I recently read the ICANN evaluation
report relating to each of the proposed .biz applications. I noted from the earlier
review that the two most prominent applications appeared to be those of iDomain and
Affinity.The Names Council recommended the establishment of a policy for the introduction
of new TLDs in a measured and responsible manner, giving due regard in the implementation
of that policy to (a) promoting orderly registration of names during the initial
phases; (b) minimizing the use of TLDs to carry out infringements of intellectual
property rights; and (c) recognizing the need for ensuring user confidence in the
technical operation of the new TLD and the DNS as a whole.
"The extent to which
selection of the proposal would lead to an effective 'proof of concept' concerning
the introduction of top-level domains in the future, including the diversity the
proposal would bring to the program, such as fully open top level domains, restricted
and chartered domains with limited scope, noncommercial domains, and personal domains;
and a variety of business models and geographic locations."
iDomain proposes a
standard TLD similar to .com. The purpose of such a TLD is to support the business
community and it is intended to be an unrestricted TLD. Such a TLD would compete
directly with .com and become synonymous therewith over time (one would hope). As
appears obvious, any and all shortcomings in .com that we note presently will be
shortcomings of .biz in a few short years. Conversely, many great aspects of .com
will hopefully be shared by .biz (acceptance, widespread use).
Affinity has proposed
a more expensive domain name registration process that prevents cyber squatting and
limits the speculative purchases of domain names. In light of these goals, the process
of Affinity appears significantly to reduce the overall number of name registrations
that are expected.
Clearly, the proposal of iDomains does not provide for a proof
of concept and merely builds on the existing .com concept. That said, if those are
the goals of ICANN, they should endorse the iDomains proposal. My feeling is that
there currently exist many .XXX such as .org that are not oversubscribed though they
are open to general subscription. The introduction of a new TLD such as these, has
limited value unless the public accepts the new TLDs as generic similar to the general
opinions about .com. Also, the registration of a general open TLD for business makes
no sense to me since .com is short for commercial which is business. Finally, upon
reviewing ICANN's RFP I note that this was not what was requested by ICANN. Otherwise,
they would merely have stated that they wanted the same policies as those of .com.
I
am also of the opinion that registration of dogs.com and dogs.biz will be generally
confusing if both are open unrestricted TLDs. Which is the dog.XXX I am looking for.
Which is the address I seek. It is not like two different cities with two similarly
names streets and stores. Here the TLD is accessible from your computer and is often
used by less informed consumers. Thus, an unrestricted TLD in competition with .com
appears to violate the basic goal of ICANN in putting forth this proposal.
One
of the problems highlighted by ICANN in its notices is that people feel there is
a lack of competition in the field of domain names. Though ICANN has interpreted
this to mean in running a TLD, I believe it is more accurately expressed as people
feel frustration that the names they desire are not available. When speaking of competition,
people are not so concerned with price - monopolistic behaviors - as they are with
supply. The issue to address through new TLDs is the supply of viable names that
are recognized.
Clearly, a lack of "competition" as ICANN defines it has not lead
to price gouging. Clearly access is not denied. What is limited is available domain
names. Though ICANN could introduce 1000 new TLDs, there was some thought as to Internet
stability and commercial viability of those running TLDs. This is essential to maintain
a working Internet.
Raul Echeberria (then an NC member, NCDNHC) filed comments
urging that the establishment of new TLDs was important and positive, but that rules
should be devised to avoid massive speculative purchases of domains in the new TLDs,
or trademark holders simply duplicating their existing domains.
With these comments,
he brings to the forefront two important issues. First, that cyber squatting inhibits
business on the web and second, that cyber squatting is a first world nation phenomenon
in that first world nations have resources to squat on domain names until their value
increases. People in poor countries typically do not have Internet access let alone
resources to reserve numerous domain names and hold them for prolonged periods of
time.
If ICANN truly wishes to evaluate effective 'proof of concept' concerning
the introduction of top-level domains, then it is important to provide concepts addressing
the above noted concerns. Affinity's proposal, though ICANN has found it lacking
in some ways, provides a new and interesting method to prevent cyber squatting. Firstly,
domain names are not transferable so cyber squatting to resell a name is precluded.
Secondly, each party registering a name is agreeing to operate such a business within
6 months or to already be operating such a business. This prevents cyber squatting
to preclude others.
As a Trademark lawyer, I find it interesting how the application
by Affinity has both mirrored some aspects of trademark law and ignored others. Trademark
law also provides that one must use their mark or lose it. There is no concept of
squatting on a trademark. That said, once a trademark is used and is in use, it may
be sold (because it has accrued value).
Denying individuals the right to sell
their domain name effectively makes a domain name more of a business location rental
than a purchase. In real-estate markets, taxes are used to prevent squatting. Effectively,
a piece of valuable real-estate is taxed based on its value to "encourage" use or
sale thereof. Clearly, someone would be hard pressed to leave an office building
in Manhattan completely empty and unused for a lengthy period of time so as to profit
from real estate value increases. The cash flow requirements of taxes and maintenance
motivate rental of the property.
Trademarks are not like real estate. There are
no ongoing value based taxes and there is no upkeep to speak of. Similarly for cyber
squatters, there is no upkeep or taxes. Just a renewal fee at the end of every year.
Clearly,
those who have developed the Trademark legislation in each of many countries have
identified the problem of squatting and addressed it by requiring use of each registered
mark. Non-use leads to a potential expungement of a mark. Also, even a mark that
has been used for 20 years faces expungement if its use is discontinued.
When developing
new domain names for commercial activities, it is essential to maintain address availability
over an extended period of time. This provides for sound use of resources and for
long term planning to support less developed markets and less developed countries
to allow them access to the resources. Thus, it is important to propose a system
that allows easy access to the resource but also provides a supply/demand curve that
will maintain availability for a number of years or, preferably, for a very long
time (more than 10 years). Such a system provides for sustainable growth without
rewarding the initial entries other than by granting them more selection. To prevent
cyber squatting is essential if a resource is to remain open in the future. Otherwise,
rich nations such as the U.S. will effectively reserve all names and then sell them
off as valuable resources.
$200/month for a business address is inexpensive and
is not prohibitive. $200/mo year one and then $12/month thereafter is an extremely
reasonable fee for anyone actually engaging in business. Registration of a trademark
requires a similar fee in each country of registration, which for an international
endeavor, adds up quickly.
Also, in registering a Trademark a variety of information
can and is requested of each applicant. This is not atypical. Requiring banking information
relating to a business is not an overly obtrusive burden to place on applicants.
The
proposal of Affinity, in my opinion, is one of the few proposals to meet the desired
goals of ICANN. Also the new definition of .biz prevents confusion with .com as because
it is differentiated.
The introduction of a general .biz TLD will in no way reduce
fraud on the internet. Though I recognise that ICANN only seeks to "not unnecessarily
increase opportunities for malicious or criminal elements who wish to defraud net
users," I believe decreasing these activities is advantageous as well.
Turning
to ICANN's comments on the Affinity proposal, I am struck by several shortsighted
comments. First, there is concern that Affinity has understated the number of applicants
and that the hardware may not adequately support more applications. That said, the
lottery system proposed gives Affinity adequate time and resources to enhance their
registry system to support the inflow of registrations should it greatly exceed their
projected numbers. The numbers they propose do not seem out of line with their stated
goals and I would presume that there exists an option to increase the cost in future
years to maintain the number of registrations on an annual basis within desired limits.
ICANN
appears to have misunderstood the underlying principle of the Affinity proposal.
Remove cyber squatting and the number of applicants drops substantially. It is not
unreasonable to estimate that substantially fewer than 5,000,000 real operating businesses
exist on the web with active domains. With a reasonable uptake speed and the cost
factor limiting some applications from businesses that are borderline or do not rely
heavily on their web pages and the 100,000 applications figure (as a maximum) is
not out of line. The millions of domain name registrations rely heavily on the low
cost, unused, speculation based models of .com and so forth.
Affinity addresses
the concerns over Trademark rights that ICANN wishes to address.
There is a note
that "The lack of specificity in the hardware to be used leaves some doubt about
whether it is powerful enough and fault tolerant enough." This is ridiculous. Clearly,
there is little concern that 7 Ways will fail to implement a maintainable and fault
tolerant system. There is discussion in this regard in the application.
Another
note states that "The more popular the service proved, the greater the risk that
the system design would be inadequate." This again is shortsighted. Clearly, the
proposed model is based on reasonable assumptions. Should they be in error, the additional
income will more than adequately cover the costs of expanding the overall system.
Effectively, ICANN is finding fault with assumptions. I see no similar arguments
relating to other applications wherein the 19,000,000 number may not occur and with
only 1 or 2 applications the iDomains application is not viable. Clearly, ICANN
disagrees with the estimates of Affinity. If this is the case, they should state
that this is their main concern. All of their negative comments reiterate this one
concern in order to try to bolster their stance. It is a poor application of rhetoric.
Another
note is "The validation step is a major bottleneck, and might significantly slow
down registrations. The registration fee is very high." Have it one way or
the other. If the fee is high enough to support rapid processing, it is good. If
it is too low, processing bottlenecks may occur. This is not a concern when the two
are presented side by side.
The drawbacks noted relative to Affinity's proposal
relate to it being directed toward big business. Clearly $2000 is not a cost to big
business. Designing and maintaining a commercial web site and registering trademarks
is in this cost arena. Noone complains that trademarks are only available to big
business. It is really a non-argument.
I find that ICANN wishes proof for something
that only they control and implement and for which proof will only follow implementation.
Such a request is absurd. The assumptions Affinity makes and their final analysis
seems reasonable to me. Also, should they be assigned the TLD, I would like to register
(as a small one-man business operation) patents.biz (and trademarks.biz if I'm allowed
two names). I think the idea deserves a chance. If it fails, .biz can be reverted
tot he usual domain with speculation, etc. If it succeeds, it will bring in a whole
new model for top level domain implementation that is more similar to the Trademark
model in countries around the world.
Gordon Freedman