Re: [gnso-rap-dt] for discussion: the definition of "abuse"

[George Kirikos <icann+rap@xxxxxxxx>]

Hello,

On Thu, Apr 16, 2009 at 10:45 AM, Roland Perry wrote:
> 16:33:14 on Wed, 15 Apr 2009, George Kirikos writes
>> I would strongly disagree with that definition for gTLDs (ccTLDs can
>> do whatever they want).
>
> What? Even new gTLDs like (for example) .paris. They could easily have a
> condition that you mustn't advertise nazi memorabilia for sale (because
> that's illegal in France). A new gtld for .sydney might not have the same
> issue.
>
> OK, these are almost "pseudo ccTLDs". Another example: you can't register in
> .museum unless you are a museum. It would be an abuse if you pretended to be
> a museum. Few other gTLDs have a similar restriction.

As things currently stand, yes, I would oppose it even for new gTLDs
like .paris (in your example). The reason I would do so is that ICANN
currently considers them equal and identical to existing gTLDs like
.com/net/org/biz/info, and because existing gTLDs have the infamous
"equitable treatment" clause, see 3.2(b) of say:

http://www.icann.org/en/tlds/agreements/verisign/registry-agmt-com-01mar06.htm

"Equitable Treatment.  ICANN shall not apply standards, policies,
procedures or practices arbitrarily, unjustifiably, or inequitably and
shall not single out Registry Operator for disparate treatment unless
justified by substantial and reasonable cause."

Currently, there are classes of "sponsored gTLDs" like .jobs or .aero
or .museum and others (even though some of them act like they're
unsponsored and open, cough, .asia, cough) that do have the ability to
set their own rules because in theory they have a natural constituency
that is supposed to formulate policies (for .asia, that constituency
being all the people in Asia, oh, that's several billion people, PLUS,
anyone outside Asia who can find a single person in Asia to act as one
of their contacts in the WHOIS). That separate status as "sponsored
gTLDs" doesn't trigger the "equitable treatment" clause in
com/net/org/biz/info, because that difference between sponsored and
unsponsored status constitutes "substantial and reasonable cause."

This is the reason we also oppose the elimination of price caps in new
gTLDs (amongst other risky stuff in the new gTLD draft contracts),
because that triggers the above equitable treatment clause in existing
gTLDs. Since ICANN is putting equitable treatment clauses in every
contract, one has to spend too much time worrying that a bad new
clause in some minor gTLD will cause a cascade effect with every gTLD
registry operator wanting that same clause. It's a good stimulus
package for lawyers paid by the hour, but not good for everyone else.

Now, as you suggest, gTLDs like .paris truly are "pseudo ccTLDs" in
the eyes of most people. If ICANN was to create a separate class of
gTLDs (say Geo-TLDs) in a similar way they created "sponsored TLDs",
then I'd have less concern, because I would not have to worry about
any bad things happening in those Geo-TLDs affecting registrants in
com/net/org/biz/info. Those Geo-TLDs might even be a subcategory of
Sponsored TLDs (although I'm sure many of the folks in the ccNSO could
make a strong argument that those TLDs belong in the ccNSO structure
instead).

Sincerely,

George Kirikos
http://www.leap.com/