Latest Version of Compromise Closed Generic Text
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@JJNSolutions.com http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com>; gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@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.
Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com>; gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@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. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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Thanks Anne. That change makes sense to me. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com http://jjnsolutions.com<http://jjnsolutions.com/> From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Thursday, July 9, 2020 2:49 PM To: Jeff Neuman <jeff@jjnsolutions.com>; McGrady, Paul D. <PMcGrady@taftlaw.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ [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.
Jeff, respectfully, how does the 2012 implementation work as a status quo? Assuming 10 closed generics per round in 10 rounds we would just have 100 applications that are being perpetually deferred to the next round and the next round and the next round. I don’t see how Anne’s change makes sense. Why would we at this late moment start to define what the status quo is? I thought that was the point of your exercise today – that we don’t know what it is. Anne’s proposed language gives a false impression that we agree that how this was implemented in the 2012 round is, in fact, the go-forward status quo. No such agreement was reached (the WG was not allowed to discuss what the status quo really is). Best, Paul From: Jeff Neuman <jeff@jjnsolutions.com> Sent: Thursday, July 9, 2020 1:53 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; McGrady, Paul D. <PMcGrady@taftlaw.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text Thanks Anne. That change makes sense to me. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 2:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ [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.
Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com>; McGrady, Paul D. <PMcGrady@taftlaw.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ [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.
Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman <jeff@jjnsolutions.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ [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. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com>; Jeff Neuman <jeff@jjnsolutions.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ [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.
Paul. Anne is not proposing to change the language of how we are defining the status quo for Closed Generics. Anne is merely pointing out that aside from the issue of Closed Generics, the status quo has always been the implementation of that aspect of the program. For example, the Application Guidebook stated that applications should be placed in batches of 500 and that’s how they would be processed (first batch 1 I complete, then 2 and so on). However, the way it was implemented in actuality was on a rolling basis. Thus, if we were not able to reach agreement (which thankfully we have), then the status quo would be “as implemented” and not what was in the Applicant Guidebook. Example 2, the AGB stated that a skills based test would be used to determine priority of applications. We know that didn’t work out so well and a drawing was held instead. So the default there would be the drawing and not what was in the Guidebook. There are many such examples. So Anne is correct. Your question is precisely the reason why Closed Generics is unique and that is why Anne did not change the text that you recommended on no agreement on the status quo. So help me understand your objection. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com> Sent: Thursday, July 9, 2020 3:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman <jeff@jjnsolutions.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ [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.
Thanks Jeff. If you want to allow the status quo to be defined by Anne there isn’t anything I can do to stop that other than to object to it. I do not think that the “status quo” is, or will be, that applications for closed generics will come in and the Board will offer the 3 options again in a new resolution mimicking its prior resolution. In fact, I think there is very little chance of that (approaching zero). But if you want to adopt a definition of status quo (when the WG was specifically not allowed to talk about what that would be), I’m not sure what else can be done now that we know that this topic will not get more air time on our calls. Maybe staff can simply drop a footnote to note that not every WG member agrees with Anne’s definition of the status quo? Thanks! From: Jeff Neuman <jeff@jjnsolutions.com> Sent: Thursday, July 9, 2020 2:07 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com>; Aikman-Scalese, Anne <AAikman@lrrc.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text Paul. Anne is not proposing to change the language of how we are defining the status quo for Closed Generics. Anne is merely pointing out that aside from the issue of Closed Generics, the status quo has always been the implementation of that aspect of the program. For example, the Application Guidebook stated that applications should be placed in batches of 500 and that’s how they would be processed (first batch 1 I complete, then 2 and so on). However, the way it was implemented in actuality was on a rolling basis. Thus, if we were not able to reach agreement (which thankfully we have), then the status quo would be “as implemented” and not what was in the Applicant Guidebook. Example 2, the AGB stated that a skills based test would be used to determine priority of applications. We know that didn’t work out so well and a drawing was held instead. So the default there would be the drawing and not what was in the Guidebook. There are many such examples. So Anne is correct. Your question is precisely the reason why Closed Generics is unique and that is why Anne did not change the text that you recommended on no agreement on the status quo. So help me understand your objection. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 3:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ [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.
+1 to Paul and add me to the list of WG members who do not agree with Anne’ definition. 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 McGrady, Paul D. Sent: Thursday, July 9, 2020 2:26 PM To: Jeff Neuman <jeff@jjnsolutions.com>; Aikman-Scalese, Anne <AAikman@lrrc.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text *EXTERNAL TO GT* Thanks Jeff. If you want to allow the status quo to be defined by Anne there isn’t anything I can do to stop that other than to object to it. I do not think that the “status quo” is, or will be, that applications for closed generics will come in and the Board will offer the 3 options again in a new resolution mimicking its prior resolution. In fact, I think there is very little chance of that (approaching zero). But if you want to adopt a definition of status quo (when the WG was specifically not allowed to talk about what that would be), I’m not sure what else can be done now that we know that this topic will not get more air time on our calls. Maybe staff can simply drop a footnote to note that not every WG member agrees with Anne’s definition of the status quo? Thanks! From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 2:07 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul. Anne is not proposing to change the language of how we are defining the status quo for Closed Generics. Anne is merely pointing out that aside from the issue of Closed Generics, the status quo has always been the implementation of that aspect of the program. For example, the Application Guidebook stated that applications should be placed in batches of 500 and that’s how they would be processed (first batch 1 I complete, then 2 and so on). However, the way it was implemented in actuality was on a rolling basis. Thus, if we were not able to reach agreement (which thankfully we have), then the status quo would be “as implemented” and not what was in the Applicant Guidebook. Example 2, the AGB stated that a skills based test would be used to determine priority of applications. We know that didn’t work out so well and a drawing was held instead. So the default there would be the drawing and not what was in the Guidebook. There are many such examples. So Anne is correct. Your question is precisely the reason why Closed Generics is unique and that is why Anne did not change the text that you recommended on no agreement on the status quo. So help me understand your objection. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> https://urldefense.com/v3/__http://jjnsolutions.com__;!!DUT_TFPxUQ!W8HXcC7Ys... <https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99Z...> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 3:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> https://urldefense.com/v3/__http://jjnsolutions.com__;!!DUT_TFPxUQ!W8HXcC7Ys... <https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99Z...> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> https://urldefense.com/v3/__http://jjnsolutions.com__;!!DUT_TFPxUQ!W8HXcC7Ys... <https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99Z...> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DUT...>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covid...>. 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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> https://urldefense.com/v3/__http://jjnsolutions.com__;!!DUT_TFPxUQ!W8HXcC7Ys... <https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99Z...> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. 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Marc, The notion that this is “Anne’s definition” is actually laughable. It is certainly not my definition and the entire WG and ICANN staff all know this. The Co-Chairs also know it and Jeff has already restated it. It’s a part of our WG working method that has been operative all along the way. Anne From: trachtenbergm@gtlaw.com <trachtenbergm@gtlaw.com> Sent: Thursday, July 9, 2020 12:39 PM To: PMcGrady@taftlaw.com; jeff@jjnsolutions.com; Aikman-Scalese, Anne <AAikman@lrrc.com>; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ +1 to Paul and add me to the list of WG members who do not agree with Anne’ definition. 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/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of McGrady, Paul D. Sent: Thursday, July 9, 2020 2:26 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text *EXTERNAL TO GT* Thanks Jeff. If you want to allow the status quo to be defined by Anne there isn’t anything I can do to stop that other than to object to it. I do not think that the “status quo” is, or will be, that applications for closed generics will come in and the Board will offer the 3 options again in a new resolution mimicking its prior resolution. In fact, I think there is very little chance of that (approaching zero). But if you want to adopt a definition of status quo (when the WG was specifically not allowed to talk about what that would be), I’m not sure what else can be done now that we know that this topic will not get more air time on our calls. Maybe staff can simply drop a footnote to note that not every WG member agrees with Anne’s definition of the status quo? Thanks! From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 2:07 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul. Anne is not proposing to change the language of how we are defining the status quo for Closed Generics. Anne is merely pointing out that aside from the issue of Closed Generics, the status quo has always been the implementation of that aspect of the program. For example, the Application Guidebook stated that applications should be placed in batches of 500 and that’s how they would be processed (first batch 1 I complete, then 2 and so on). However, the way it was implemented in actuality was on a rolling basis. Thus, if we were not able to reach agreement (which thankfully we have), then the status quo would be “as implemented” and not what was in the Applicant Guidebook. Example 2, the AGB stated that a skills based test would be used to determine priority of applications. We know that didn’t work out so well and a drawing was held instead. So the default there would be the drawing and not what was in the Guidebook. There are many such examples. So Anne is correct. Your question is precisely the reason why Closed Generics is unique and that is why Anne did not change the text that you recommended on no agreement on the status quo. So help me understand your objection. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99ZdyKcmUhRLNVlM1trwyLJZPOA_cHNyguqiUSA4P2_BlY58D616qVmbR5aQ4$> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 3:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99ZdyKcmUhRLNVlM1trwyLJZPOA_cHNyguqiUSA4P2_BlY58D616qVmbR5aQ4$> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99ZdyKcmUhRLNVlM1trwyLJZPOA_cHNyguqiUSA4P2_BlY58D616qVmbR5aQ4$> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DUT...>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covid...>. 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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<https://urldefense.com/v3/__http:/jjnsolutions.com/__;!!DUT_TFPxUQ!VyULNW99ZdyKcmUhRLNVlM1trwyLJZPOA_cHNyguqiUSA4P2_BlY58D616qVmbR5aQ4$> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. 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Paul – I don’t think it helps your case to make personal accusations against me or the Leadership. It’s clear you want the silent AGB to be deemed the “status quo”. However, the WG work to date does not agree with that. Please keep in mind as you make your accusations against me regarding desire outcomes that I am the one who drafted a list of considerations the Board could take into account in assessing whether a Closed Generic application might operate “in the public interest”. We have been working with this implementation principle for a very long time and it applies for all other issues – the “status quo” (Otherwise known as the “fallback” in the event of no consensus) is 2012 implementation and the only reason an exception is being made here is that the Board asked for policy work from the GNSO. So we have agreed to acknowledge that the WG has not agreed on the “status quo” or “fallback.” Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com> Sent: Thursday, July 9, 2020 12:26 PM To: Jeff Neuman <jeff@jjnsolutions.com>; Aikman-Scalese, Anne <AAikman@lrrc.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Jeff. If you want to allow the status quo to be defined by Anne there isn’t anything I can do to stop that other than to object to it. I do not think that the “status quo” is, or will be, that applications for closed generics will come in and the Board will offer the 3 options again in a new resolution mimicking its prior resolution. In fact, I think there is very little chance of that (approaching zero). But if you want to adopt a definition of status quo (when the WG was specifically not allowed to talk about what that would be), I’m not sure what else can be done now that we know that this topic will not get more air time on our calls. Maybe staff can simply drop a footnote to note that not every WG member agrees with Anne’s definition of the status quo? Thanks! From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 2:07 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul. Anne is not proposing to change the language of how we are defining the status quo for Closed Generics. Anne is merely pointing out that aside from the issue of Closed Generics, the status quo has always been the implementation of that aspect of the program. For example, the Application Guidebook stated that applications should be placed in batches of 500 and that’s how they would be processed (first batch 1 I complete, then 2 and so on). However, the way it was implemented in actuality was on a rolling basis. Thus, if we were not able to reach agreement (which thankfully we have), then the status quo would be “as implemented” and not what was in the Applicant Guidebook. Example 2, the AGB stated that a skills based test would be used to determine priority of applications. We know that didn’t work out so well and a drawing was held instead. So the default there would be the drawing and not what was in the Guidebook. There are many such examples. So Anne is correct. Your question is precisely the reason why Closed Generics is unique and that is why Anne did not change the text that you recommended on no agreement on the status quo. So help me understand your objection. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 3:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ ________________________________ [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. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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Thanks Anne. I am unsure how the requested footnote in response to your proposed changes in the parenthetical language is a personal accusation against you or Leadership. Jeff, we are fully dug in here and starting to trample on each other’s feelings apparently. I’m withdrawing from the conversation on this detail. The co-chairs will just have to make the best call they can. Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Thursday, July 9, 2020 2:40 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com>; Jeff Neuman <jeff@jjnsolutions.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text Paul – I don’t think it helps your case to make personal accusations against me or the Leadership. It’s clear you want the silent AGB to be deemed the “status quo”. However, the WG work to date does not agree with that. Please keep in mind as you make your accusations against me regarding desire outcomes that I am the one who drafted a list of considerations the Board could take into account in assessing whether a Closed Generic application might operate “in the public interest”. We have been working with this implementation principle for a very long time and it applies for all other issues – the “status quo” (Otherwise known as the “fallback” in the event of no consensus) is 2012 implementation and the only reason an exception is being made here is that the Board asked for policy work from the GNSO. So we have agreed to acknowledge that the WG has not agreed on the “status quo” or “fallback.” Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 12:26 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Jeff. If you want to allow the status quo to be defined by Anne there isn’t anything I can do to stop that other than to object to it. I do not think that the “status quo” is, or will be, that applications for closed generics will come in and the Board will offer the 3 options again in a new resolution mimicking its prior resolution. In fact, I think there is very little chance of that (approaching zero). But if you want to adopt a definition of status quo (when the WG was specifically not allowed to talk about what that would be), I’m not sure what else can be done now that we know that this topic will not get more air time on our calls. Maybe staff can simply drop a footnote to note that not every WG member agrees with Anne’s definition of the status quo? Thanks! From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 2:07 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul. Anne is not proposing to change the language of how we are defining the status quo for Closed Generics. Anne is merely pointing out that aside from the issue of Closed Generics, the status quo has always been the implementation of that aspect of the program. For example, the Application Guidebook stated that applications should be placed in batches of 500 and that’s how they would be processed (first batch 1 I complete, then 2 and so on). However, the way it was implemented in actuality was on a rolling basis. Thus, if we were not able to reach agreement (which thankfully we have), then the status quo would be “as implemented” and not what was in the Applicant Guidebook. Example 2, the AGB stated that a skills based test would be used to determine priority of applications. We know that didn’t work out so well and a drawing was held instead. So the default there would be the drawing and not what was in the Guidebook. There are many such examples. So Anne is correct. Your question is precisely the reason why Closed Generics is unique and that is why Anne did not change the text that you recommended on no agreement on the status quo. So help me understand your objection. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 3:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ [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.
Paul, There were a number of issues where the “fallback” was 2012 implementation, not the AGB. Quite a while back, the Chairs and the WG determined that the operating principle for fallback is 2012 implementation. This was even deemed the “Neuman” rule and I’m pretty sure you were participating at the time this moniker arose. This conclusion resulted in some cases from New gTLD Program Committee work. As you know, the NGPC was a subset of the Board (i.e. the non-conflicted Board members) which was delegated full authority to act. An example of action on their part is the Name Collision Framework that was implemented in 2012. There are other examples and it may be useful to review the various Resolutions of the New gTLD Program Committee (NGPC). It has already been acknowledged that we are going to need acknowledge the normal fallback. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com> Sent: Thursday, July 9, 2020 12:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman <jeff@jjnsolutions.com>; gnso-newgtld-wg@icann.org Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was Board-made policy since it was over ride of the AGB which was made by community processes). Jeff, Anne’s proposal add confusion. I don’t support it. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:56 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case. Anne From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 11:54 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular. Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about what the WG has discussed. Thanks! Best, Paul From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 9, 2020 1:49 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Latest Version of Compromise Closed Generic Text Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below. Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [EXTERNAL] ________________________________ 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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. 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The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ ________________________________ [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. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. 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Good evening: I should not need to repeat, here, my opposition to the concept of Closed generic TLDs. The privatisation of the common good such as generic words would be an incorrect action on the part of ICANN. It would appear from the discussion the most participants, here, are thinking only in terms of the English language and Latin script. Allow me to suggest that the extension of the policies, that are being discussed here, to other languages and scripts, world wide, would be quite inconceivable. Please, dear friends, let's get real. CW
El 9 de julio de 2020 a las 20:48 "Aikman-Scalese, Anne" <AAikman@lrrc.com> escribió:
Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below.
Thank you,
Anne
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Thursday, July 9, 2020 11:19 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com>; gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
[EXTERNAL]
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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 (i.e., no changes [Aikman-Scalese, Anne] to 2012 implementation 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@JJNSolutions.com mailto:Jeff@JJNSolutions.com http://jjnsolutions.com http://jjnsolutions.com/
From: McGrady, Paul D. <PMcGrady@taftlaw.com mailto:PMcGrady@taftlaw.com > Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com mailto:jeff@jjnsolutions.com >; gnso-newgtld-wg@icann.org mailto:gnso-newgtld-wg@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@jjnsolutions.com mailto:jeff@jjnsolutions.com > Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com mailto:PMcGrady@taftlaw.com >; gnso-newgtld-wg@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@JJNSolutions.com mailto:Jeff@JJNSolutions.com http://jjnsolutions.com http://jjnsolutions.com/
From: McGrady, Paul D. <PMcGrady@taftlaw.com mailto:PMcGrady@taftlaw.com > Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com mailto:jeff@jjnsolutions.com >; gnso-newgtld-wg@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
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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@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@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@JJNSolutions.com mailto:Jeff@JJNSolutions.com http://jjnsolutions.com http://jjnsolutions.com/
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[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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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." 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. --------------- Best, Kathy ----- Original Message ----- From: "Jeff Neuman" To:"McGrady Paul D." , "gnso-newgtld-wg@icann.org" Cc: Sent:Thu, 9 Jul 2020 18:18:30 +0000 Subject:[Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [KK: Replacing]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] [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] [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 (eg., 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@JJNSolutions.com http://jjnsolutions.com [3] FROM: McGrady, Paul D. SENT: Thursday, July 9, 2020 2:14 PM TO: Jeff Neuman ; gnso-newgtld-wg@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 SENT: Thursday, July 9, 2020 1:09 PM TO: McGrady, Paul D. ; gnso-newgtld-wg@icann.org [6] 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@JJNSolutions.com [7] http://jjnsolutions.com [8] FROM: McGrady, Paul D. SENT: Thursday, July 9, 2020 1:11 PM TO: Jeff Neuman ; gnso-newgtld-wg@icann.org [11] 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 [12]. For additional resources, visit Taft's COVID-19 Resource Toolkit [13]. 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 ON BEHALF OF Jeff Neuman SENT: Thursday, July 9, 2020 11:41 AM TO: gnso-newgtld-wg@icann.org [15] 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. * 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. * 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. * 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). * If the text below is acceptable, then we will make the corresponding changes in the Rationale. * 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] [16] 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] [17]. 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@JJNSolutions.com [18] http://jjnsolutions.com [19] ------------------------- ------------------------- ------------------------- [1] [20] https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-... [2] [21] Ibid. [1] [22] https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-... [2] [23] Ibid. Links: ------ [1] http://gmmn-6gkh.accessdomain.com/#_ftn1 [2] http://gmmn-6gkh.accessdomaincom/#_ftn2 [3] http://jjnsolutions.com/ [4] mailto:jeff@jjnsolutions.com [5] mailto:PMcGrady@taftlaw.com [6] mailto:gnso-newgtld-wg@icann.org [7] mailto:Jeff@JJNSolutions.com [8] http://jjnsolutions.com/ [9] mailto:PMcGrady@taftlaw.com [10] mailto:jeff@jjnsolutions.com [11] mailto:gnso-newgtld-wg@icann.org [12] https://www.taftlaw.com/general/subscribe [13] https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit [14] mailto:gnso-newgtld-wg-bounces@icann.org [15] mailto:gnso-newgtld-wg@icann.org [16] http://gmmn-6gkh.accessdomain.com/#_ftn3 [17] http://gmmn-6gkh.accessdomain.com/#_ftn4 [18] mailto:Jeff@JJNSolutions.com [19] http://jjnsolutions.com/ [20] http://gmmn-6gkh.accessdomain.com/#_ftnref1 [21] http://gmmn-6gkh.accessdomain.com/#_ftnref2 [22] http://gmmn-6gkh.accessdomain.com/#_ftnref3 [23] http://gmmn-6gkh.accessdomain.com/#_ftnref4
On 10 Jul 2020, at 17:15, Kathy Kleiman <kathy@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
+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<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@icann.org> On Behalf Of Rubens Kuhl Sent: Friday, July 10, 2020 3:39 PM To: Marc Trachtenberg via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text On 10 Jul 2020, at 17:15, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@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
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." To:"Rubens Kuhl" , "Marc Trachtenberg via Gnso-newgtld-wg" Cc: Sent:Sat, 11 Jul 2020 12:18:37 +0000 Subject: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 [1]. For additional resources, visit Taft's COVID-19 Resource Toolkit [2]. 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 ON BEHALF OF Rubens Kuhl SENT: Friday, July 10, 2020 3:39 PM TO: Marc Trachtenberg via Gnso-newgtld-wg SUBJECT: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text On 10 Jul 2020, at 17:15, Kathy Kleiman 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-... [4] 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 Links: ------ [1] https://www.taftlaw.com/general/subscribe [2] https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit [3] mailto:kathy@kathykleiman.com [4] https://www.icannorg/resources/board-material/resolutions-new-gtld-2015-06-2...
Kathy, Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out. The public can submit comments and we will then again revisit after the comments are received. And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens). But we have to cut off the conversation as we just seem to be going around and around on the same points. You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite. At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other. That is the way it must remain absent agreement by the group otherwise. Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com http://jjnsolutions.com<http://jjnsolutions.com/> From: Kathy Kleiman <kathy@kathykleiman.com> Sent: Friday, July 10, 2020 4:15 PM To: Jeff Neuman <jeff@jjnsolutions.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text 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." 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. --------------- Best, Kathy ----- Original Message ----- From: "Jeff Neuman" <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> To: "McGrady Paul D." <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Cc: Sent: Thu, 9 Jul 2020 18:18:30 +0000 Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [KK: Replacing] 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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@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.
Jeff, and all,, I've looked at what Kathy posted, and I think that the working group may want to do so again and reconsider what I believe is the working group's current position. I speak here only as an individual having a stake in the continued successful evolution, improvement and use of the Internet. Every resolution passed by the Board in the last 10 years had had a "resolved" component and a "rationale" part, and I believe that this practice continues to this day. The rationale part was added to provide more extensive explanation of what the resolution says and why it says it. It might surprise you to know that during my tenure the Board spent as much time wordsmithing the rationale as it spent wordsmithing the resolution itself. We wanted to ensure that there was an adequate understanding of what we said. I admit that the resolved part of the resolution in question has an ambiguity in it, which I think has led to your current quandary that you don't know what the current status quo is. However, I think that the rationale provides more information and removes much if not all of the uncertainty about the status quo. Here is one of the paragraphs from the rationale:
“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-... <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-...>
First, the text refers to the GNSO's plans for solving this issue for subsequent rounds (plural) of the New gTLD program and report progress to the Board. This leads me to conclude that the Board's advice in the resolution applies to both this and to other rounds in the future. If the Board's advice were to expire after the 2011 round, there would be no point for the Board to provide any advice or make any requests for the future. The board was interested in having the status quo, i.e. prohibition until the GNSO acted, followed until the GNSO could come up with its own policy. Second, the Board specifically asked the GNSO tomake progress on this issue in the future and report such progress to the Board. From what I now understand, there has been little progress and no reporting of any formal sort. I conclude that the status quo is now well defined as a prohibition on generic strings until such time as the GNSO can report back an agreed upon policy to the Board, and that at present there is no agreed upon such policy. Jeff, I hope that the working group will consider and accept the thrust of this conclusion. IMO it will be a significant process error and a public embarrassment if the working group consciously decides to ignore the clarification that the 2015 NGPC (passed on behalf of the full Board) formulated and incorporated into their resolution text. I expect to be on the call next Monday/Tuesday for further discussion of this issue if anyone wants to do so. George On Jul 11, 2020, at 1:38 PM, Jeff Neuman <jeff@jjnsolutions.com> wrote:
Kathy,
Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out. The public can submit comments and we will then again revisit after the comments are received. And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens).
But we have to cut off the conversation as we just seem to be going around and around on the same points. You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite. At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other. That is the way it must remain absent agreement by the group otherwise.
<image001.png> Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com <mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com <http://jjnsolutions.com/>
From: Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com>> Sent: Friday, July 10, 2020 4:15 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
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."
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-... <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.
---------------
Best, Kathy
----- Original Message ----- From: "Jeff Neuman" <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>
To: "McGrady Paul D." <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>, "gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>> Cc:
Sent: Thu, 9 Jul 2020 18:18:30 +0000 Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
[KK: Replacing] 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] <x-msg://54/#_ftn1> 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] <x-msg://54/#_ftn2>. 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@JJNSolutions.com <mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com <http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>
Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@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@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>
Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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?
From: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>
Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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.
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.
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. 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). If the text below is acceptable, then we will make the corresponding changes in the Rationale. 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] <x-msg://54/#_ftn3> 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] <x-msg://54/#_ftn4>. 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@JJNSolutions.com <mailto:Jeff@JJNSolutions.com>
http://jjnsolutions.com <http://jjnsolutions.com/> [1] <x-msg://54/#_ftnref1> https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-... <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-...> [2] <x-msg://54/#_ftnref2> Ibid.
[1] <x-msg://54/#_ftnref3> https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-... <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-...> [2] <x-msg://54/#_ftnref4> Ibid.
_______________________________________________
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com http://www.georgesadowsky.org/
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.” And frankly, I would have loved the Board to have phrased their request in a more precise manner. Rather than asking for blanket advice on the topic of closed generics, it should have asked the GNSO to develop the criteria for measuring whether an application serves a public interest goal. That would have started our work on better footing. MY PERSONAL VIEW AND HONEST ASSESSMENT FOLLOWS: The issue we have, as you probably are aware by now, is that opponents of closed generics do not believe that there is any way at all that closed generics could serve a public interest goal and therefore have been immovable on any tests or criteria that have been proposed to measure public interest. On the other hand, there are proponents of closed generics that are trying to suggest mechanisms which many have found to be extremely broad. So long as opponents of closed generics believe the status quo to be that there is a “ban” on closed generics, there has been little to no incentive for them to develop a compromise position. Alternatively, those that cite the fact that the AGB had no prohibition on closed generics, believe that the status quo from a policy perspective is that there is no such prohibition. Therein lies the dilemma that we have and why we must insist that the language in this section of the report be objective and not lean in either direction. We must only use language in the resolution itself (and the rationale). But we should not be interpreting the language any further. The Board never uses the term “prohibition” or “ban”. The Board of course also never states that it should be allowed and therefore we should be stating that in the section either of course. We will be soliciting comments of course on this section and will send a letter to Board asking for its comments as well (just as we did for the Initial and Supplemental Initial Reports). I would love for them to come back and clarify their request. SIDE NOTE: On the reporting aspect, the Board has been kept up to date on our deliberations on this issue and others (from my understanding) through ICANN Org (first Akram, then Cyrus) and now the Board has 2 liaisons that observe our work (Becky and Avri). No other formal mechanism for such reporting was established. Sorry for the long note, but I truly do appreciate your guidance on this subject and look forward to continuing the discussion. - Jeff Get Outlook for iOS<https://aka.ms/o0ukef> ________________________________ From: George Sadowsky <george.sadowsky@gmail.com> Sent: Saturday, July 11, 2020 8:59:14 PM To: Jeff Neuman <jeff@jjnsolutions.com> Cc: Kleiman Kathy <kathy@kathykleiman.com>; gnso-newgtld-wg@icann.org <gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Jeff, and all,, I've looked at what Kathy posted, and I think that the working group may want to do so again and reconsider what I believe is the working group's current position. I speak here only as an individual having a stake in the continued successful evolution, improvement and use of the Internet. Every resolution passed by the Board in the last 10 years had had a "resolved" component and a "rationale" part, and I believe that this practice continues to this day. The rationale part was added to provide more extensive explanation of what the resolution says and why it says it. It might surprise you to know that during my tenure the Board spent as much time wordsmithing the rationale as it spent wordsmithing the resolution itself. We wanted to ensure that there was an adequate understanding of what we said. I admit that the resolved part of the resolution in question has an ambiguity in it, which I think has led to your current quandary that you don't know what the current status quo is. However, I think that the rationale provides more information and removes much if not all of the uncertainty about the status quo. Here is one of the paragraphs from the rationale: “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-... First, the text refers to the GNSO's plans for solving this issue for subsequent rounds (plural) of the New gTLD program and report progress to the Board. This leads me to conclude that the Board's advice in the resolution applies to both this and to other rounds in the future. If the Board's advice were to expire after the 2011 round, there would be no point for the Board to provide any advice or make any requests for the future. The board was interested in having the status quo, i.e. prohibition until the GNSO acted, followed until the GNSO could come up with its own policy. Second, the Board specifically asked the GNSO tomake progress on this issue in the future and report such progress to the Board. From what I now understand, there has been little progress and no reporting of any formal sort. I conclude that the status quo is now well defined as a prohibition on generic strings until such time as the GNSO can report back an agreed upon policy to the Board, and that at present there is no agreed upon such policy. Jeff, I hope that the working group will consider and accept the thrust of this conclusion. IMO it will be a significant process error and a public embarrassment if the working group consciously decides to ignore the clarification that the 2015 NGPC (passed on behalf of the full Board) formulated and incorporated into their resolution text. I expect to be on the call next Monday/Tuesday for further discussion of this issue if anyone wants to do so. George On Jul 11, 2020, at 1:38 PM, Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> wrote: Kathy, Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out. The public can submit comments and we will then again revisit after the comments are received. And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens). But we have to cut off the conversation as we just seem to be going around and around on the same points. You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite. At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other. That is the way it must remain absent agreement by the group otherwise. <image001.png> Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> Sent: Friday, July 10, 2020 4:15 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text 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." 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. --------------- Best, Kathy ----- Original Message ----- From: "Jeff Neuman" <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> To: "McGrady Paul D." <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Cc: Sent: Thu, 9 Jul 2020 18:18:30 +0000 Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [KK: Replacing] 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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? From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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. 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. 1. 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. 2. 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). 3. If the text below is acceptable, then we will make the corresponding changes in the Rationale. 4. 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@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. _______________________________________________ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com<mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/
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@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.”
You are correct; there was no permanent "ban". However, I believe that the resolution did mandate a "hold" on consideration of such applications until an acceptable policy had been formulated. . If the GNSO had a mechanism for quickly determining a policy that could have been introduced shortly after the resolution, even up to 6-12 months later, I suppose they could have come back to the Board and said, "OK, here's our policy, can we please resurrect those generic applications to see if they now pass muster?" MY guess is that it would have had to wait for GAC comment, given that the GAC's conditions were pertinent on putting a hold on the applications in the first place, and the effort to reintroduce the applications in that round would not have been successful.
And frankly, I would have loved the Board to have phrased their request in a more precise manner. Rather than asking for blanket advice on the topic of closed generics, it should have asked the GNSO to develop the criteria for measuring whether an application serves a public interest goal. That would have started our work on better footing.
I agree. We should have seen that as a more precise way to get information that would have been relevant to the issue. I suppose that part of the problem (not an excuse!) was that we had quite a few issues to deal with, some anticipated, some not, that were taking time to deal with, and there was a great deal of pressure from applicants to move more quickly so that they could begin to capitalize on their investments. One way of dealing with the situation was to postpone what we felt we could postpone, and I think that we realized that the generic string issue was not going to be easily settled.
MY PERSONAL VIEW AND HONEST ASSESSMENT FOLLOWS:
The issue we have, as you probably are aware by now, is that opponents of closed generics do not believe that there is any way at all that closed generics could serve a public interest goal and therefore have been immovable on any tests or criteria that have been proposed to measure public interest. On the other hand, there are proponents of closed generics that are trying to suggest mechanisms which many have found to be extremely broad.
I regret that I was late in joining the group. One way of attacking the issue would be for those who believed that there existed such "meritorious generics strings" capable of being implemented and serving the public good, they should be proposed and evaluated. Having examples often provides something concrete to discuss, including what proper use and misuse are and how they might be defined more generally, followed by how the goals of meritorious strings can be protected from misuse, etc. I don't know if any of this was attempted.
So long as opponents of closed generics believe the status quo to be that there is a “ban” on closed generics, there has been little to no incentive for them to develop a compromise position. Alternatively, those that cite the fact that the AGB had no prohibition on closed generics, believe that the status quo from a policy perspective is that there is no such prohibition.
Neither position seems defensible. For the first argument, there isn't a "ban;" there's a "hold" pending GNSO action. And for the second, the resolution with its rationale makes it reasonably clear that the Board's decision adds a requirement to the AGB.
Therein lies the dilemma that we have and why we must insist that the language in this section of the report be objective and not lean in either direction. We must only use language in the resolution itself (and the rationale). But we should not be interpreting the language any further. The Board never uses the term “prohibition” or “ban”. The Board of course also never states that it should be allowed and therefore we should be stating that in the section either of course.
But doesn't "using the language" in the resolution mean that you are implicitly interpreting it? Soem of the implications are obvious, why not state them. Also, if the document you are providing to ICANN is meant to elicit public comment and get advice and you have a polarized working group, why not allocate, say, a half page or more of the report to each pole and ask them to present their case as best they can? That will give anyone who wishes to comment a firmer grasp of the issues. Without doing that, I suspect that you will get comments more based on preference than analysis, and you already have a sample of those from the working group.
We will be soliciting comments of course on this section and will send a letter to Board asking for its comments as well (just as we did for the Initial and Supplemental Initial Reports). I would love for them to come back and clarify their request.
Unfortunately, it's a very different Board now. But at least you may get more clarity on the issue.
SIDE NOTE: On the reporting aspect, the Board has been kept up to date on our deliberations on this issue and others (from my understanding) through ICANN Org (first Akram, then Cyrus) and now the Board has 2 liaisons that observe our work (Becky and Avri). No other formal mechanism for such reporting was established.
Sorry for the long note, but I truly do appreciate your guidance on this subject and look forward to continuing the discussion.
Sorry for the long reply, but I hope that it leads to a more balanced conversation. George - Jeff
Get Outlook for iOS <https://aka.ms/o0ukef> From: George Sadowsky <george.sadowsky@gmail.com> Sent: Saturday, July 11, 2020 8:59:14 PM To: Jeff Neuman <jeff@jjnsolutions.com> Cc: Kleiman Kathy <kathy@kathykleiman.com>; gnso-newgtld-wg@icann.org <gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
Jeff, and all,,
I've looked at what Kathy posted, and I think that the working group may want to do so again and reconsider what I believe is the working group's current position. I speak here only as an individual having a stake in the continued successful evolution, improvement and use of the Internet.
Every resolution passed by the Board in the last 10 years had had a "resolved" component and a "rationale" part, and I believe that this practice continues to this day. The rationale part was added to provide more extensive explanation of what the resolution says and why it says it. It might surprise you to know that during my tenure the Board spent as much time wordsmithing the rationale as it spent wordsmithing the resolution itself. We wanted to ensure that there was an adequate understanding of what we said.
I admit that the resolved part of the resolution in question has an ambiguity in it, which I think has led to your current quandary that you don't know what the current status quo is. However, I think that the rationale provides more information and removes much if not all of the uncertainty about the status quo. Here is one of the paragraphs from the rationale:
“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-... <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-...>
First, the text refers to the GNSO's plans for solving this issue for subsequent rounds (plural) of the New gTLD program and report progress to the Board. This leads me to conclude that the Board's advice in the resolution applies to both this and to other rounds in the future. If the Board's advice were to expire after the 2011 round, there would be no point for the Board to provide any advice or make any requests for the future. The board was interested in having the status quo, i.e. prohibition until the GNSO acted, followed until the GNSO could come up with its own policy. Second, the Board specifically asked the GNSO tomake progress on this issue in the future and report such progress to the Board. From what I now understand, there has been little progress and no reporting of any formal sort.
I conclude that the status quo is now well defined as a prohibition on generic strings until such time as the GNSO can report back an agreed upon policy to the Board, and that at present there is no agreed upon such policy.
Jeff, I hope that the working group will consider and accept the thrust of this conclusion. IMO it will be a significant process error and a public embarrassment if the working group consciously decides to ignore the clarification that the 2015 NGPC (passed on behalf of the full Board) formulated and incorporated into their resolution text.
I expect to be on the call next Monday/Tuesday for further discussion of this issue if anyone wants to do so.
George
On Jul 11, 2020, at 1:38 PM, Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>> wrote:
Kathy,
Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out. The public can submit comments and we will then again revisit after the comments are received. And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens).
But we have to cut off the conversation as we just seem to be going around and around on the same points. You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite. At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other. That is the way it must remain absent agreement by the group otherwise.
<image001.png> Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com <mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com <http://jjnsolutions.com/>
From: Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com>> Sent: Friday, July 10, 2020 4:15 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
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."
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-... <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.
---------------
Best, Kathy
----- Original Message ----- From: "Jeff Neuman" <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>
To: "McGrady Paul D." <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>, "gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>> Cc:
Sent: Thu, 9 Jul 2020 18:18:30 +0000 Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
[KK: Replacing] 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] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> 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] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62>. 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@JJNSolutions.com <mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com <http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>
Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@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@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>
Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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?
From: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com>>
Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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,
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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@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@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.
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.
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. 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). If the text below is acceptable, then we will make the corresponding changes in the Rationale. 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] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> 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] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62>. 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@JJNSolutions.com <mailto:Jeff@JJNSolutions.com>
http://jjnsolutions.com <http://jjnsolutions.com/> [1] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-... <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-...> [2] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> Ibid.
[1] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-... <https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-...> [2] <applewebdata://B0ABB74A-4E03-4F9C-8B41-17EF84E46B62> Ibid.
_______________________________________________
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com <mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/ <http://www.georgesadowsky.org/>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com http://www.georgesadowsky.org/
Dear George, You wrote: I regret that I was late in joining the group. One way of attacking the issue would be for those who believed that there existed such "meritorious generics strings" capable of being implemented and serving the public good, they should be proposed and evaluated. I suffered through these discussions about closed generics and one of the issues is that there are participants here (seemingly mostly defending the position of large corporations; so consultants of commercial interest stakeholders) who are outright denying that the new gTLD program is bound to the notion of “serving the public interest”. They see new gTLDs as something that you “acquire”: you spend money and then have the right to operate (or not operate) a certain string for eternity. There isn’t even any “use requirement” in their opinion: even when you never started to make use of your new gTLD – you still have the right to renew it another 10 years: indefinitely. The key concern that has been voiced here is that consultants are motivating big corporations into acquiring “their” industry keywords as new gTLDs – once acquired then either start to think how to use them to gain advantage over the competition, or simply never making use of them altogether: but having it pocketed so the competition can’t gain advantage over them. And there are proponents here who declare: That’s absolutely fine – that’s life. The public has no right to “all generic strings”. I guess the key reason we never found a compromise was that we never agreed on the key requirements of the ICANN new gTLD program. As long as there is no agreement that the program is founded on the principle of “serving the public good” – we never reach agreement on what a “meritorious generics string” is. Just trying to bring you up to speed: and of course I am one of the (many) defenders of the public interest aspect. Obviously this is my view of the issue. Others may have a different view. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of George Sadowsky Sent: Sunday, July 12, 2020 4:35 PM To: Jeff Neuman <jeff@jjnsolutions.com> Cc: 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@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.” You are correct; there was no permanent "ban". However, I believe that the resolution did mandate a "hold" on consideration of such applications until an acceptable policy had been formulated. . If the GNSO had a mechanism for quickly determining a policy that could have been introduced shortly after the resolution, even up to 6-12 months later, I suppose they could have come back to the Board and said, "OK, here's our policy, can we please resurrect those generic applications to see if they now pass muster?" MY guess is that it would have had to wait for GAC comment, given that the GAC's conditions were pertinent on putting a hold on the applications in the first place, and the effort to reintroduce the applications in that round would not have been successful. And frankly, I would have loved the Board to have phrased their request in a more precise manner. Rather than asking for blanket advice on the topic of closed generics, it should have asked the GNSO to develop the criteria for measuring whether an application serves a public interest goal. That would have started our work on better footing. I agree. We should have seen that as a more precise way to get information that would have been relevant to the issue. I suppose that part of the problem (not an excuse!) was that we had quite a few issues to deal with, some anticipated, some not, that were taking time to deal with, and there was a great deal of pressure from applicants to move more quickly so that they could begin to capitalize on their investments. One way of dealing with the situation was to postpone what we felt we could postpone, and I think that we realized that the generic string issue was not going to be easily settled. MY PERSONAL VIEW AND HONEST ASSESSMENT FOLLOWS: The issue we have, as you probably are aware by now, is that opponents of closed generics do not believe that there is any way at all that closed generics could serve a public interest goal and therefore have been immovable on any tests or criteria that have been proposed to measure public interest. On the other hand, there are proponents of closed generics that are trying to suggest mechanisms which many have found to be extremely broad. I regret that I was late in joining the group. One way of attacking the issue would be for those who believed that there existed such "meritorious generics strings" capable of being implemented and serving the public good, they should be proposed and evaluated. Having examples often provides something concrete to discuss, including what proper use and misuse are and how they might be defined more generally, followed by how the goals of meritorious strings can be protected from misuse, etc. I don't know if any of this was attempted. So long as opponents of closed generics believe the status quo to be that there is a “ban” on closed generics, there has been little to no incentive for them to develop a compromise position. Alternatively, those that cite the fact that the AGB had no prohibition on closed generics, believe that the status quo from a policy perspective is that there is no such prohibition. Neither position seems defensible. For the first argument, there isn't a "ban;" there's a "hold" pending GNSO action. And for the second, the resolution with its rationale makes it reasonably clear that the Board's decision adds a requirement to the AGB. Therein lies the dilemma that we have and why we must insist that the language in this section of the report be objective and not lean in either direction. We must only use language in the resolution itself (and the rationale). But we should not be interpreting the language any further. The Board never uses the term “prohibition” or “ban”. The Board of course also never states that it should be allowed and therefore we should be stating that in the section either of course. But doesn't "using the language" in the resolution mean that you are implicitly interpreting it? Soem of the implications are obvious, why not state them. Also, if the document you are providing to ICANN is meant to elicit public comment and get advice and you have a polarized working group, why not allocate, say, a half page or more of the report to each pole and ask them to present their case as best they can? That will give anyone who wishes to comment a firmer grasp of the issues. Without doing that, I suspect that you will get comments more based on preference than analysis, and you already have a sample of those from the working group. We will be soliciting comments of course on this section and will send a letter to Board asking for its comments as well (just as we did for the Initial and Supplemental Initial Reports). I would love for them to come back and clarify their request. Unfortunately, it's a very different Board now. But at least you may get more clarity on the issue. SIDE NOTE: On the reporting aspect, the Board has been kept up to date on our deliberations on this issue and others (from my understanding) through ICANN Org (first Akram, then Cyrus) and now the Board has 2 liaisons that observe our work (Becky and Avri). No other formal mechanism for such reporting was established. Sorry for the long note, but I truly do appreciate your guidance on this subject and look forward to continuing the discussion. Sorry for the long reply, but I hope that it leads to a more balanced conversation. George - Jeff Get Outlook for iOS <https://aka.ms/o0ukef> _____ From: George Sadowsky <george.sadowsky@gmail.com <mailto:george.sadowsky@gmail.com> > Sent: Saturday, July 11, 2020 8:59:14 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> > Cc: Kleiman Kathy <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> >; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Jeff, and all,, I've looked at what Kathy posted, and I think that the working group may want to do so again and reconsider what I believe is the working group's current position. I speak here only as an individual having a stake in the continued successful evolution, improvement and use of the Internet. Every resolution passed by the Board in the last 10 years had had a "resolved" component and a "rationale" part, and I believe that this practice continues to this day. The rationale part was added to provide more extensive explanation of what the resolution says and why it says it. It might surprise you to know that during my tenure the Board spent as much time wordsmithing the rationale as it spent wordsmithing the resolution itself. We wanted to ensure that there was an adequate understanding of what we said. I admit that the resolved part of the resolution in question has an ambiguity in it, which I think has led to your current quandary that you don't know what the current status quo is. However, I think that the rationale provides more information and removes much if not all of the uncertainty about the status quo. Here is one of the paragraphs from the rationale: “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-... First, the text refers to the GNSO's plans for solving this issue for subsequent rounds (plural) of the New gTLD program and report progress to the Board. This leads me to conclude that the Board's advice in the resolution applies to both this and to other rounds in the future. If the Board's advice were to expire after the 2011 round, there would be no point for the Board to provide any advice or make any requests for the future. The board was interested in having the status quo, i.e. prohibition until the GNSO acted, followed until the GNSO could come up with its own policy. Second, the Board specifically asked the GNSO tomake progress on this issue in the future and report such progress to the Board. From what I now understand, there has been little progress and no reporting of any formal sort. I conclude that the status quo is now well defined as a prohibition on generic strings until such time as the GNSO can report back an agreed upon policy to the Board, and that at present there is no agreed upon such policy. Jeff, I hope that the working group will consider and accept the thrust of this conclusion. IMO it will be a significant process error and a public embarrassment if the working group consciously decides to ignore the clarification that the 2015 NGPC (passed on behalf of the full Board) formulated and incorporated into their resolution text. I expect to be on the call next Monday/Tuesday for further discussion of this issue if anyone wants to do so. George On Jul 11, 2020, at 1:38 PM, Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> > wrote: Kathy, Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out. The public can submit comments and we will then again revisit after the comments are received. And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens). But we have to cut off the conversation as we just seem to be going around and around on the same points. You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite. At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other. That is the way it must remain absent agreement by the group otherwise. <image001.png> Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com <mailto:Jeff@JJNSolutions.com> <http://jjnsolutions.com/> http://jjnsolutions.com From: Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> > Sent: Friday, July 10, 2020 4:15 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> >; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text 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." 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. --------------- Best, Kathy ----- Original Message ----- From: "Jeff Neuman" <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> > To: "McGrady Paul D." <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com> >, "gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> " <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> > Cc: Sent: Thu, 9 Jul 2020 18:18:30 +0000 Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [KK: Replacing] 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@JJNSolutions.com <mailto:Jeff@JJNSolutions.com> <http://jjnsolutions.com/> http://jjnsolutions.com From: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com> > Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> >; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@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@jjnsolutions.com <mailto:jeff@jjnsolutions.com> > Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com> >; gnso-newgtld-wg@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? From: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com> > Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> >; gnso-newgtld-wg@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, <https://www.taftlaw.com/general/subscribe> subscribe here. For additional resources, visit Taft's COVID-19 <https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit> 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@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@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. 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. 1. 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. 2. 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). 3. If the text below is acceptable, then we will make the corresponding changes in the Rationale. 4. 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@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. _______________________________________________ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com <mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com <mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/
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://aka.ms/o0ukef> ________________________________ From: George Sadowsky <george.sadowsky@gmail.com> Sent: Sunday, July 12, 2020 9:35:12 AM To: Jeff Neuman <jeff@jjnsolutions.com> Cc: Kleiman Kathy <kathy@kathykleiman.com>; gnso-newgtld-wg@icann.org <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@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.” You are correct; there was no permanent "ban". However, I believe that the resolution did mandate a "hold" on consideration of such applications until an acceptable policy had been formulated. . If the GNSO had a mechanism for quickly determining a policy that could have been introduced shortly after the resolution, even up to 6-12 months later, I suppose they could have come back to the Board and said, "OK, here's our policy, can we please resurrect those generic applications to see if they now pass muster?" MY guess is that it would have had to wait for GAC comment, given that the GAC's conditions were pertinent on putting a hold on the applications in the first place, and the effort to reintroduce the applications in that round would not have been successful. And frankly, I would have loved the Board to have phrased their request in a more precise manner. Rather than asking for blanket advice on the topic of closed generics, it should have asked the GNSO to develop the criteria for measuring whether an application serves a public interest goal. That would have started our work on better footing. I agree. We should have seen that as a more precise way to get information that would have been relevant to the issue. I suppose that part of the problem (not an excuse!) was that we had quite a few issues to deal with, some anticipated, some not, that were taking time to deal with, and there was a great deal of pressure from applicants to move more quickly so that they could begin to capitalize on their investments. One way of dealing with the situation was to postpone what we felt we could postpone, and I think that we realized that the generic string issue was not going to be easily settled. MY PERSONAL VIEW AND HONEST ASSESSMENT FOLLOWS: The issue we have, as you probably are aware by now, is that opponents of closed generics do not believe that there is any way at all that closed generics could serve a public interest goal and therefore have been immovable on any tests or criteria that have been proposed to measure public interest. On the other hand, there are proponents of closed generics that are trying to suggest mechanisms which many have found to be extremely broad. I regret that I was late in joining the group. One way of attacking the issue would be for those who believed that there existed such "meritorious generics strings" capable of being implemented and serving the public good, they should be proposed and evaluated. Having examples often provides something concrete to discuss, including what proper use and misuse are and how they might be defined more generally, followed by how the goals of meritorious strings can be protected from misuse, etc. I don't know if any of this was attempted. So long as opponents of closed generics believe the status quo to be that there is a “ban” on closed generics, there has been little to no incentive for them to develop a compromise position. Alternatively, those that cite the fact that the AGB had no prohibition on closed generics, believe that the status quo from a policy perspective is that there is no such prohibition. Neither position seems defensible. For the first argument, there isn't a "ban;" there's a "hold" pending GNSO action. And for the second, the resolution with its rationale makes it reasonably clear that the Board's decision adds a requirement to the AGB. Therein lies the dilemma that we have and why we must insist that the language in this section of the report be objective and not lean in either direction. We must only use language in the resolution itself (and the rationale). But we should not be interpreting the language any further. The Board never uses the term “prohibition” or “ban”. The Board of course also never states that it should be allowed and therefore we should be stating that in the section either of course. But doesn't "using the language" in the resolution mean that you are implicitly interpreting it? Soem of the implications are obvious, why not state them. Also, if the document you are providing to ICANN is meant to elicit public comment and get advice and you have a polarized working group, why not allocate, say, a half page or more of the report to each pole and ask them to present their case as best they can? That will give anyone who wishes to comment a firmer grasp of the issues. Without doing that, I suspect that you will get comments more based on preference than analysis, and you already have a sample of those from the working group. We will be soliciting comments of course on this section and will send a letter to Board asking for its comments as well (just as we did for the Initial and Supplemental Initial Reports). I would love for them to come back and clarify their request. Unfortunately, it's a very different Board now. But at least you may get more clarity on the issue. SIDE NOTE: On the reporting aspect, the Board has been kept up to date on our deliberations on this issue and others (from my understanding) through ICANN Org (first Akram, then Cyrus) and now the Board has 2 liaisons that observe our work (Becky and Avri). No other formal mechanism for such reporting was established. Sorry for the long note, but I truly do appreciate your guidance on this subject and look forward to continuing the discussion. Sorry for the long reply, but I hope that it leads to a more balanced conversation. George - Jeff Get Outlook for iOS<https://aka.ms/o0ukef> ________________________________ From: George Sadowsky <george.sadowsky@gmail.com<mailto:george.sadowsky@gmail.com>> Sent: Saturday, July 11, 2020 8:59:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Cc: Kleiman Kathy <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text Jeff, and all,, I've looked at what Kathy posted, and I think that the working group may want to do so again and reconsider what I believe is the working group's current position. I speak here only as an individual having a stake in the continued successful evolution, improvement and use of the Internet. Every resolution passed by the Board in the last 10 years had had a "resolved" component and a "rationale" part, and I believe that this practice continues to this day. The rationale part was added to provide more extensive explanation of what the resolution says and why it says it. It might surprise you to know that during my tenure the Board spent as much time wordsmithing the rationale as it spent wordsmithing the resolution itself. We wanted to ensure that there was an adequate understanding of what we said. I admit that the resolved part of the resolution in question has an ambiguity in it, which I think has led to your current quandary that you don't know what the current status quo is. However, I think that the rationale provides more information and removes much if not all of the uncertainty about the status quo. Here is one of the paragraphs from the rationale: “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-... First, the text refers to the GNSO's plans for solving this issue for subsequent rounds (plural) of the New gTLD program and report progress to the Board. This leads me to conclude that the Board's advice in the resolution applies to both this and to other rounds in the future. If the Board's advice were to expire after the 2011 round, there would be no point for the Board to provide any advice or make any requests for the future. The board was interested in having the status quo, i.e. prohibition until the GNSO acted, followed until the GNSO could come up with its own policy. Second, the Board specifically asked the GNSO tomake progress on this issue in the future and report such progress to the Board. From what I now understand, there has been little progress and no reporting of any formal sort. I conclude that the status quo is now well defined as a prohibition on generic strings until such time as the GNSO can report back an agreed upon policy to the Board, and that at present there is no agreed upon such policy. Jeff, I hope that the working group will consider and accept the thrust of this conclusion. IMO it will be a significant process error and a public embarrassment if the working group consciously decides to ignore the clarification that the 2015 NGPC (passed on behalf of the full Board) formulated and incorporated into their resolution text. I expect to be on the call next Monday/Tuesday for further discussion of this issue if anyone wants to do so. George On Jul 11, 2020, at 1:38 PM, Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> wrote: Kathy, Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out. The public can submit comments and we will then again revisit after the comments are received. And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens). But we have to cut off the conversation as we just seem to be going around and around on the same points. You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite. At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other. That is the way it must remain absent agreement by the group otherwise. <image001.png> Jeff Neuman JJN Solutions, LLC Founder & CEO +1.202.549.5079 Vienna, VA 22180 Jeff@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> Sent: Friday, July 10, 2020 4:15 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text 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." 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. --------------- Best, Kathy ----- Original Message ----- From: "Jeff Neuman" <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> To: "McGrady Paul D." <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Cc: Sent: Thu, 9 Jul 2020 18:18:30 +0000 Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text [KK: Replacing] 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@JJNSolutions.com<mailto:Jeff@JJNSolutions.com> http://jjnsolutions.com<http://jjnsolutions.com/> From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 2:14 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@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@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 9, 2020 1:09 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; gnso-newgtld-wg@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? From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Thursday, July 9, 2020 1:11 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; gnso-newgtld-wg@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@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@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. 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. 1. 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. 2. 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). 3. If the text below is acceptable, then we will make the corresponding changes in the Rationale. 4. 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@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. _______________________________________________ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com<mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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@gmail.com<mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/
participants (9)
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Aikman-Scalese, Anne -
Alexander Schubert -
George Sadowsky -
Jeff Neuman -
Kathy Kleiman -
mail＠christopherwilkinson.eu CW -
McGrady, Paul D. -
Rubens Kuhl -
trachtenbergm＠gtlaw.com