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lack of substitutability of gTLD's

  • To: revised-biz-info-org-agreements@xxxxxxxxx
  • Subject: lack of substitutability of gTLD's
  • From: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>
  • Date: Tue, 07 Nov 2006 13:37:56 -0800

ICANN  has asked for input on "whether the domain registration market is 
one market or whether each TLD functions as a separate market, [and]  
whether registrations in different TLDs are substitutable."

All of the unrestricted gTLD registries except .info are operated by 
corporations chartered in the USA.  As "U.S. persons", they are subject to 
the laws of the USA.. The .info registry is operated by Affilias Ltd., 
which is incorporated in the Republic of Ireland. 

Many activities that are lawful in much of the rest of the world are 
unlawful in the USA.  For example, U.S. persons may not "make travel 
arrangements to, from, or within Cuba", or "do business with Aero 
Continente, Aerocaribbean Airlines, Cubana Airlines or Vinales Tours ... 
or any of the other 2,400 individuals and organizations on a U.S. 
Government Specially Designated list,"  including making or cancelling 
reservations, requesting refunds, or otherwise "facilitating" travel to 
Cuba or on these airlines, without a license from the Office of Foreign 
assets Control (OFAC) of the USA Department of the Treasury:

http://www.ustreas.gov/offices/enforcement/ofac/regulations/t11trav.pdf

http://hasbrouck.org/blog/archives/000242.html

http://hasbrouck.org/documents/OFAC-N6.pdf

I can find no record of OFAC having issued any such license to ICANN or 
any gTLD registry operator.  It appears from OFAC's stated policies that 
no such license would be issued, even if it were applied for.

Operating an advertising or e-commerce Web site that promotes, sells, or 
otherwise "facilitates" travel to Cuba would violate OFAC's rules. 

Cuba is a significant destination for tourists from many other countries.  
For example, every major travel agency in Canada sells tours and tickets 
to Cuba, and could not compete effectively without doing so.

A travel agency in Canada -- or anywhere else in the world -- which sells 
tickets or tours to Cuba thus has only one lawful choice of unrestricted 
gTLD: .info.  Many travel agencies in Canada and elsewhere use .com or 
other gTLD domain names, but they do so in potential violation (probably 
unwittingly) of OFAC's regulations, and at risk that the registry operator 
as a "U.S. person" could be ordered by OFAC or by other legal authorities 
in the USA to remove their domain name from the DNS.

Such a travel agency could, of course, use a ccTLD such as a .ca domain 
name.  But domain names are branding, imaging, and marketing tools, and a 
ccTLD communicates a message that is not the same as that of a gTLD.

This is only one example of the types of activities that are illegal in 
the USA, but legal in some or many other countries.  For *all* such 
activities, .info is not substitutable by any other current gTLD, and the 
.info registration market functions as a separate and distinct market.

Sincerely,

Edward Hasbrouck


----------------
Edward Hasbrouck
<edward@xxxxxxxxxxxxx>
<http://hasbrouck.org>
+1-415-824-0214

"The Practical Nomad: How to Travel Around the World"
(3rd edition, 2004, 4th edition forthcoming 2007)
"The Practical Nomad Guide to the Online Travel Marketplace"
<http://www.practicalnomad.com>





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