ACT Comments regarding New gTLD Board Committee Consideration of GAC Safeguard Advice

[Jonathan Zuck <jzuck@xxxxxxxxxxxxx>]

New gTLD Board Committee:
The Board New gTLD Committee is seeking comments on the advice from the 
Governmental Advisory Committee in the Beijing GAC Communiqué. I submit the 
following comments on behalf of the Association for Competitive Technology 
("ACT") regarding the proposed Safeguards for new gTLDs.
Background
ACT was founded in 1998 by independent software developers concerned about how 
the interactions between major companies and policy makers affected small and 
medium sized developers. ACT is listed on the European Union Transparency 
Register and its DC office is a registered 501(c)(6) non-profit organization in 
the United States. Specifically, the institutional purpose of ACT, as detailed 
in its U.S. charter documents, is directly related to the benefit of the 
application developer community because its purpose is to "enhance public 
understanding of the high quality of its members' products and services and its 
members' commitment to innovation and technological advancement."
ACT's membership includes more than 5,000 small and mid-size mobile application 
"app" developers and information technology firms.  ACT is an international 
group of leading members of the Industry.  In addition to its small business 
membership, ACT includes Sponsors such as Apple, AT&T, BlackBerry, eBay, 
Facebook, Intel, Microsoft, Oracle, PayPal, VeriSign, and Verizon.
Benefit of Safeguards
As a representative of the app community, we appreciate the Safeguards 
suggested by GAC to protect the .APP gTLD. "App" is a generic term used 
throughout a wide industry. "The term 'app' is associated with a wide variety 
of applications, including mobile applications, web- and browser-based 
applications, cloud hosted applications and even desktop applications."[1]
It is important that registry access should serve a public interest goal for 
gTLD strings representing a generic term which defines an entire industry. A 
responsibly-run gTLD has the potential to help a growing industry like the app 
industry. However, allowing one participant in an industry to run the .APP gTLD 
in an anti-competitive and monopolist manner serves only to stifle the great 
success mobile app developers have built.
While mobile applications have been in existence for quite some time, apps 
leapt into prominence when the Apple App Store was opened in conjunction with 
the launch of the iPhone in 2008. Since then, apps have been developed and sold 
all over the world and have a significant impact on the international economy. 
There are currently thousands of developers all over the world and even more in 
the app support industry.
According to Gartner, Inc., global revenue from traditional app stores is 
expected to rise to $25 billion this year, an increase of 62%.[2] And apps now 
being using in places unthought-of just a few years ago, like televisions and 
cars.
It is vital to take special care when assigning strings representing generic 
terms like .APP because those terms have the opportunity to artificially define 
an entire industry. Generic terms logically lead consumers to assume that the 
gTLD represents the industry as a whole. "These strings are likely to invoke a 
level of implied trust from consumers, and carry higher levels of risk 
associated with consumer harm."[3] For example, within the United States, it is 
assumed that any higher education body will have an address which includes 
.EDU. Many services which cater to university and graduate students require 
confirmation of student status with an .EDU email address. The .EDU string, a 
generic term, is accepted by the public as a certification of educational 
status.

With the .APP gTLD, it would natural for consumers to assume that all 
"licensed" developers possess an .APP address. If a group or class of 
developers is blocked from uses of the .APP gTLD, that results in manufactured 
limitations on the industry. For example, what if the .APP gTLD had existed 
five years ago and those running the exclusive access to the gTLD determined 
that a developer building apps for automobiles did not satisfy eligibility 
requirements. A large area of opportunity for app developers could be stifled 
because the registrant did not allow for innovation.

Mobile app developers rely on the internet; it is the place where their 
businesses exist. If an entity is allowed to operate a string representing a 
generic term in a manner which cuts out groups of developers, it will 
effectively cut them out of market entirely.

The app community continues to innovate quickly and in many different 
directions. What it means to be an app developer has evolved tremendously over 
the past ten years and it has given great benefit to the public at large. Apps 
are now a vital part of business, communication, education, health care, and 
entertainment. The public interest goal of allowing for continued growth should 
be taken into serious consideration for strings representing generic terms, 
like .APP.
Specific Application Concerns
Even where applications for the .APP gTLD purport to serve the app industry, we 
urge ICANN to take GAC's advice into consideration. As the representative from 
the app developer community, the application for the .APP gTLD submitted by 
Google is of particular concern and illustrates the importance of the GAC 
advice.
Charleston Road Registry Inc., an American company wholly owned by Google, Inc. 
(hereafter "Google") applied to run the .APP gTLD as a closed registry with 
Google as the sole registrar and registrant. On April 6, 2013, Google submitted 
to the New gTLD Program a modified application for the .APP gTLD. In the 
modified application, Google proposes to run the .APP gTLD as "domain space for 
application developers."[4] The modified application asserts that Google "plans 
to develop and publish eligibility criteria for all registrants in the proposed 
gTLD and will work with its registrars to execute the eligibility verification 
process. This process will imbue additional meaning to all second-level domains 
in the gTLD and enhance the gTLD's reputation by establishing an authoritative 
community of content providers."

Google's amended application would allow Google to operate the gTLD in a manner 
not "consistent with general principles of openness and non-discrimination,"[5] 
since allowing Google to create an eligibility verification process would allow 
Google to artificially define the app market. While Google's application 
asserts that it will allow use of the gTLD by app developers from across all 
types of applications, it has put forward no indication how such verification 
process would work or how it would allow for innovation in the app industry.

GAC advises that "[t]he registry operator should administer access in these 
kinds of registries in a transparent way that does not give an undue preference 
to any registrars or registrants, including itself, and shall not subject 
registrars or registrants to an undue disadvantage."[6] However, it would be 
easy for Google to use its control over the .APP gTLD to further its business 
interest at the expense of app developers. Even if developers were allowed 
access to the .APP gTLD, use could come with requirements regarding advertising 
and use of Google services adverse to developers' business models.

Further, while individual developers could be allowed to register the domain 
name related to their businesses, Google could control the generic domain 
names, such as education.app, business.app, and health.app. These domain names 
would, like any other generic term, be seen as representative of the specific 
app community as a whole. If a developer builds educational apps but is not 
allowed to be listed within the education.app site, it could signal to 
consumers that they are not a "trusted" or "verified" app developer. Google 
could use these generic domain names to further its Android operating system 
and the apps that run on it at the expense of app developers.

The above examples illustrate the importance of GAC's suggestions. They would 
allow ICANN to fully consider and evaluate the ramifications of applications, 
especially for strings representing generic terms which could have a severe 
impact on an entire industry.

Conclusion

GAC's advices regarding safeguards for new gTLDs advance the goals of the new 
gTLD program. We urge ICANN adopt such advice in their consideration of 
applications for new gTLDs.

Sincerely,
Jonathan Zuck


Jonathan Zuck | President | Association for Competitive Technology
                                                                        
202-331-2130x101 | 202-331-2139 (fax) | 
jzuck@xxxxxxxxxxxxx<mailto:jzuck@xxxxxxxxxxxxx>

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[1] Google Letter to Christine Willett, pg. 4 (April 6, 2013).

[2] Jessica E. Lessin and Spencer E. Ante, "Apps Rocket Toward $25 Billion In 
Sales" Wall Street Journal (March 4, 2013) available at 
http://online.wsj.com/article/SB10001424127887323293704578334401534217878.html.



[3] GAC Communiqué - Beijing, People's Republic of China, Annex I, pg. 8 (April 
11, 2013).

[4] Google Letter to Christine Willett, pg. 4 (April 6, 2013).



[5] GAC Communiqué - Beijing, People's Republic of China, Annex I, pg. 7 (April 
11, 2013).



[6] GAC Communiqué - Beijing, People's Republic of China, Annex I, pg. 11 
(April 11, 2013).