New Thread on Closed Generics
All, I am in London, so my hours are a little off from what they normally are, but I see there has been some excellent discussion on this topic. I know there has been a lot of discussion about what happens if we can’t all agree on a topic and the application of what has been called the “Neuman Rule” (which by the way is flattering 😊). But that said, I want us to try an exercise of thinking about this issue from a fresh lens and trying to see if there are any scenarios in which a so-called closed generic could be applied for and accepted. IF we keep reverting to the conversation of what will be the situation if we don’t agree, then that may serve as an impediment to all of us working to think about this issue in a collaborative creative way. Yes, we will eventually have to deal with that important question for this and some other issues. I am not denying that. But the optimistic side of me still believes firmly in the multi-stakeholder model and that if we put our collective minds together on this and other solutions, we may reach some surprising and satisfying results. So, I want to again put up the GAC Advice because I think it is important here: “For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC did not advise an outright ban. Nor did they define the criteria for what they considered would “serve a public interest goal.” The Working Group in its Initial Report provided some potential options for public comment. Alan has presented a additional proposal (Thank you Alan!). The main question for next call is for those that have been advocating the complete ban is whether or not there is any scenario that they can envision an application for excusive registry access could “serve a public interest goal. If the answer is no from a substantial amount of people, then we will end the discussions. If the answer is yes, then we can continue the discussions and yes, discuss this in a face to face. But if the answer is no, then having a face to face meeting on this will not be productive. The answer to the above question should in no way depend on what the status quo was or is. ********************************************** DISCLAIMER: There are some the believe I (or Cheryl) have an interest in seeing this go in one direction or another. But the truth is that the leadership does not. My company may have a position, but they understand that I am not acting on behalf of my company here and in fact, I have not been a part of the comments they have been or will be developing. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> [cid:image002.jpg@01D5E709.93238C40] ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
Dear Jeff, dear all, Jeff, you wrote: “If we keep reverting to the conversation of what will be the situation if we don’t agree ….” I think we have to put special emphasis on this aspect in regard to the issue at hand (Closed Generics): It is my understanding that we are currently scrutinizing the 2012 AGB and its implementation (based on the 2007 gNSO policy advice as adopted by the board), trying to iron out flaws, and rely on “community consensus” for any potential changes. As a result in absence of “consensus” we do not change 2012 AGB provisions. The issue at hand (“Closed Generics”) has been discussed in the 2007 PDP – but these have neither explicitly permitted, nor denied. Several members here assert now, that this constitutes an “implied eligibility” for Closed Generics; that therefore in absence of community consensus as a fallback the AGB should not be changed; that therefore Closed Generics (remain) eligible – unless the then current board would issue a new regulation regarding Closed Generics once the application roster is public. I argue, that in the case of Closed Generics we are not simply following 2007 Policy Advice. In my mind there was a clear mandate by the board in June 2015 to create new policy advice for this very narrow set of potential applications – not just merely take the 2007 policy advice as basis for new rules. I quote the board from June 2015: “….. subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs ….” I read this the following way; essentially the board states: * Yes, we adopted the 2007 Policy Advice * Yes, that Policy Advice did not explicitly regulate Closed Generics * We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest * As a result we blocked the contracting of 2012 Closed Generics * The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics * We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics My suggestion would be to separate the issue of Closed Generics from our other work, and handle it as creation of Policy Advice – as mandated by the board in 2015. In my view that implies that there is no Fallback Solution. I read it the way that the board explicitly stated that the current advice is not enabling it to make sound decisions; and that it insists on clear instructions on how Closed Generics are being handled. So in my opinion for once we are requested to literally create new Policy Advice. Thanks, Alexander (Marc: I value your constructive criticism. Do you find the above posting still “offensive”?) From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Mittwoch, 19. Februar 2020 04:47 To: gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] New Thread on Closed Generics All, I am in London, so my hours are a little off from what they normally are, but I see there has been some excellent discussion on this topic. I know there has been a lot of discussion about what happens if we can’t all agree on a topic and the application of what has been called the “Neuman Rule” (which by the way is flattering 😊). But that said, I want us to try an exercise of thinking about this issue from a fresh lens and trying to see if there are any scenarios in which a so-called closed generic could be applied for and accepted. IF we keep reverting to the conversation of what will be the situation if we don’t agree, then that may serve as an impediment to all of us working to think about this issue in a collaborative creative way. Yes, we will eventually have to deal with that important question for this and some other issues. I am not denying that. But the optimistic side of me still believes firmly in the multi-stakeholder model and that if we put our collective minds together on this and other solutions, we may reach some surprising and satisfying results. So, I want to again put up the GAC Advice because I think it is important here: “For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC did not advise an outright ban. Nor did they define the criteria for what they considered would “serve a public interest goal.” The Working Group in its Initial Report provided some potential options for public comment. Alan has presented a additional proposal (Thank you Alan!). The main question for next call is for those that have been advocating the complete ban is whether or not there is any scenario that they can envision an application for excusive registry access could “serve a public interest goal. If the answer is no from a substantial amount of people, then we will end the discussions. If the answer is yes, then we can continue the discussions and yes, discuss this in a face to face. But if the answer is no, then having a face to face meeting on this will not be productive. The answer to the above question should in no way depend on what the status quo was or is. ********************************************** DISCLAIMER: There are some the believe I (or Cheryl) have an interest in seeing this go in one direction or another. But the truth is that the leadership does not. My company may have a position, but they understand that I am not acting on behalf of my company here and in fact, I have not been a part of the comments they have been or will be developing. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com <http://www.comlaude.com/> www.comlaude.com _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com>
Alex, I appreciate your responsiveness to my criticism which was intended to be constructive but I think was probably more abrasive than necessary. Stating our views as fact is something that all of us – including myself - need to be conscious of and try to avoid. With respect to your posting below, I do not find it offensive but rather I agree with both your characterization of the Board’s position and your proposal to separate out the issue of closed generics. Perhaps we can get feedback on your proposal and hopefully get consensus on this approach. 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, February 19, 2020 12:43 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] New Thread on Closed Generics *EXTERNAL TO GT* Dear Jeff, dear all, Jeff, you wrote: “If we keep reverting to the conversation of what will be the situation if we don’t agree ….” I think we have to put special emphasis on this aspect in regard to the issue at hand (Closed Generics): It is my understanding that we are currently scrutinizing the 2012 AGB and its implementation (based on the 2007 gNSO policy advice as adopted by the board), trying to iron out flaws, and rely on “community consensus” for any potential changes. As a result in absence of “consensus” we do not change 2012 AGB provisions. The issue at hand (“Closed Generics”) has been discussed in the 2007 PDP – but these have neither explicitly permitted, nor denied. Several members here assert now, that this constitutes an “implied eligibility” for Closed Generics; that therefore in absence of community consensus as a fallback the AGB should not be changed; that therefore Closed Generics (remain) eligible – unless the then current board would issue a new regulation regarding Closed Generics once the application roster is public. I argue, that in the case of Closed Generics we are not simply following 2007 Policy Advice. In my mind there was a clear mandate by the board in June 2015 to create new policy advice for this very narrow set of potential applications – not just merely take the 2007 policy advice as basis for new rules. I quote the board from June 2015: “….. subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs ….” I read this the following way; essentially the board states: * Yes, we adopted the 2007 Policy Advice * Yes, that Policy Advice did not explicitly regulate Closed Generics * We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest * As a result we blocked the contracting of 2012 Closed Generics * The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics * We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics My suggestion would be to separate the issue of Closed Generics from our other work, and handle it as creation of Policy Advice – as mandated by the board in 2015. In my view that implies that there is no Fallback Solution. I read it the way that the board explicitly stated that the current advice is not enabling it to make sound decisions; and that it insists on clear instructions on how Closed Generics are being handled. So in my opinion for once we are requested to literally create new Policy Advice. Thanks, Alexander (Marc: I value your constructive criticism. Do you find the above posting still “offensive”?) From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Mittwoch, 19. Februar 2020 04:47 To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] New Thread on Closed Generics All, I am in London, so my hours are a little off from what they normally are, but I see there has been some excellent discussion on this topic. I know there has been a lot of discussion about what happens if we can’t all agree on a topic and the application of what has been called the “Neuman Rule” (which by the way is flattering 😊). But that said, I want us to try an exercise of thinking about this issue from a fresh lens and trying to see if there are any scenarios in which a so-called closed generic could be applied for and accepted. IF we keep reverting to the conversation of what will be the situation if we don’t agree, then that may serve as an impediment to all of us working to think about this issue in a collaborative creative way. Yes, we will eventually have to deal with that important question for this and some other issues. I am not denying that. But the optimistic side of me still believes firmly in the multi-stakeholder model and that if we put our collective minds together on this and other solutions, we may reach some surprising and satisfying results. So, I want to again put up the GAC Advice because I think it is important here: “For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC did not advise an outright ban. Nor did they define the criteria for what they considered would “serve a public interest goal.” The Working Group in its Initial Report provided some potential options for public comment. Alan has presented a additional proposal (Thank you Alan!). The main question for next call is for those that have been advocating the complete ban is whether or not there is any scenario that they can envision an application for excusive registry access could “serve a public interest goal. If the answer is no from a substantial amount of people, then we will end the discussions. If the answer is yes, then we can continue the discussions and yes, discuss this in a face to face. But if the answer is no, then having a face to face meeting on this will not be productive. The answer to the above question should in no way depend on what the status quo was or is. ********************************************** DISCLAIMER: There are some the believe I (or Cheryl) have an interest in seeing this go in one direction or another. But the truth is that the leadership does not. My company may have a position, but they understand that I am not acting on behalf of my company here and in fact, I have not been a part of the comments they have been or will be developing. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> https://urldefense.com/v3/__http://www.comlaude.com__;!!DUT_TFPxUQ!QiWZPe6yC... <https://urldefense.com/v3/__http:/www.comlaude.com/__;!!DUT_TFPxUQ!QV2gnlvN4...> [cid:image003.jpg@01D5E78C.0083C110] ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see https://urldefense.com/v3/__http://www.comlaude.com__;!!DUT_TFPxUQ!QiWZPe6yC... <https://urldefense.com/v3/__https:/comlaude.com__;!!DUT_TFPxUQ!QV2gnlvN4mlwG...> ---------------------------------------------------------------------- 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.
Thanks Alexander for this note (and everyone else that has been weighing in). I think you have laid out in the bullet points what leadership has been thinking as well about what the Board resolution states with one small modification: I read this the following way; essentially the board states: * Yes, we adopted the 2007 Policy Advice * Yes, that Policy Advice did not explicitly regulate Closed Generics * We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest about Closed Generic applications and advised the Board that “exclusive registry access should serve a public interest goal.“ * As a result we blocked the contracting of 2012 Closed Generics * The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics * We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics The reason for the change is that the GAC Advice did not contain any judgements of any of the particular strings as either serving or not serving a public interest goal. Rather, it advised the Board to only accept the ones that did serve such a goal. ICANN Org did request each applicant for the listed generic strings to state why they believed their application served a public interest goal, but to the best of my knowledge, ICANN did not make any assessment of those responses (at least on the record). Instead, several months later, they passed the resolution that we have been discussing. So, as you have also suggested, the Working Group should be trying to develop policy advice on this subject. And, to date there have been some members of the Working Group doing just that. So keep it coming. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Alexander Schubert Sent: Wednesday, February 19, 2020 6:43 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] New Thread on Closed Generics Dear Jeff, dear all, Jeff, you wrote: “If we keep reverting to the conversation of what will be the situation if we don’t agree ….” I think we have to put special emphasis on this aspect in regard to the issue at hand (Closed Generics): It is my understanding that we are currently scrutinizing the 2012 AGB and its implementation (based on the 2007 gNSO policy advice as adopted by the board), trying to iron out flaws, and rely on “community consensus” for any potential changes. As a result in absence of “consensus” we do not change 2012 AGB provisions. The issue at hand (“Closed Generics”) has been discussed in the 2007 PDP – but these have neither explicitly permitted, nor denied. Several members here assert now, that this constitutes an “implied eligibility” for Closed Generics; that therefore in absence of community consensus as a fallback the AGB should not be changed; that therefore Closed Generics (remain) eligible – unless the then current board would issue a new regulation regarding Closed Generics once the application roster is public. I argue, that in the case of Closed Generics we are not simply following 2007 Policy Advice. In my mind there was a clear mandate by the board in June 2015 to create new policy advice for this very narrow set of potential applications – not just merely take the 2007 policy advice as basis for new rules. I quote the board from June 2015: “….. subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs ….” I read this the following way; essentially the board states: * Yes, we adopted the 2007 Policy Advice * Yes, that Policy Advice did not explicitly regulate Closed Generics * We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest * As a result we blocked the contracting of 2012 Closed Generics * The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics * We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics My suggestion would be to separate the issue of Closed Generics from our other work, and handle it as creation of Policy Advice – as mandated by the board in 2015. In my view that implies that there is no Fallback Solution. I read it the way that the board explicitly stated that the current advice is not enabling it to make sound decisions; and that it insists on clear instructions on how Closed Generics are being handled. So in my opinion for once we are requested to literally create new Policy Advice. Thanks, Alexander (Marc: I value your constructive criticism. Do you find the above posting still “offensive”?) From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Mittwoch, 19. Februar 2020 04:47 To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] New Thread on Closed Generics All, I am in London, so my hours are a little off from what they normally are, but I see there has been some excellent discussion on this topic. I know there has been a lot of discussion about what happens if we can’t all agree on a topic and the application of what has been called the “Neuman Rule” (which by the way is flattering 😊). But that said, I want us to try an exercise of thinking about this issue from a fresh lens and trying to see if there are any scenarios in which a so-called closed generic could be applied for and accepted. IF we keep reverting to the conversation of what will be the situation if we don’t agree, then that may serve as an impediment to all of us working to think about this issue in a collaborative creative way. Yes, we will eventually have to deal with that important question for this and some other issues. I am not denying that. But the optimistic side of me still believes firmly in the multi-stakeholder model and that if we put our collective minds together on this and other solutions, we may reach some surprising and satisfying results. So, I want to again put up the GAC Advice because I think it is important here: “For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC did not advise an outright ban. Nor did they define the criteria for what they considered would “serve a public interest goal.” The Working Group in its Initial Report provided some potential options for public comment. Alan has presented a additional proposal (Thank you Alan!). The main question for next call is for those that have been advocating the complete ban is whether or not there is any scenario that they can envision an application for excusive registry access could “serve a public interest goal. If the answer is no from a substantial amount of people, then we will end the discussions. If the answer is yes, then we can continue the discussions and yes, discuss this in a face to face. But if the answer is no, then having a face to face meeting on this will not be productive. The answer to the above question should in no way depend on what the status quo was or is. ********************************************** DISCLAIMER: There are some the believe I (or Cheryl) have an interest in seeing this go in one direction or another. But the truth is that the leadership does not. My company may have a position, but they understand that I am not acting on behalf of my company here and in fact, I have not been a part of the comments they have been or will be developing. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> [cid:image002.jpg@01D5E7CE.91E411E0] ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com> ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
Dear Jeff Dear All I fully agree with the analysis and comment that Jeff made to the case I would like to know the content and scope of advice What GAC included in its Beijing advice is very general and conditioned the application to be in the interest of public We could build our output on the batter based on that advice as a core point but also using the argument given in Jeff last message. As background import some brief elements from the discussions so far carried out Regards Kavouss Sent from my iPhone
On 20 Feb 2020, at 12:27, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
Thanks Alexander for this note (and everyone else that has been weighing in).
I think you have laid out in the bullet points what leadership has been thinking as well about what the Board resolution states with one small modification:
I read this the following way; essentially the board states: Yes, we adopted the 2007 Policy Advice Yes, that Policy Advice did not explicitly regulate Closed Generics We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest about Closed Generic applications and advised the Board that “exclusive registry access should serve a public interest goal.“ As a result we blocked the contracting of 2012 Closed Generics The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics
The reason for the change is that the GAC Advice did not contain any judgements of any of the particular strings as either serving or not serving a public interest goal. Rather, it advised the Board to only accept the ones that did serve such a goal.
ICANN Org did request each applicant for the listed generic strings to state why they believed their application served a public interest goal, but to the best of my knowledge, ICANN did not make any assessment of those responses (at least on the record). Instead, several months later, they passed the resolution that we have been discussing.
So, as you have also suggested, the Working Group should be trying to develop policy advice on this subject. And, to date there have been some members of the Working Group doing just that. So keep it coming.
Best regards,
Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Alexander Schubert Sent: Wednesday, February 19, 2020 6:43 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] New Thread on Closed Generics
Dear Jeff, dear all,
Jeff, you wrote: “If we keep reverting to the conversation of what will be the situation if we don’t agree ….”
I think we have to put special emphasis on this aspect in regard to the issue at hand (Closed Generics): It is my understanding that we are currently scrutinizing the 2012 AGB and its implementation (based on the 2007 gNSO policy advice as adopted by the board), trying to iron out flaws, and rely on “community consensus” for any potential changes. As a result in absence of “consensus” we do not change 2012 AGB provisions.
The issue at hand (“Closed Generics”) has been discussed in the 2007 PDP – but these have neither explicitly permitted, nor denied. Several members here assert now, that this constitutes an “implied eligibility” for Closed Generics; that therefore in absence of community consensus as a fallback the AGB should not be changed; that therefore Closed Generics (remain) eligible – unless the then current board would issue a new regulation regarding Closed Generics once the application roster is public.
I argue, that in the case of Closed Generics we are not simply following 2007 Policy Advice. In my mind there was a clear mandate by the board in June 2015 to create new policy advice for this very narrow set of potential applications – not just merely take the 2007 policy advice as basis for new rules. I quote the board from June 2015: “….. subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs ….”
I read this the following way; essentially the board states: Yes, we adopted the 2007 Policy Advice Yes, that Policy Advice did not explicitly regulate Closed Generics We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest As a result we blocked the contracting of 2012 Closed Generics The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics
My suggestion would be to separate the issue of Closed Generics from our other work, and handle it as creation of Policy Advice – as mandated by the board in 2015. In my view that implies that there is no Fallback Solution. I read it the way that the board explicitly stated that the current advice is not enabling it to make sound decisions; and that it insists on clear instructions on how Closed Generics are being handled. So in my opinion for once we are requested to literally create new Policy Advice.
Thanks,
Alexander
(Marc: I value your constructive criticism. Do you find the above posting still “offensive”?)
From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Mittwoch, 19. Februar 2020 04:47 To: gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] New Thread on Closed Generics
All,
I am in London, so my hours are a little off from what they normally are, but I see there has been some excellent discussion on this topic. I know there has been a lot of discussion about what happens if we can’t all agree on a topic and the application of what has been called the “Neuman Rule” (which by the way is flattering 😊).
But that said, I want us to try an exercise of thinking about this issue from a fresh lens and trying to see if there are any scenarios in which a so-called closed generic could be applied for and accepted. IF we keep reverting to the conversation of what will be the situation if we don’t agree, then that may serve as an impediment to all of us working to think about this issue in a collaborative creative way. Yes, we will eventually have to deal with that important question for this and some other issues. I am not denying that. But the optimistic side of me still believes firmly in the multi-stakeholder model and that if we put our collective minds together on this and other solutions, we may reach some surprising and satisfying results.
So, I want to again put up the GAC Advice because I think it is important here: “For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC did not advise an outright ban. Nor did they define the criteria for what they considered would “serve a public interest goal.” The Working Group in its Initial Report provided some potential options for public comment. Alan has presented a additional proposal (Thank you Alan!).
The main question for next call is for those that have been advocating the complete ban is whether or not there is any scenario that they can envision an application for excusive registry access could “serve a public interest goal. If the answer is no from a substantial amount of people, then we will end the discussions. If the answer is yes, then we can continue the discussions and yes, discuss this in a face to face. But if the answer is no, then having a face to face meeting on this will not be productive.
The answer to the above question should in no way depend on what the status quo was or is.
********************************************** DISCLAIMER: There are some the believe I (or Cheryl) have an interest in seeing this go in one direction or another. But the truth is that the leadership does not. My company may have a position, but they understand that I am not acting on behalf of my company here and in fact, I have not been a part of the comments they have been or will be developing.
Jeff Neuman Senior Vice President
Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA
M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com www.comlaude.com
<image002.jpg>
The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@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.
Dear Jeff, Your replacement (“the GAC voiced concern about closed Generic applications and advised the Board that ‘exclusive registry access should serve a public interest goal’ .“) makes perfect sense! And indeed the goal here shouldn’t be to deny the creation of “exclusive registry access” for generic term based strings (a model in which the registry determines on their own whom and whom not they allow to register or “use” domains). The underlying concern seems the lack of public interest of such model. If we handle this issue as policy advice creation (adapting, clarifying, extending the 2007 policy advice – as opposed to have the 2007 policy advice being the basis for our work) then we could execute that task this way: * We create two alternative policy advice scenarios : 1. one that allows for exclusive use gTLDs 2. and one that doesn’t * We prepare draft policies for both – and then let the community decide which shall be adopted. Of course we could explain which we prefer; in case we find consensus for such preference. * The policy for 2. seems easy: generic term based strings have to be open to the general public. They require the applicant to lay out how they intend to provide public benefit through allowing registrations – these registration phases (e.g. Sunrise, etc.) need to be specified. The “public interest” is then provided by making domain registrations available. * Number 1. almost certainly requires some kind of “judgement call” – and that is where it gets tricky: o Is the proposed use of the string justifiable in the public interest? o Once the registry is operating: has the proposed use of the string been sufficiently implemented and executed (compliance) In case we allow for exclusive registry access we should probably warn “newcomers” by stating at the beginning of the AGB: “In the 1st new gTLD round, after intervention by the GAC -citing the lack of public benefit- the board has denied contracting for a considerable number of generic keyword based exclusive access registries. As a result the gNSO developed new policy advice in 2020 stating that as a general rule there should be no expectation that generic keyword based exclusive access registries would be able to contract with ICANN. The exception would be clear proof that the public interest is served by operating a specific registry in a way that is deemed to benefit the public. The burden to proof public interest lays in the hands of the applicant. Massive opposition/objection from the GAC or in public comment periods will serve as indicators of lack of proof. Additionally all exclusive use applicants will have to specify how they would operate their registry if it would be open to the public. If the applicant is deemed to not have proven public interest, they can either withdraw their application or revert to their open use version.” My English isn’t the best – needs maybe a bit “polishing”. Benefit of that solution: we do not deny exclusive access applications. But newcomers are clearly warned that they are in “hot waters”. This solution also makes change requests unnecessary – open registry usage is already baked in. This way it is also easier for the public to decide which of both versions (exclusive access or open) is deemed to be of more public interest. This really raises the bar in explaining why exactly exclusive access is more beneficial then open access for a certain generic string. Thanks, Alexander From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Donnerstag, 20. Februar 2020 04:27 To: alexander@schubert.berlin; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] New Thread on Closed Generics Thanks Alexander for this note (and everyone else that has been weighing in). I think you have laid out in the bullet points what leadership has been thinking as well about what the Board resolution states with one small modification: I read this the following way; essentially the board states: * Yes, we adopted the 2007 Policy Advice * Yes, that Policy Advice did not explicitly regulate Closed Generics * We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest about Closed Generic applications and advised the Board that “exclusive registry access should serve a public interest goal.“ * As a result we blocked the contracting of 2012 Closed Generics * The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics * We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics The reason for the change is that the GAC Advice did not contain any judgements of any of the particular strings as either serving or not serving a public interest goal. Rather, it advised the Board to only accept the ones that did serve such a goal. ICANN Org did request each applicant for the listed generic strings to state why they believed their application served a public interest goal, but to the best of my knowledge, ICANN did not make any assessment of those responses (at least on the record). Instead, several months later, they passed the resolution that we have been discussing. So, as you have also suggested, the Working Group should be trying to develop policy advice on this subject. And, to date there have been some members of the Working Group doing just that. So keep it coming. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Alexander Schubert Sent: Wednesday, February 19, 2020 6:43 PM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] New Thread on Closed Generics Dear Jeff, dear all, Jeff, you wrote: “If we keep reverting to the conversation of what will be the situation if we don’t agree ….” I think we have to put special emphasis on this aspect in regard to the issue at hand (Closed Generics): It is my understanding that we are currently scrutinizing the 2012 AGB and its implementation (based on the 2007 gNSO policy advice as adopted by the board), trying to iron out flaws, and rely on “community consensus” for any potential changes. As a result in absence of “consensus” we do not change 2012 AGB provisions. The issue at hand (“Closed Generics”) has been discussed in the 2007 PDP – but these have neither explicitly permitted, nor denied. Several members here assert now, that this constitutes an “implied eligibility” for Closed Generics; that therefore in absence of community consensus as a fallback the AGB should not be changed; that therefore Closed Generics (remain) eligible – unless the then current board would issue a new regulation regarding Closed Generics once the application roster is public. I argue, that in the case of Closed Generics we are not simply following 2007 Policy Advice. In my mind there was a clear mandate by the board in June 2015 to create new policy advice for this very narrow set of potential applications – not just merely take the 2007 policy advice as basis for new rules. I quote the board from June 2015: “….. subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs ….” I read this the following way; essentially the board states: * Yes, we adopted the 2007 Policy Advice * Yes, that Policy Advice did not explicitly regulate Closed Generics * We had applications for Closed Generics, and the GAC voiced concern that these were not in the public interest * As a result we blocked the contracting of 2012 Closed Generics * The 2007 gNSO Policy Advice doesn’t provide clear guidance in regards to Closed Generics * We urge the gNSO to revisit the creation of Policy Advice – and clarify under what circumstances the gNSO advises to allow or deny Closed Generics My suggestion would be to separate the issue of Closed Generics from our other work, and handle it as creation of Policy Advice – as mandated by the board in 2015. In my view that implies that there is no Fallback Solution. I read it the way that the board explicitly stated that the current advice is not enabling it to make sound decisions; and that it insists on clear instructions on how Closed Generics are being handled. So in my opinion for once we are requested to literally create new Policy Advice. Thanks, Alexander (Marc: I value your constructive criticism. Do you find the above posting still “offensive”?) From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Mittwoch, 19. Februar 2020 04:47 To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] New Thread on Closed Generics All, I am in London, so my hours are a little off from what they normally are, but I see there has been some excellent discussion on this topic. I know there has been a lot of discussion about what happens if we can’t all agree on a topic and the application of what has been called the “Neuman Rule” (which by the way is flattering 😊). But that said, I want us to try an exercise of thinking about this issue from a fresh lens and trying to see if there are any scenarios in which a so-called closed generic could be applied for and accepted. IF we keep reverting to the conversation of what will be the situation if we don’t agree, then that may serve as an impediment to all of us working to think about this issue in a collaborative creative way. Yes, we will eventually have to deal with that important question for this and some other issues. I am not denying that. But the optimistic side of me still believes firmly in the multi-stakeholder model and that if we put our collective minds together on this and other solutions, we may reach some surprising and satisfying results. So, I want to again put up the GAC Advice because I think it is important here: “For strings representing generic terms, exclusive registry access should serve a public interest goal." The GAC did not advise an outright ban. Nor did they define the criteria for what they considered would “serve a public interest goal.” The Working Group in its Initial Report provided some potential options for public comment. Alan has presented a additional proposal (Thank you Alan!). The main question for next call is for those that have been advocating the complete ban is whether or not there is any scenario that they can envision an application for excusive registry access could “serve a public interest goal. If the answer is no from a substantial amount of people, then we will end the discussions. If the answer is yes, then we can continue the discussions and yes, discuss this in a face to face. But if the answer is no, then having a face to face meeting on this will not be productive. The answer to the above question should in no way depend on what the status quo was or is. ********************************************** DISCLAIMER: There are some the believe I (or Cheryl) have an interest in seeing this go in one direction or another. But the truth is that the leadership does not. My company may have a position, but they understand that I am not acting on behalf of my company here and in fact, I have not been a part of the comments they have been or will be developing. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com <http://www.comlaude.com/> www.comlaude.com _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com> _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com>
participants (4)
-
Alexander Schubert -
Arasteh -
Jeff Neuman -
trachtenbergm＠gtlaw.com