[alac] Issues at the GNSO public forum: new gTLDs
The GNSO public forum this afternoon will be addressing and providing opportunities for comment and questions on the draft reports on new gTLDs and WHOIS. New gTLDs <http://gnso.icann.org/drafts/GNSO-PDP-Dec05-FR-14Nov06.pdf> WHOIS <http://gnso.icann.org/issues/whois-privacy/prelim-tf-rpt-22nov06.htm> (in a second email) Some issues raised, and questions that we might want to ask at the public forum: Anyone should feel free to ask these, elaborate upon them, or suggest others. New gTLDs. *The report expresses a commitment to the introduction of new gTLDs in an "orderly" process. "Orderly" should not be a synonym for anticompetitive delay, as it too often is. Shouldn't new gTLDs should be introduced as quickly as practicable, compatible with technical stability and security? *The report includes the notion of "string criteria," against which a new TLD string should be measured. (2.5.2) Some, such as lack of visual confusion, may be appropriate, others, such as reference to "accepted principles of morality" seem to invite procrastination and undue expansion of ICANN's mandate. How can ICANN neutrally decide whether a string is "contrary to public policy or accepted principles of morality" (2.5.2.4)? Does this make ICANN into an arbiter of morality, else how is it to decide whether someone's assertion that ".foo" offends his morality is genuine? The concept of "confusingly similar" sounds promising, but the draft imports a great deal of trademark law into the question, in ways that do not sound appropriate to the comparison of domain strings such as comparison of meaning. ICANN staff acknowledge the risks in string approvals: "10. **Recommendations 2.5.2, 2.5.2.1, 2.5.2.2, 2.5.2.3, 2.5.2.4 and 2.5.2.5: All these draft Recommendations are designed to be objective, contribute to the stability and security of the Internet and be consistent with existing international law. These draft Recommendations would benefit from further detailed discussion between ICANN's legal and operational staff to ensure that the Committee's intentions are implementable and do not impose undue risks on the organisation." *"The applicant must provide a financial and business plan demonstrating that the applicant has the capability to meets its business ambitions." (2.8) Why aren't capability questions better solved by data escrow? Isn't the market best at determining whether an entrepreneur can follow through on its ambitions? Bret's comments suggesting a "turnkey registry" option, where applicants could certify compliance by adopting (or using preexisting services compatible with) a working template, could address many of the operational questions more simply and cheaply than case-by-case evaluation. *Allocation methods. The draft recommends first-come first-served, noting a significant minority for auction. *Contractual conditions. The draft includes some useful defaults, such as compliance with consensus policies and protection of personal data. Wouldn't the entire process be fairer and more efficient if ICANN created a standard registry contract, since one of the frequent objections to new gTLDs is the amount of negotiation effort they cost the staff/board? Do we like the presumptive renewal? One meta question: There are multiple markets here: at least the market for new TLD strings, and the market for uses on top of the platforms they provide. In which place are we more concerned about enabling innovation (roughly, registry-level, registrar-level, or user-level), because there may be tradeoffs among them? I would say at the user level, which may mean standardizing terms at the registry level (registrars already face a great deal of contractual standardization), to provide the broadest platform for creative development by those who use TLDs. --Wendy (apologies for typos, I'm fighting my flaky computer) -- Wendy Seltzer -- wendy@xxxxxxxxxxx Visiting Assistant Professor of Law, Brooklyn Law School Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html Chilling Effects: http://www.chillingeffects.org |