Marc, we can agree to disagree on this. I find the words "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" very clear. The Board is asking the GNSO to consider rules associated with "exclusive registry access for generic strings serving a public interest goal". Certainly the PDP COULD say "we have considered them and reject the concept and believe that there should be no prohibition". But unless we can get a strong consensus on that (with the hope that the GAC will not again object), then what we are supposed to be considering is rules for such TLDs that can satisfy the PI goal. That is what my group's proposaal does, and as I understand it, that is what Jeff's proposal is trying to do. Alan At 2020-09-16 02:35 PM, trachtenbergm@gtlaw.com wrote:

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 <mailto:trac@gtlaw.com>trac@gtlaw.com | 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> 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, and do not use or disseminate the information.

I find it disappointing that this thread started with the assertion that the brief position paper regarding Closed Generic was disingenuous (i.e., ’not accurate’) in that it attempted to mask the Board’s intentions and the SubPro task. The paper discusses nothing but public interest issues throughout and the topic was already well-worn. So there could be no misunderstanding by anyone — unless one was attempting to find one. The paper was not intended to be a stand-alone proposal to be considered by the public, but rather meant to inform the discussion of the SubPro group. Substantively, and this has been said before, the paper is not advocating for TLDs that do not serve the public interest. Everything that ICANN does must be in the public interest, as indicated in specific provisions in the Articles and Bylaws. It is rarely mentioned, but serving the public interest is the purpose of the Guidebook provisions: the technical and financial criteria, the CPE, objection processes. protections for geographic names, even the COI, were meant to serve registrants and the internet-using public, and address SSR needs, The paper is saying that a public interest test (or banning closed generics altogether) do not further the public interest. The hope of the paper was that some might carefully consider the idea that the difficulty in creating a workable and effective test and the subsequent bar to innovation would create materially more harm than good for the next round and the ICANN model. I do not think the difficulty can be overstated. In thinking about the various positions on this, I have tried developing a public interest test that might be workable (i.e., resulting in consistent outcomes) and effective (i.e., actually resulting in some greater service to the public). Among other things, this requires coming up with definitions for 'public interest' and 'generic,’ as well as criteria for testing these. I could not do it. I have some experience with this. I once spent weeks on a conference room with a team reviewing ersatz applications and trying to develop a workable, effective CPE. This is multiple times more difficult. It is disappointing too that some characterize the paper as an ‘anything goes’ approach. Rather, it is an approach borne out of a careful consideration and balancing of the risks and benefits. I think it is abdicating our responsibility to create a policy that approaches ‘unimplementablity’ or to say, “I understand it is difficult but the hard work must be done.” To test this, the advocates of such a test might set up an exercise to explore or defend the workability and effectiveness of it. Finally, I don’t think any of the paper’s authors have a dog in the fight other than the establishment of a policy that enables the creation of a smooth-running process that encourages innovation and serves the public interest. There is a risk to that desired outcome in the development of an additional, selectively implemented public interest test. That is why the time and energy was expended to write the paper. I think it is ok for us to tell the board and the board to tell the GAC that the process is designed to serve the public interest — we studied it in detail and came to that conclusion. Kurt

On Sep 17, 2020, at 12:58 PM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

Marc, we can agree to disagree on this.

I find the words "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" very clear.

The Board is asking the GNSO to consider rules associated with "exclusive registry access for generic strings serving a public interest goal".

Certainly the PDP COULD say "we have considered them and reject the concept and believe that there should be no prohibition". But unless we can get a strong consensus on that (with the hope that the GAC will not again object), then what we are supposed to be considering is rules for such TLDs that can satisfy the PI goal. That is what my group's proposaal does, and as I understand it, that is what Jeff's proposal is trying to do.

Alan

At 2020-09-16 02:35 PM, trachtenbergm@gtlaw.com <mailto:trachtenbergm@gtlaw.com> wrote:

...

<>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> | www.gtlaw.com    <http://www.gtlaw.com   />

<b8cecd6.jpg>

From: Gnso-newgtld-wg [ mailto:gnso-newgtld-wg-bounces@icann.org <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> 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, and do not use or disseminate the information.

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