SuperMonopolies.com - Addendum - Complaint About Objection Procedures

[Super Monopolies <dave@xxxxxxxxxxxxxxxxxxx>]

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

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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.

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(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.

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(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.

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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.