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

[Jonathan Weinberg <weinberg@mail.msen.com>]

	I agree with Kevin Connolly, Javier Sola, Chris Ambler, Milton Mueller and
Kent Crispin (how's that for consensus?) that there should be new TLDs.
Expanding the number of TLDs will increase consumer choice, and create
opportunities for entities that have been shut out under the current name
structure.  It may *solve* part of the current trademark domain-name
tension, by allowing different folks to register, say, acme.com, acme.biz,
acme.shop and acme.per, just as different entities (like Sun Computers and
Sun Oil) use the same strings to identify their businesses in meatspace.
It may enlarge noncommercial name space.  It seems to me that we should
demand good reason before artificially limiting the number of gTLDs short
of the bounds of the technically feasible and operationally stable.

	Kevin suggests that adding new *general-purpose* TLDs won't do a lot of
good, b/c the entities with .com registrations will simply run out and
register the same domain names in any new general-purpose TLDs as well.  I
wonder, though — is that really what would happen?  At least some of the
time, in the race to the registry, other entities will get there first.
And in situations where a bunch of different people or firms *each* have a
legitimate interest in using a particular string in their domain name, I
wonder if a proliferation of general-purpose gTLDs might most easily allow
them the opportunity to do just that.

	When I first started thinking hard about these issues, it seemed to me
that all new gTLDs should be limited-purpose.  It seemed to me that the
ideal would be for IANA's successor to establish some system of
sector-specific domains, such as .transp and .health, so that users could
rely on the structure of the DNS in seeking the URLs associated with
particular businesses or content providers.  But the more I worked on these
issues, the more I began to doubt this sort of approach.  The genius of the
Internet has always been the degree to which control resides at the edges,
not at the center.  Such experience as I've had with governments and other
central planners causes me to doubt whether ICANN, or any other central
planner, can really structure the DNS better than can the marketplace
choices of Internet users, deciding which TLDs *they* will patronize (by
registering domains there) and which they won't.  This causes me to be
skeptical of any approach calling for extensive central planning of the
name space.

	Kevin indicates that the trademark community will oppose new
general-purpose TLDs even more fiercely than they oppose new
special-purpose TLDs, and I think he's right.  I'm not sure, though, that
as a result we should simply abandon any thought of new general-purpose
TLDs at the outset. If we ultimately decide that the best approach is one
that will lead to the creation of some general-purpose and some
limited-purpose TLDs, let's say so, and the negotiation with the trademark
community can come later.  (I don't think any plausible approach will lead
to the creation of only general-purpose TLDs.  Certainly a marketplace
approach wouldn't do so — if ICANN does what Chris wants, say, and lets
each new registry pick its own TLD, all evidence indicates that some would
be general-purpose, like .web, and some would be limited-purpose, like
.per.  ICANN doesn't have to decree charters in advance to accomplish that.)

	Finally, I think Kent's concern about "intellectual property encumbrances"
addresses a side issue.  Right now, various folks are arguing about who
should get the right to operate particular registries, and how they should
be run.  Each side has sought to bolster its legal position, in those
debates, by seeking governmental recognition of purported trademark rights
in the TLD.  But the main dispute is over the $64 question of who gets to
run the disputed registries, and how.  If those issues can be solved, then
getting the combatants to lay down their legal weapons won't be a big deal
(and I'm skeptical that the claimed TM rights will work in any event).  If
they can't be solved, then we have a deeper problem.

Jon


Jon Weinberg
Professor of Law, Wayne State University
weinberg@msen.com