Alex, The Board is saying the specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work – so to consider and address this issue. If the Board had decided that exclusive registry access for generic strings MUST serve a public interest goal then they would have just said so and there would be no issue and nothing for the GNSO to address. The fact that the Board says “issue” makes clear that the matter is not decided. Merriam-Website defines “issue” as “a vital or unsettled matter” and “a matter that is in dispute between two or more parties” (https://urldefense.com/v3/__https://www.merriam-webster.com/dictionary/issue... ). I would also add that Kurt, Mike and I feel like maybe our proposal is misunderstood. We are not arguing that closed generics do not necessarily need to be in the public interest. Indeed we think it is quite clear that everything that ICANN does must be in the public interest, per various specific provisions in the Articles and Bylaws saying just that. What we are saying is that closed generics should not be subject to a different public interest test than other new gTLDs. Rather, they ought be presumed or assumed to be in the public interest just as any other new gTLD is, and that any test to analyze whether they are/are not is fraught with subjective difficulties and so any decision would be challenged. Indeed, this is why they were allowed in the last round, ... until they suddenly weren't. To put it more simply, I will re-ask the question that I asked during the last numerous times verbally and in the chat and that no one answered: If the public interest requirement is so important and everything that ICANN does must be in the public interest then why are we singling out closed generics to have to meet a special test and be operated by not for profits? Assuming we need a special test/standards (which we don’t believe are practical for the reasons previously stated) shouldn’t this requirement and test apply to ALL new gTLDs? Best regards, 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@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alexander Schubert Sent: Wednesday, September 16, 2020 3:20 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics" Hi Mark, The original text from the board resolution seems to be: "..... the NGPC 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, and inform the Board on a regular basis with regards to the progress on the issue." It's not a request for consideration. The portion "for generic strings serving a public interest goal" has not sprung from the fantasy of the board; it's enshrined in the new gTLD program goals. So how does the terminology "consider" fit in here? It's a clear request by that board. At least that is how I read it. Thanks, Alexander Sent from my Samsung device -------- Original message -------- From: Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Date: 9/16/20 21:35 (GMT+02:00) To: alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>, gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics" Alan, In the section you cited below, the Board directed the GNSO to specifically consider the issue exclusive registry access for generic strings serving a public interest goal. Which is exactly what we have been doing in the many discussion on the topic of closed generics. The Board did not direct the GNSO to come to the conclusion that exclusive registry access for generic strings can only exist if it serves a public interest goal. Rather, the Board directed the GNSO to specifically consider this issue because the GAC advised that generic strings can only exist if they serve a public interest goal. This is because the Board must consider GAC advice, but not necessarily follow it. Accordingly, if the WG made a recommendation that closed generics should be allowed without a public interest requirement this would be aligned with the Board’s instructions to the GNSO, so long as the issue of whether or not the public interest goal should be required was discussed – which it clearly was (and is). Best regards, 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@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Wednesday, September 16, 2020 1:20 PM To: New gTLD SubPro <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Comment on "The Case for Delegating Closed Generics" *EXTERNAL TO GT* While preparing a presentation for At-Large on Closed Generics, I noted something that I think needs to be considered going forward. In the Pritz, Trachtenberg and Rodenbaugh proposal "The Case for Delegating Closed Generics" advocating the unrestricted delegation of closed generics, the following statement is made in relation to the Board action in response to GAC Advice: The Board consequently decided to halt the processing of applications for ?closed generics? for the current round, and sought additional policy recommendations from the GNSO on how closed generics should be treated in subsequent rounds. That is not accurate as a critical part of the Board resolution is omitted. The exact wording was: NGPC 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, and inform the Board on a regular basis with regards to the progress on the issue. The key missing phrase is that the GNSO Council was instructed to initiate policy work for exclusive registry access for generic strings SERVING A PUBLIC INTEREST. I understand the authors' belief that a test for the public interest is not possible or practical, but that does not remove the clear requirement in the charge the Board gave to the GNSO Council. Regardless of my personal views on the issue of closed generics, I do not believe that the PDP can or should make a recommendation that is not aligned with the Board's instructions to the GNSO. Alan ________________________________ If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com<mailto:postmaster@gtlaw.com>, and do not use or disseminate the information.