Re: [wg-c-1] WORK: Question #1 New GTLDs

["Kevin J. Connolly" <CONNOLLK@rspab.com>]

Craig Simon wrote:
>
>>>> Craig Simon <cls@flywheel.com> 07/14/99 08:48AM >>>
>Ivan Pope wrote:
>
>> Either gTLDs can be wholly owned and controlled by parties outside 
>> ICANN 
>>
>> or gTLDs can be managed and controlled only under license from ICANN
>>  
>> Maybe we can discuss whether the WG wants to come out for one approach or
>> the other?
>
>Yes, these do appear to be foundational questions.

I also agree.  Notwithstanding Javier's suggestion that is thread belongs in WG-C-3,
I think it's impossible for us to make our recommendations in a vacuum.

>
>I'm interested in the second one.
>
>Is there anything preventing ICANN from managing or controlling gTLDs?
>For example, if someone claims to have trademarked a zone suffix (like
>.web), how does this state of affairs impede or enable ICANN's power to
>act with regard to that gTLD? 

First: What I am about to say is NOT LEGAL ADVICE.  
If it were legal advice, it would come with an invoice.

Second: the answer to Craig's question depends on a case-by-case analysis of
the situation.  For example, "web" could be a trademarked brand of diaphanous,
lacy nighties.  Or, perhaps, a brand of telecommunications hardware.  But as applied
to the Internet, it's pretty darned descriptive.  It does not, imho, confer intellectual 
property rights.

In other words, I do not believe that IO Design's trademark application for .web, or
CORE's trademark application for any of "its" domains, impedes ICANN's ability to
govern domain name delegations.  I do not believe there are any other true 
impediments, either.

I believe that a successful approach to the issues before us will require recognizing
several truths:

(A) There is a useful distinction between the registry and the registrar.  
The registry publishes the authoritative zone file. There can be only one authoritative 
zone file for .com.  
The registry is a natural monopoly.  
Because it is a natural monopoly, the registry should be regulated.  Not in every case must 
it operate as a non-profit, but because it is a monopoly is must be regulated in the 
public interest.

(B) There is no good reason to permit "everyone" to have authority to create second-level domain 
name entries in the zone file.  On the contrary, restricting that authority is essential to protect the 
public interest and the stability of the Internet.

(C) At the same time, we must be sure that the barriers to entry are low enough that registrars
are not earning monopoly profits.  We cannot enable a system under which a small cabal of
registrars is permitted to leverage the registry monopoly into their own little sinecure.

If CORE establishes a robust and fair set of criteria for new members, then there is no obvious 
impediment to allowing CORE to operate a registry for one or more gTLDs and its membership 
to have the privileges of acting as registrars for those gTLDs.  I do not believe that the idea of
a gTLD as private property, under which a single entity acts as keeper of the registry and has
exclusive authority to write to the zone file, is good policy.  I leave aside for now the question of
whether that policy would be legal or not


>
>And by  "managing" or "controlling," I presume you are speaking at a
>minimum of adding the gTLD into the IANA root in a way that matches the
>gTLD with a specific registry operator. What else?

The establishment of criteria for the approval of the registry operator, i.e.,
Implementation and fair, auditable operation of the shared registration system.


Kevin J. Connolly
<As usual, please disregard the silly trailer>

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