[alac] Specific comments on new gTLDs draft
The GNSO gTLDs Committee final draft conclusions has been posted at <http://www.dnso.org/dnso/notes/20030509.gTLDs-committee-conclusions-v4.html> (just a prettier HTML version of what I'd already circulated). I am still concerned that this draft strays from answering the questions asked into unnecessarily detailed structural criteria, even as it claims to report a consensus that no a priori structure is desirable. I think the end result of such detail will be to slow and limit introduction of new TLDs. I also disagree substantively with several of the proposed criteria. I would propose sending the message below to the gTLDs committee. --Wendy --- The ALAC supports the draft's conclusion that "expansion of the gTLD namespace should be a bottom-up approach with names proposed by the interested parties to ICANN"; that "there should be no pre-determined list of new names that putative registries would bid for"; and that "expansion should be demand-driven". Beyond that basic conclusion, however, the draft's specifications of objectives or criteria have from the ALAC's perspective moved in the wrong direction since the last draft. The expansion in scope concerns us on both procedural and substantive levels. We continue to believe that ICANN should simply oversee development of a genuine competitive market for domain name services. Basing market entry on a minimal and objective no-harm evaluation is key to achieving this goal. While we understand the Council's desire to give more than a one-word answer, parts of the expanded answer lean toward regulating this nascent market more than seems desirable. The newest draft appears to conflate "substitutability" with "confusing similarity," and thus endorses anticompetitive prohibitions on similarity in the name of preventing confusion. Instead, these restrictive criteria would deny Internet users the widest range of options for name registration and deny market participants the chance to compete fully with incumbents. We have trust in the ability of Internet users to differentiate among names serving similar markets. In the light of these principles, we offer the following comments on the substance of some of the criteria: * Criterion 4, "An easily understood relationship must exist between a new gTLD and its stated purpose": The notion of "easily understood" is a function of the entity trying to understand the relationship. When used in an evaluation, this criterion would invite subjective judgment. It seems more appropriate to leave this question for the market to answer -- *after* a TLD has been introduced. Further, we would emphasize that a TLD's "stated purpose" could also mean the generic "open to any use." * Criterion 6, "Future names should add-value to the domain name system." As a key objective of the entire process, addition of future names should not diminish the value of the domain name system. Individual prospective names, however, should not be scrutinized for their added value. Once more, subjective judgment would be involved on a question which is more appropriately left for the market to answer. * Criterion 8 seems to suggest that incumbent TLD operators should have the ability to veto competitors addressing a segment of the same or a similar market, or to at least dictate competitors' policies, if these competitors use "translations or transliterations" of the incumbent's TLD string. We fail to see the benefit of this criterion to the public at large. To the contrary, it seems to unduly strengthen the position of incumbent operators over new market participants, thereby damaging competition. * Criterion 11 seems to suggest that incumbent sponsors should have privileged access to market segments which would be complementary to the markets they are serving now. This criterion would, in the case of sponsored TLDs, strengthen the role of incumbents even beyond what is suggested in point 8, and so the same concerns as above apply. * Criterion 12 seems to suggest that new TLD proposals should be designed to address markets which, if possible, do not overlap with those served by incumbent TLD operators. Once more, we reject this criterion as being anti-competitive and fail to see any benefit it might have to the public at large. * Concerning the draft's additional considerations on business continuity, we recommend that continuity planning be seen as an opportunity to permit easier entry (because it would alleviate problems attendant on registry failure), not to further restrict new entrants. -- -- Wendy Seltzer -- wendy@xxxxxxxxxxx || wendy@xxxxxxx Staff Attorney, Electronic Frontier Foundation Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html
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