Comments from Minds + Machines on DAG 3

[Antony Van Couvering <avc@xxxxxxxxxxxxxxxxxxxx>]

Dear ICANN,

Thank you for giving Minds + Machines the chance to comment on the latest 
(last? -- oh please let it be the last!) Draft Applicant Guidebook.

There are a few awful relics in the Guidebook, but frankly the time has come to 
close the book and move on. The tiresome manoeuvring for that one last piece of 
special treatment by this interest or that has got to come to a stop.   The 
Guidebook is never going to get everything right, and it's time that ICANN 
stopped trying to solve things that are only ever going to be settled in court, 
if ever at all.

 From the perspective of Minds + Machines, the current Guidebook is a flawed 
but workable document. But because ICANN has determined that there should be 
another one, here's our view of what ought to be fixed for the ***FINAL*** 
Guidebook:

1. Post-Delegation Dispute Mechanism.  This is a deeply flawed provision that 
eviscerates ICANN's authority over its own contracts and puts new TLDs in 
existential peril by allowing a single panelist, on a complaint by a single 
complainant, even a frivolous one, to entirely shut down a new TLD registry.  
(The flaw is not improved, by the way, by allowing this same "final solution" 
be decided by a 3-person panel.  If a registry has a contract with ICANN, it's 
up to ICANN to shut it down, for violation of that contract.  This is not 
something to be farmed out to 3rd parties.) We see nothing wrong with trademark 
holders having a method to prevent abuse at the top level -- for instance, to 
shut down a registry for .APPLE that claimed to be about selling apples but 
actually wanted to trade on the popularity of the computer maker.  But to 
extend this method to second-level domains is wrong and wrong-headed.  

It's a guarantee that with the best will in the world, every registry will be a 
victim -- just as brand owners are -- of cybersquatting. Even supposing that a 
registry decided to bankrupt itself by hand-checking every application, how 
will it know what is cybersquatting or not?  WIPO and NAF panelist are paid a 
lot of money to decide these questions, and even they can't agree with each 
other.  It is impossible for a registry to preempt fraudulent registrations.  
That's why there is a post-facto procedure for ferreting these out (the UDRP) 
and another one in the works (the Rapid Takedown provisions recommended by the 
IRT).  While we agree that trademark holders and other rights holders need a 
way to deal with the plague of cybersquatting, letting the Post-Delegation 
Dispute Mechanism touch on second-level names is unfair, costly, and extremely 
susceptible to abuse. 

In this matter, we agree entirely with Jeff Neuman, a member of the IRT who 
helped draft the original Post-Delegation Dispute Mechanism, when he says 
http://forum.icann.org/lists/3gtld-guide/msg00001.html) that the version that 
ended up the in the Guidebook is not at all what was agreed to by the IRT.   

This is an horrific addition to the Guidebook that needs to be milked of its 
poison.  The easiest and fairest way to do this is to have it treat of 
top-level domains only. There is no place for this with regard to second-level 
domains, which are covered (currently) by the UDRP and (prospectively) by the 
Rapid Takedown Provisions. 

2. Global Protected Marks List. Not even trademark holders can agree on this 
one -- otherwise why would this list, first proposed at the beginning of the 
20th Century (the *previous* century), have never been constructed by WIPO or 
any other intellectual property organization?  The idea that ICANN would 
suddenly create what intellectual property savants have been unable to conjure 
over the last 100 years defies reason. If ICANN is foolish enough to take this 
on board, it will become utterly mired in legal disputes as intellectual 
property interests duke it out over whether their brand is sufficiently famous 
to make it onto The List.  ICANN should send this back to the 
IRT/WIPO/AIPLA/INTA and tell them that when they have come up with The List, 
ICANN will consider implementing it.  Until then, this dubious suggestion is 
simply expensive and dangerous. 

3. We fully support the addition of an Electronic Rights Clearing House, one of 
the IRT recommendations.  We think it will help registries immensely to 
establish fair and complete Sunrise processes, watch services, and rapid 
takedown procedures.

4. The provision in the prospective ICANN-Registry contract that allows ICANN 
to change the terms of the contract at will, with no notice, and with very 
limited appeal is a non-starter.  ICANN itself would never sign such a 
contract, and neither would anyone else within earshot of a lawyer.  This 
provision goes against every notion of equity and fairness.  ICANN will end up 
spending an inordinate amount of time fighting over it, and because it's going 
to have to give it up in some cases, it will end up giving it up in others as 
well.  Come on guys!  Figure out a way to give proper notice for changes and if 
it's an emergency then have the Board vote to establish a Temporary Consensus 
Policy provision.  

5. The bar for reaching "community" status is too high.  An interim suggestion 
(between DAG 2 and 3) for lowering the scoring to 12 was welcome -- a point 
makes a lot of difference.  Somehow it got raised up to 14 in DAG 3.  We 
recommend making it possible for real communities of interest to qualify as 
communities.  The gay community is a real community, but it won't qualify under 
current rules. The Irish diaspora (or Armenian, or Iranian) is a real 
community, but they won't qualify.  This needs to be fixed. 

In addition -- we strongly recommend:

1. Stop setting up "overarching issues" without consulting the ICANN community. 
Then stop making them "threshold" issues" without giving anyone a chance to 
comment on whether they really are that. The genesis of this pernicious phrase 
is odd.  It comes from staff's interpretation of comments made to DAG 1 (see 
http://mex.icann.org/files/meetings/mexico2009/transcript-applicant-guidebook-qa-02mar09-en.txt).
  They were not in response to the Guidebook per se, but rather to issues 
outside the guidebook that some commenters worried about. And the reason for 
their inclusion as a major stumbling block is mysterious.  Reading the 
transcript, we find a worrying lack of justification for them:

Q: How many commenters brought up these issues?  
A: ICANN did not specify this

Q: How justified were these concerns?  
A: ICANN did not explore this

Q: How relevant are the concerns to the new TLD process?
A: ICANN also did not explore this

Q: Have these questions been asked and answered in the past?
A: Yes, multiple times, by the ICANN community and with studies, but this was 
not mentioned  

So while proponents of new TLDs have to prove the unprovable (economic demand) 
and know the unknowable (effect of root scaling), detractors have simply, 
without any justification whatever, to substantially delay the process by 
stamping their feet and say they're not satisfied that the almighty four 
overarching issues have been addressed.  These overarching issues were 
introduced into the new TLD process without proper examination, and it's 
improper now to give them a greater weight than the Policy Development Process 
which led to recommendation for new TLDs.  There has been inadequate 
justification (has there been any?) for the raising of these anti-TLD 
sentiments to iconic status, and it's time that ICANN stopped bowing to this 
idol.

2. Stop doing new economic studies just because some people don't like the 
results of the old ones. Since when has an economic study proven anything 
except that economists don't know what they're talking about?  The track record 
for economists hasn't been very good recently.  Check your tax bill if you 
doubt this.  This need for another economic study is another of the 
"overarching issues" that somehow attained the status of divine revelation. 
There's nothing -- ZERO -- to suggest that (yet another) economic study is 
going to give anyone any insight into what will happen with new TLDs.  Why 
don't you just look at the queue of people lining up to do new TLDs?  They are 
cities, regions, businesses, associations, and yes, brands!  The brands aren't 
announcing but they're all getting ready to apply.  Ask Mark Monitor or 
Fairwinds (under oath), or other companies who work with brands if this is true 
or not.  There is no serious doubt that there is sufficient demand to launch 
new TLDs. There may be some doubt as to whether there is enough to fill the 
coffers of all applicants, but that's an entirely different question and it was 
been long ago determined -- or at least it's a concept that gets lip service -- 
that competition and market forces will sort out the good from the not-so-good. 
We've talked with a good number of people, within ICANN and without, about the 
predictive value of an economic study. Not a single person has been able to, or 
even tried to, sustain an argument that any economic study will have any kind 
of value if it tries to predict specific outcomes.  Drop this, it's stupid. 

3. We see tremendous value in the proposed Expressions of Interest submission.  
This would help ICANN, governments, and applicants by providing actual data to 
use in making decisions about ICANN resources, root scaling, public order and 
morality, trademark infringement, and other areas.  

Thanks again for the chance to comment.

Sincerely,

Antony Van Couvering
CEO, Minds + Machines