highlighting your good stewardship in this group. I am amazed how you lead us - and how you orbit around all aspects of this PDP. Very good job.Regarding the ".disaster" example:That's the problem with examples; they initially make sense - but when diving into details: they might turn out not so good. In the case of the Red Cross applying for any generic term based new gTLD: just because their work is so extraordinary humanitarian doesn't mean any potential generic gTLD is deemed to be worthy to be taken by them. So when people poked holes in this example then less as to prove no example can be given - but more to prevent having an insufficient example in our WG report.Thanks,Alexander Sent from my Samsung device -------- Original message -------- From: Jeff Neuman <jeff(a)jjnsolutions.com> Date: 7/12/20 18:36 (GMT+02:00) To: George Sadowsky <george.sadowsky(a)gmail.com> Cc: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks George for keeping the dialogue going and I think this is very helpful. So, I presented an example before (and in) the initial report that I came up with. The example was an application for .disaster by the International Red Cross. The application (made up by me) was to have second level names given to specific disasters to serve as the official Red Cross fund raiser for these events. Examples include HurricaineMaria.disaster, covid19VA.disaster, covid19UK.disaster, etc. Users would know that if they went to these sites and donated, that the money would actually be going to the official Red Cross and to official sources. The goal would be to drastically reduce the amount of fraud to end users from fake fundraising campaigns. Those that opposed closed generics did not agree that this would be good enough. They argued that generic words should be open to all “competitors” and why should the Red Cross monopolize a word/string. They come from the very traditional view that second level domains should be available to all (with restrictions). It is a view of end users being the registrants of domains as opposed to end users being those that use the Internet in general. Opponents argued “why couldn’t they just apply for .redcross” or “why cant they just make it open”? So essentially it became a debate about words and generic ness and who has a right to them as opposed to looking at the application itself to see if it served a public interest goal. When it became apparent that even in this humanitarian extreme example that members of the working group were unwilling to consider the application that we decided to end the discussion because it was clear that no example would satisfy the “serving a public interest goal” to members of the group. I hope that helps explain a little bit more how we got here and that we have indeed tried to discuss some examples. Get Outlook for iOS From: George Sadowsky <george.sadowsky(a)gmail.com> Sent: Sunday, July 12, 2020 9:35:12 AM To: Jeff Neuman <jeff(a)jjnsolutions.com> Cc: Kleiman Kathy <kathy(a)kathykleiman.com>; gnso-newgtld-wg(a)icann.org <gnso-newgtld-wg(a)icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks, Jeff, for a thorough and and balanced response. I have several comments and suggestions, interspersed in the text below. On Jul 11, 2020, at 11:50 PM, Jeff Neuman <jeff(a)jjnsolutions.com> wrote: Thanks George. This is helpful, but I am not sure that any part of the Board resolution or rationale necessarily supports the notion that the default position be an outright ban. In reading the resolution and rationale again, one could read that as meaning that the board was not looking to ban closed generics altogether, but was looking for guidance as to how applications for closed generics could be evaluated as “serving a public interest goal.”

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Public interest generic strings - a different approach
by George Sadowsky July 13, 2020

July 13, 2020

All, I'd like to outline a different approach to the issue of public interest generics, in the hope that it might (eventually?) contribute to a policy solution for this issue. This is only at the level of a thought experiment. Let's hypothesize the following: 1. The status quo is decided in one direction or another, or is even ignored. I not sure it matters with this approach. 2. There is an unquenchable demand for the possible creation of public interest generic string gTLDs, either for strings that have been identified already or for the emergence of possible such strings in the future. Therefore the GNSO policy has to have a provision for them. (You can use .disaster as a proxy for thinking about this, or not.) 3. Other top level generics, covering industries and markets will not be allowed. Only public interest generics will be allowed. (The arguments against this subset of generics depends upon a different type of public interest argument having a basis that the monopolization of the information space of an entire market by a single organization result in a concentration of power that is not in the public interest. Further the GAC is as likely to object to this in the future as they have in the past, and the new policy must either bypass GAC concerns or lead to a confrontation between the Board and the GAC. Given this scenario, what concerns would we have about delegating such domains to organizations. Each of us has some concerns including, but not limited to, competition among which organization should receive the delegation, control of inappropriate registrations (and who decides), profiteering (under some definition) by virtue of being chosen, and similar concerns. Now, rather than give up on the idea of adopting the public interest string in a gTLD, let's ask under what additional conditions would our concerns be largely or totally alleviated? After all, if there are organizations that think the concept is sufficiently important to invest in, and it appears that the GAC will accept the string as a legitimate public interest issue, shouldn't we work toward finding a good way to make it happen rather than saying, "There are too many difficulties with the concept, let's give it up." So here are some suggestions for the creation of a policy environment, approved by the GNSO and very likely to be acceptable to the ICANN Board and the GAC, that could allow such strings to exist with appropriate controls that we would feel comfortable with. [Bear in mind that this is written on the fly and is a rough sketch of what might happen, to indicate possibility of concept, not proof. The big question is whether this could be a worthwhile approach rather than if these details are the exactly correct ones.] 1. A new category of TLD is created for such strings, a little like the community status of the previous round. Let's name the category "Generic Public Interest Strings." Rationale: Attempts to fit closed pubic interest generics into structures from the previous round don't seem to work; a new category with new rules is needed for this category of string to work. 2. The applicant must be a not-for-profit organization. With some classes of exceptions permitted, second level registrants should also be not-for-profit organizations or governmental organizations. 3. The application should contain statements of support from initial second level registrants. The group should include a robust selection of organizations that have a material interest in the subject and can contribute through the domain to the public good. Challenges should be possible during the evaluation period. 4. The domain will have a management structure that recognizes the applicant as its leader but has in addition a council of leaders consisting of a representation of second level registrants. Additions and deletions to the registrant list, as well as any decisions regarding structural, behavioral and content issues are the responsibility of such a council that will develop its management charter. 5. The domain must have in it two prominent up to date entries. The first should be a detailed statement of purpose, and the second should be an updated annotated index of all second level registrants and the manner in which their domain can be used to contribute to the public interest related to the string. The first entry should be a part of the application and cannot be changed in any significant manner for the life of the gTLD except by rough consensus of the domain management group. (I strongly recommend a sensitive and insightful exposition of the meaning and implications of "rough consensus" is provided in RFC 7282 by Pete Resnick.) 6. If the domain is to change hands to another manager, the transfer must be judged on the basis of continuity and importance of purpose. The price of the domain will be limited to the original investment in the acquisition and operation of the domain, appropriately discounted, and capped by the increase in some measure such as the rate of inflation or the cost of capital increase during the period of current management, possibly with a multiplier and/or floor of some sort. Rationale: This will insure that public service rather than gain is the motivating factor for applying for the domain. I think that I would feel comfortable that a structure like this would ensure that the domain would adhere to its original public benefit purpose. Other structural approaches are possible also. This approach does require a new set of considerations for a new category. This may not be an easy task, and will take time, but it is not an impossible job. The result -- accommodation for including public interest generic gTLDs --should make such a development worthwhile and, assuming that one agrees with the list of hypotheses at the beginning of the list, directly addresses the possible resolution of existing generic string disputes. Comments? George ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ George Sadowsky Residence tel: +1.301.968.4325 8300 Burdette Road, Apt B-472 Mobile: +1.202.415.1933 Bethesda MD 20817-2831 USA Skype: sadowsky george.sadowsky(a)gmail.com http://www.georgesadowsky.org/

2 1

Re: [Gnso-newgtld-wg] Public interest generic strings - a different approach
by Alan Greenberg July 12, 2020

July 12, 2020

Thanks George, I've been meaning to join this thread all day, but other things pulled me away. That turns out to be fortuitous since I now have your proposal to comment on. To start, I will recount a proposal I made a few months ago. I too was trying to find some "middle ground" that could remove an absolute prohibition and yet satisfy what we suspect will be a GAC (and others - I count myself among them) reaction. I disagreed with the .disaster scenario suggested by Jeff (there are other worthy disaster relief organizations and it was not clear that a TLD run by the Red Cross would give them "equal space" - perhaps if run by the UN it could be acceptable..). But I accepted the concept that there may well be examples of such public interest TLDs. The lack of viable (in my not-so-humble opinion) examples was troublesome. The difficult problem is judging whether a particular application meets that criteria when we have never been able to clearly define what we mean by public interest, and would not likely be able to do so in the time-frame of this PDP. My only answer to this was that the ICANN Board is charged with deciding whether the public interest is being met, so let the Board decide on whether an application is acceptable or not. It quickly became obvious that there would be a hoard of such applications and the Board was not going to address a large number, so I suggested that only not-for-profits could apply. That met with a host of disagreements that for-profits could do good things too. I also believed that the decision on whether the public interest was met in the application had to be non-appealable, particularly if the field was opened to for-profits. That was felt to not be possible under our Bylaws. The proposal died an ignominious death soon after. Your proposal has the same intent and some of the same flavour as mine, but with more detail and hopefully it will get better support. Some specific comments: a) Although I can accept the concept that a for-profit might have altruistic intents, ultimately they report to their owners and likely shareholders. A TLD is for the long term, and I am uncomfortable with a for-profit having custody. Yes, we could add "guard rails" as we have discussed in other areas, but the comfort level is still not high, so I agree that not-for-profic is a likely requirement. You cover the edge case of "some exceptions", b) a major issue of whether the TLD will really be in the public interest, and how to define the "exceptions" is not addressed here and is the proverbial elephant in the room. We were not good at defining the rules for community or subsidized TLDs last time, and I have minimal hope we could do better with this new class this time given our history at not being able to define or even describe "public interest". Saying wise people "will know it when they see it" is not sufficient here. I still believe that only the Board is in the position to ultimately decide on what is in the public interest. Even if the Board were willing to take on this responsibility (not at all clear), the appeal process could draw this out indefinitely. c) I agree with the terms you describe on a transfer of control. And the fact that it is the ICANN Board that ultimately makes that decision reinforces my belief that the Board is the right place for the original go/nogo decision on whether the public interest is being met - perhaps preceded by a panel recommendation. d) As we saw with the .org debate, having an advisory council is probably mandatory, but how it is selected and just what powers it has can make or break the deal. e) As with my proposal, if we can agree on the non-profit aspect (even with some well articulated exception conditions), we may have a chance of doing this. That may reduce the numbers to a sufficiently low number to make it implementable. Alan At 2020-07-12 10:05 PM, George Sadowsky wrote: All, I'd like to outline a different approach to the issue of public interest generics, in the hope that it might (eventually?) contribute to a policy solution for this issue. This is only at the level of a thought experiment. Let's hypothesize the following: 1. The status quo is decided in one direction or another, or is even ignored. I not sure it matters with this approach. 2. There is an unquenchable demand for the possible creation of public interest generic string gTLDs, either for strings that have been identified already or for the emergence of possible such strings in the future. Therefore the GNSO policy has to have a provision for them. (You can use .disaster as a proxy for thinking about this, or not.) 3. Other top level generics, covering industries and markets will not be allowed. Only public interest generics will be allowed. (The arguments against this subset of generics depends upon a different type of public interest argument having a basis that the monopolization of the information space of an entire market by a single organization result in a concentration of power that is not in the public interest. Further the GAC is as likely to object to this in the future as they have in the past, and the new policy must either bypass GAC concerns or lead to a confrontation between the Board and the GAC. Given this scenario, what concerns would we have about delegating such domains to organizations. Each of us has some concerns including, but not limited to, competition among which organization should receive the delegation, control of inappropriate registrations (and who decides), profiteering (under some definition) by virtue of being chosen, and similar concerns. Now, rather than give up on the idea of adopting the public interest string in a gTLD, let's ask under what additional conditions would our concerns be largely or totally alleviated? After all, if there are organizations that think the concept is sufficiently important to invest in, and it appears that the GAC will accept the string as a legitimate public interest issue, shouldn't we work toward finding a good way to make it happen rather than saying, "There are too many difficulties with the concept, let's give it up." So here are some suggestions for the creation of a policy environment, approved by the GNSO and very likely to be acceptable to the ICANN Board and the GAC, that could allow such strings to exist with appropriate controls that we would feel comfortable with. [Bear in mind that this is written on the fly and is a rough sketch of what might happen, to indicate possibility of concept, not proof. The big question is whether this could be a worthwhile approach rather than if these details are the exactly correct ones.] 1. A new category of TLD is created for such strings, a little like the community status of the previous round. Let's name the category "Generic Public Interest Strings." Rationale: Attempts to fit closed pubic interest generics into structures from the previous round don't seem to work; a new category with new rules is needed for this category of string to work. 2. The applicant must be a not-for-profit organization. With some classes of exceptions permitted, second level registrants should also be not-for-profit organizations or governmental organizations. 3. The application should contain statements of support from initial second level registrants. The group should include a robust selection of organizations that have a material interest in the subject and can contribute through the domain to the public good. Challenges should be possible during the evaluation period. 4. The domain will have a management structure that recognizes the applicant as its leader but has in addition a council of leaders consisting of a representation of second level registrants. Additions and deletions to the registrant list, as well as any decisions regarding structural, behavioral and content issues are the responsibility of such a council that will develop its management charter. 5. The domain must have in it two prominent up to date entries. The first should be a detailed statement of purpose, and the second should be an updated annotated index of all second level registrants and the manner in which their domain can be used to contribute to the public interest related to the string. The first entry should be a part of the application and cannot be changed in any significant manner for the life of the gTLD except by rough consensus of the domain management group. (I strongly recommend a sensitive and insightful exposition of the meaning and implications of "rough consensus" is provided in RFC 7282 by Pete Resnick.) 6. If the domain is to change hands to another manager, the transfer must be judged on the basis of continuity and importance of purpose. The price of the domain will be limited to the original investment in the acquisition and operation of the domain, appropriately discounted, and capped by the increase in some measure such as the rate of inflation or the cost of capital increase during the period of current management, possibly with a multiplier and/or floor of some sort. Rationale: This will insure that public service rather than gain is the motivating factor for applying for the domain. I think that I would feel comfortable that a structure like this would ensure that the domain would adhere to its original public benefit purpose. Other structural approaches are possible also. This approach does require a new set of considerations for a new category. This may not be an easy task, and will take time, but it is not an impossible job. The result -- accommodation for including public interest generic gTLDs --should make such a development worthwhile and, assuming that one agrees with the list of hypotheses at the beginning of the list, directly addresses the possible resolution of existing generic string disputes. Comments? George ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ George Sadowsky Residence tel: +1.301.968.4325 8300 Burdette Road, Apt B-472 Mobile: +1.202.415.1933 Bethesda MD 20817-2831 USA Skype: sadowsky george.sadowsky(a)gmail.com http://www.georgesadowsky.org/ _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos) You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

2 1

Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
by Alexander Schubert July 12, 2020

July 12, 2020

Dear Jeff,Let me startSent from my Samsung device -------- Original message -------- From: Jeff Neuman <jeff(a)jjnsolutions.com> Date: 7/12/20 18:36 (GMT+02:00) To: George Sadowsky <george.sadowsky(a)gmail.com> Cc: gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks George for keeping the dialogue going and I think this is very helpful. So, I presented an example before (and in) the initial report that I came up with. The example was an application for .disaster by the International Red Cross. The application (made up by me) was to have second level names given to specific disasters to serve as the official Red Cross fund raiser for these events. Examples include HurricaineMaria.disaster, covid19VA.disaster, covid19UK.disaster, etc. Users would know that if they went to these sites and donated, that the money would actually be going to the official Red Cross and to official sources. The goal would be to drastically reduce the amount of fraud to end users from fake fundraising campaigns. Those that opposed closed generics did not agree that this would be good enough. They argued that generic words should be open to all “competitors” and why should the Red Cross monopolize a word/string. They come from the very traditional view that second level domains should be available to all (with restrictions). It is a view of end users being the registrants of domains as opposed to end users being those that use the Internet in general. Opponents argued “why couldn’t they just apply for .redcross” or “why cant they just make it open”? So essentially it became a debate about words and generic ness and who has a right to them as opposed to looking at the application itself to see if it served a public interest goal. When it became apparent that even in this humanitarian extreme example that members of the working group were unwilling to consider the application that we decided to end the discussion because it was clear that no example would satisfy the “serving a public interest goal” to members of the group. I hope that helps explain a little bit more how we got here and that we have indeed tried to discuss some examples. Get Outlook for iOS From: George Sadowsky <george.sadowsky(a)gmail.com> Sent: Sunday, July 12, 2020 9:35:12 AM To: Jeff Neuman <jeff(a)jjnsolutions.com> Cc: Kleiman Kathy <kathy(a)kathykleiman.com>; gnso-newgtld-wg(a)icann.org <gnso-newgtld-wg(a)icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Thanks, Jeff, for a thorough and and balanced response. I have several comments and suggestions, interspersed in the text below. On Jul 11, 2020, at 11:50 PM, Jeff Neuman <jeff(a)jjnsolutions.com> wrote: Thanks George. This is helpful, but I am not sure that any part of the Board resolution or rationale necessarily supports the notion that the default position be an outright ban. In reading the resolution and rationale again, one could read that as meaning that the board was not looking to ban closed generics altogether, but was looking for guidance as to how applications for closed generics could be evaluated as “serving a public interest goal.”

1 0

Latest Version of Compromise Closed Generic Text
by Jeff Neuman July 12, 2020

July 12, 2020

Fair enough. Here is the latest version with Paul’s edits: No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1] to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also called “Closed Generic” gTLDs) were delegated in the first round. It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2]. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree on “policy advice concerning exclusive generic TLDs.” Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (e.g., no changes recommended). However, in this unique case, the Working Group was not able to agree on what the Status Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either (i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them), (ii) Closed Generics would not be allowed (noting that none were delegated in the 2012 round), or (iii) Closed Generics would be allowed if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board). Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff(a)JJNSolutions.com http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady(a)taftlaw.com> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff(a)jjnsolutions.com>; gnso-newgtld-wg(a)icann.org Subject: RE: Proposed Compromise Language on Closed Generics Thanks Jeff. I actually think that is a step backwards as there was no ban (or “not allowed”). There were 3 options, none of which were a ban: 1. Change 2. Defer to the next Round or 3. Withdraw Let’s keep trying. How about simply deleting the ( ) on all of the options. They are, ultimately, commentary on the opinions of WG members, so they don’t really add much. If we can’t do that, then we could say (ii) Closed Generics would not be allowed (noting than none were delegated in the 2012 round). That would be factual. Best, Paul From: Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposed Compromise Language on Closed Generics Thanks Paul. Each option is followed by a parenthetical explaining why that option could be viewed as the status quo. So while I take your point, we could amend to read: (ii) Closed Generics would not be allowed (as they were not allowed to proceed in the 2012 round) Would that work? Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady(a)taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposed Compromise Language on Closed Generics Thanks Jeff. Most of your proposed text is accurate and, therefore, good. However, “…(ii) Closed Generics would not be allowed (in line with part (a) of the Board’s resolution),…” is not accurate since the Board’s resolution specifically addressed the 2012 Round and not future Rounds, so there is no “in line with.” The inaccuracy jumps out since A would require an applicant to file a closed generic then later amend it. That would be nonsensical. A more accurate way to state what I think you are trying to say would simply be “…(ii) Closed Generics would not be allowed…”. Otherwise, I think this works. Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:41 AM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposed Compromise Language on Closed Generics All, There has been some good conversation on Closed Generics and specifically making sure that we stay completely factual. In light of the e-mails from Paul, Kathy, Anne and others, I wanted to present some text to replace part (a) of the Closed Generics section. That text is below. A couple of notes first. 1. The materials produced by the Working Group are intended to be as objective as possible and not advocacy pieces for one side or the other. I ask that you look at it for its accuracy and not whether the language makes your position look good or not. 2. The Chairs have not cut off any discussions on this topic at all. If you really believe this to be the case, you are free to report this to the GNSO Council Liaison to escalate. But to make it clear, leadership has assessed that this Working Group is not able to come to agreement on either the substance of this issue, or even on what the default/status quo would be. And the discussions so far on the mailing list have proven us correct. So I would ask that everyone please refrain from accusations that we have cut off discussions inappropriately, or to escalate the issue. 3. The cites for the quotes here are in footnotes (which I did not attach to the body of this e-mail, but can if you would like). 4. If the text below is acceptable, then we will make the corresponding changes in the Rationale. 5. Finally, I know Kathy you were only on the phone during the last call where Package 6 (which included Closed Generics) was on the agenda and discussed. If you review the chat transcript, you will see that there was no support for including the terms “ban” or “effective ban” as you raised. Further George Sadowski, who was on the call, in that chat stated that his opinion of what happened was his opinion and not necessarily the opinion of the 2013/2014 Board which is reflected in the resolution itself. I have the utmost respect for George as he knows from our many conversations, and his views are incredibly important to us, but for the text of the Draft Final Report, we have to include the language of the actual resolution and supporting documentation. ********************************************* So, here is the proposed text: No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1] to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also called “Closed Generic” gTLDs) were delegated in the first round. It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2]. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree on “policy advice concerning exclusive generic TLDs.” Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (e.g., no changes recommended). However, in this unique case, the Working Group was not able to agree on what the Status Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either (i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them), (ii) Closed Generics would not be allowed (in line with part (a) of the Board’s resolution), or (iii) Closed Generics would be allowed if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board). Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff(a)JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ [1] https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06… [2] Ibid. [1] https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06… [2] Ibid.

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Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
by Alexander Schubert July 12, 2020

July 12, 2020

Kathy, Paul,In the 2007 gNSO PDP the issue of "closed generics" has not been defined; but was left open. Accordingly the 2012 AGB was reflecting this policy vacuum; which forced the board to intervene.After the 2012 application round the Board gave clear instructions to the gNSO to develop new policy advice. A mini-micro "2006/2007"-style PDP: just for the very narrow aspect of "closed generics".We are right now exercising the "2012-AGB revision process"; it is authorized to revise the 2012 AGB; it is bound in this exercise by the 2007 PDP. This current forum has explicitly stated that it will abstain from leaving the 2007 policy advise picket fence.As a result this current forum is not authorized to create new policy advice.I guess we all hoped that somehow we all agree to a solution - then implement it; and hence avoid a formal (partial) new PDP.It seems we have now reached agreement within this forum that this 2012-AGB-revision will not come up with a solution.That's not a problem at all.The board didn't require this forum to solve the problem. It instructed the gNSO to engage in a policy development process leading to new policy advice (in regard to the issue of "closed generics").So I suggest we stop wasting precious time: The gNSO has only about 1 year left to create new policy advice regarding the simple question: how shall closed generics be treated. We here are out of depth and need to let this go.The NGPC specifically required the gNSO: "A Policy Development Process with respect to operating exclusive generic strings in the 'public interest' should be undertaken by the community. Policy issues on 'closed generic' TLDs should be resolved through the multistakeholder process."This group here does not have the mandate to conduct a PDP that results in policy advice. We have concluded that we can provide no help, draft or suggestions. So let's simply throw the issue of "closed generics" into a tiny black box: "This working group could not resolve the issues around 'closed generics' and will therefore make no suggestions to their treatment. The gNSO will engage in a PDP - and upon their policy advice a final regulation will be implemented at such time it is available."Closed generics aren't regulated now. So there is nothing for us to say about it. We can continue our 2012 AGB review (leaving closed generics in the black box) - and once the formal PDP creates a solution for closed generics: we add it afterwards. So these are the steps the gNSO (not this group here) will have to initiate:"The rules for the revised GNSO PDP are outlined in Annex A of the ICANN Bylaws and the PDP Manual. In addition, the graphics shown below have been developed to facilitate understanding of the different steps of the PDP which include:Issue IdentificationIssue Scoping (What is the issue?)Initiation (Moving ahead with a PDP or not?)Working Group (Exploring the issue in depth and developing recommendations)Council Deliberation (Assess / affirm WG recommendations)Board Vote (Final approval)Implementation"Can we get this done within 3 month? The benefit of a new (very narrow defined) PDP: there is no "fallback solution". We are forced to create a compromise. It's completely seperate from our scope & group here.Who can initiate a PDP? Could ALAC do that? Is someone from ALAC reading this? Thanks,AlexanderSent from my Samsung device -------- Original message -------- From: Kathy Kleiman <kathy(a)kathykleiman.com> Date: 7/11/20 18:46 (GMT+02:00) To: "McGrady Paul D." <PMcGrady(a)taftlaw.com>, Rubens Kuhl <rubensk(a)nic.br>, Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Trust me, I understand the frustration. Perhaps more than anyone.But we do not get to make up our own facts. The Board has acted, and the GAC has acted. We must operate within those constraints. Best, Kathy ----- Original Message -----From: "McGrady Paul D." <PMcGrady(a)taftlaw.com>To:"Rubens Kuhl" <rubensk(a)nic.br>, "Marc Trachtenberg via Gnso-newgtld-wg" <gnso-newgtld-wg(a)icann.org>Cc:Sent:Sat, 11 Jul 2020 12:18:37 +0000Subject:Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text +1 Rubens. We can’t substitute the facts as they are with Kathy’s view of how they should be. I too am disappointed that this WG did not reach agreement on an improvement to the status quo as the Board asked us to. Some of us tried by introducing thoughts on what a so-called closed generic in the public interest would look like. But, those ideas didn’t stick. Our failure to come to an agreement doesn’t make the fact that we didn’t, somehow, “inaccurate.” What happened, happened, and editorializing about what that means is just another way of trying to get an individual view of what the status quo is adopted by this group. We have been over and over and over this and I, very kindly and respectfully, resist this latest attempt. Best, Paul To receive regular COVID-19 updates from Taft, subscribe here. For additional resources, visit Taft's COVID-19 Resource Toolkit. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Rubens KuhlSent: Friday, July 10, 2020 3:39 PMTo: Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg(a)icann.org>Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text On 10 Jul 2020, at 17:15, Kathy Kleiman <kathy(a)kathykleiman.com> wrote: Hi Jeff, I'm sorry, but the language below is not accurate, and it must be. There is no way this group can agree to allow Closed Generics outside the public interest framework required by the GAC in its Advice. Further, absent our agreement (and the GNSO’s approval), we have not meet the requirements of the Board's resolution on Closed Generics, and the bar does not simply "time out." The group haven't agreed on anything, so... I offer the language below as a substitution -- to accurately reflect the two “Closed Generic” policy requirements before this WG and the GNSO -- the 2015 Board Resolution AND the GAC Advice. No Agreement: The Working Group was unable to come to agreement on a policy that meets the GAC Advice requirements for “exclusive registry access for generic strings serving a public interest goal.” In keeping with the requirements of the 2015 Board resolution, as clarified in the Rationale, the GNSO must “inform the Board on a regular basis with regards to the progress on the issue.” It has not done so. “The NGPC [ICANN Board New gTLD Program Committee] is also requesting that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. The President and CEO should provide the GNSO with information needed to support this request.” https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06… Accordingly, in the absence of agreement by the Working Group on any new policy consistent with the GAC advice on public interest goals, the status quo is that Closed Generics would not be allowed in subsequent rounds in line the Board’s resolution. The GNSO has not formulated or approved a policy in accordance with the Board’s wishes, as stated in the Rationale, and has not reported any progress to the Board, as requested in the Rationale. Therefore, the Board’s resolution holds until such a policy is formulated and formally approved by the GNSO. It's already known that we can't agree on what the status quo is, so retrying it one way or the other doesn't cut it. Rubens

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