SuperMonopolies.com - Addendum - Complaint About Objection Procedures
SuperMonopolies.com Complaint About Objection Procedures This complaint is an ADDENDUM to the 05 March 2013 comment two days ago on ICANN's forum entitled: "SuperMonopolies.com Objects To Closed Registries" http://forum.icann.org/lists/comments-closed-generic-05feb13/msg00070.html ------------------------------------------------ I welcome this ICANN forum allowing public comment on the proposed closed generic domain extensions, but I also wish to complain about the objection procedures. ICANN's objection methodology on the issue of closed domain registries is problematic. First, the expense of lodging an "official" individual complaint is prohibitively high and second, the parameters of the Independent Objector's brief are so restricted as to deny what many would say are reasonable grounds for lodging an objection. ------------------------------------------------ (1) Prohibitive cost of lodging a complaint The cost of lodging an official objection to a closed registry application appears to be somewhere in the vicinity of €40,000. This is clearly out of reach of all but the most wealthy corporations, if any. This appears to be the cost of a single string objection (I think) so to object to hundreds of strings could cost millions of euros. Consider for example the closed .book string application by Amazon which has received numerous objections on this ICANN forum. There is no chance that a small struggling bookseller for example could possibly afford a fee of this magnitude. Particularly since even a successful objection would not necessarily obtain a single domain name for the bookseller, it would merely prevent Amazon from monopolizing that particular domain string. Not even one of the world's largest corporations seems to be able to justify paying so much for an official objection. Microsoft has released a serious objection to various closed registry applications in a letter to ICANN, but (to my knowledge) has not paid the 40,000 euros or so to lodge an objection. (Note that I have only looked at a small proportion of the hundreds of string applications). This phrase seems to sum up Microsoft's objection: "If ICANN allows closed generic TLDs to proceed, the internet will change from its current fluid form to an assortment of “walled gardens.” This privatization of the internet does not benefit consumers. Consumers who are searching for songs, books, blogs, apps, insurance, or jewelry want choice, not solely the product or service of a single company." Russell Pangborn Assistant General Counsel - Trademarks, Microsoft Corporation http://www.icann.org/en/news/correspondence/pangborn-to-crocker-et-al-31jan1 3-en As stated, the total cost of an objection would probably amount to around 40,000 euros. An objection would be overseen by the International Chamber of Commerce whose fee structure is described in these excerpts via the ICANN website: "The non-refundable amount for the administration of proceedings pursuant to the New gTLD Dispute Resolution Procedure is €5,000. "The administrative expenses shall, normally, not exceed €12,000 for one expert panel proceedings and €17,000 for three expert panel proceedings... "The fees of each expert shall be calculated on the basis of the time reasonably spent by the expert on the proceedings... The hourly rate shall be €450 unless decided otherwise by the Centre after consultation with the expert and the parties." http://newgtlds.icann.org/en/program-status/objection-dispute-resolution/icc -expertise-rules-appx-iii-12jun12-en.pdf (PDF) My thoughts on the near-impossibility for most objectors to afford ICANN's objection fee is covered in more detail and with appropriate links at SuperMonopolies.com on the Objections page. ------------------------------------------------ (2) Restrictions on the objection parameters of the Independent Objector The role of the Independent Objector (IO) at first glance seems like a great initiative by ICANN, however, his role is so restricted as to make certain valid objections difficult or impossible. The IO, Professor Alain Pellet is highly respected, and should have been entrusted with making an assessment as to whether an objection was warranted on any legal or moral grounds whatsoever, not on narrow grounds such as "significant community opposition". The key oversight ICANN has made regarding the IO's brief is this. Objectors must demonstrate significant community opposition to a proposed closed domain string in their particular "community". However, the issue is a sleeper issue. Not many people are even aware that 1,000 new strings are about to be released. That will change. And far fewer are even aware that a large number of the new domains are being sought as closed registries. That too will change. Here are the two parameters the IO may consider (only the second is really relevant to the issue of closed registries): "Limited Public Interest – The applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under international principles of law. "Community Objection – There is substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted." http://www.independent-objector-newgtlds.org/english-version/introducing-the -independent-objector/role-of-the-independent-objector/ "• For an objection to be successful, the objector must prove that: the community invoked by the objector is a clearly delineated community; and • Community opposition to the application is substantial; and • There is a strong association between the community invoked and the applied-for gTLD string; and • The application creates a likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted." http://newgtlds.icann.org/en/applicants/agb/objection-procedures-04jun12-en. pdf (PDF) Indeed, the public is being misled by some current general domain name registrars. A number of these registrars are accepting back-orders for many of the forthcoming domain extensions. However, some of these same extensions are actually subject to closed applications. Hence, many members of the public are likely planning to purchase or bid on certain domains, when in fact they may never be offered for sale or auction in the first place. So, continuing on with the contentious .book example cited above, someone operating a bookstore in the Bronx for example might be planning to buy Bronx.books. Most reasonable people would agree that a bookseller in the Bronx would have a moral right to own that domain or at least have a chance to bid on it. However, if ICANN permits Amazon to operate the .books extensions as a "walled garden" registry, the Bronx bookseller will be prohibited from owning that domain and hence from competing with Amazon to a certain degree. It will also be more difficult for that bookseller to compete with Amazon on search terms such as "Bronx bookstores" etc, particularly if hypothetically Amazon plans to launch thousands of automatically generated websites like Bronx.books and Birmingham.books. My point is this. Few booksellers are aware of this issue, though in a few years they will be acutely aware of it if their business comes under threat from a huge book monopoly. So it is difficult at the present moment for anyone to demonstrate "significant community opposition" to an application for a closed .books string. In five years time I believe it will be easy to demonstrate "significant community opposition" to many of the strings, but by then it will probably be too late. Likewise in the case of the example I used in my original comment two days ago regarding the .tires string. I and others have made a moral case against such generic words being used by a single entity for their own exclusive use. Yet it seems that for the IO to accept a complaint and then make representations about it to ICANN, the complainant must demonstrate significant opposition within the "clearly delineated community" of the tire industry and its customers. This is over-restrictive, I never considered that there is such a thing as a "clearly delineated community" in the tire industry before. Nor can I currently demonstrate "significant opposition" to the .tires string. To my knowledge, I am the sole objector to the .tires string. While I am planning to buy a new set of radials this year, I've never felt that I am part of the "tires community." I see no reason why a single person should be excluded from having the IO consider his or her representations about an issue on its pure merits, without restriction. Charles Darwin would never have been able to demonstrate a clearly delineated community that was opposed to creationism. The principle is the same. I call on the IO Professor Pellet to make a public comment about the restrictive nature of the parameters he is obliged to work with and whether in his opinion they should be revised. ------------------------------------------------ Please consider my complaint about the unnecessarily restrictive nature of official ICANN procedures to object to the proposed closed registries. At the end of the day, ICANN may receive few or no official objections, and few or no objections from the IO, creating a misleading picture painting a lack of opposition on this issue. It is misleading for ICANN to state on its website on the application pages for the various strings that no objections have been received. (Note that I have only currently looked at about 50 of the many hundreds of applications, so I can't categorically say there have been no objections.) ICANN should be more precise and factual and state that while they have received no (or few) official paid objections to the proposed strings, they have received a large number of objections in the form of comments. If ICANN reports to the US Department of Commerce that they have received no objections to the proposed "walled garden" domain names that will be misleading. The issue of closed registries is covered in detail on the SuperMonopolies.com website: http://www.supermonopolies.com Dave Tyrer SuperMonopolies dot com This complaint will also be published on the website. Some links on the ICANN forum seem to be truncated but should be functional on the website.