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

[Kent Crispin <kent@songbird.com>]

On Mon, Jul 12, 1999 at 11:15:56AM -0400, Jonathan Weinberg wrote:
> 	Kent writes that: [1] if we introduce new general-purpose TLDs, then, at
> least some of the time, firms will simply re-register their existing .com
> names in the new TLDs;

Actually, I was making exactly the reverse point, in support of your 
position...

> [2] we need more central planning of the name space,
> so as to prevent new registries from picking unacceptable TLDs such as .usa
> or unused ISO-3166 names; [3] "the first few TLDs *must* be introduced in a
> very very controlled fashion"; and [4] registries' claimed trademark rights
> in their TLDs will vastly complicate ICANN's ability to enforce its rules.
> (I apologize for the paraphrasing, but I find it really hard to read
> interlined comments at the third level and beyond; I've copied Kent's
> entire message below).
> 
> I agree that, some of the time, firms will re-register their existing .com
> names in new general-purpose TLDs.  NSI, as Kent points out, is encouraging
> people to do just that in .net and .org. 

No -- I was pointing out exactly the reverse -- that many (probably
most) companies do *not* register in all three of .com, .net, and
.org.  New gTLDs will almost certainly continue this trend.  I was 
agreeing with your point, as I think you will see if you carefully 
read what I wrote.

> 	I also agree that ICANN should be able to impose *some* limitations on
> possible TLD strings.

Which implies, therefore, that ICANN must have a procedure for 
approval of TLD strings.

>  Someone could do a lot of mischief will .usgov, say.
>  Existing trademark laws are more than sufficient to prevent unauthorized
> folks from seeking to run .ibm, but it makes sense to me that ICANN could
> have a role with respect to TLDs that are more generally deceptive, and
> thus raise consumer protection issues.  I can also understand why ICANN
> might seek to impose limitations on .fuck, say, or .godhatesfags (though
> Lord knows that sort of thing has been a headache for NSI).  It's a long
> way, though, from there to the view that the name space must unfold
> according to a central plan.

As far as I know, no one at this point is suggesting a central plan,
and I'm not sure where you got that idea.  Instead, what has been
proposed is a *process* whereby new gTLD names are justified prior to
inclusion in the root.  The process I have advocated in the past is
that a proponent of a gTLD name should make the case in the
appropriate public forum (the DNSO, now).  That is, TLD *names* must 
go through a public approval process.

This means, therefore, that a registry can't say "I have a secret 
TLD name that I don't want to reveal because it will impact my 
business plan, but you can examine my infrastructure for technical 
correctness." 

In other words, ICANN approves *names* as well as registries.

> We can address these concerns in a much more
> limited way, simply by promulgating a few rules describing categories of
> off-limits TLDs, and designating a decisionmaker whose authority is limited
> to the question whether a proposed name violates those rules.

That means that the designated decisionmaker would have to know that
(hypothetically) "bax" is a deadly religious insult in some language. 
A public process won't catch *all* such problems, either, but an
extended period of public review and debate over a name is certainly
going to catch a lot more than any single decision maker would. 

Perhaps more important, though: If there is anything that the DNS
wars have made absolutely clear, it is that public review and debate
is the nature of this game. 

> it means.  Is this to say that new TLDs should be introduced more slowly
> than operational considerations would otherwise dictate?  

Depends on what you mean by "operational considerations".  It is a 
general character of operations that when you introduce something 
new and untested, you do it in a controlled and careful way.

> Why, exactly,
> should that be so?  Because otherwise INTA will scuttle everything?  (Is
> that, in fact, true?)  Or is the argument (as Kevin urges) that the first
> new TLD should be one with only limited appeal, to minimize operational
> challenges?  Or is the point something else?

The point is something else, much more basic:  The fundamental 
operational uncertaintity in this matter is not technical, but 
policy.  We don't know how policy mechanisms will respond to the 
introduction of new gTLDs.  It is this uncertainty that dictates 
slow introduction.

> 	Finally, as for "independent intellectual property claims on the TLD
> name": Kent raises the issue of ICANN's enforcement powers if a TLD
> registry refuses to follow ICANN rules.  As Chris points out, though, the
> complete answer to this question lies in the contract between ICANN and the
> registry operator.  That contract should provide for an agreed-upon
> procedure to resolve such disputes, and the registry should agree in the
> contract that the outcome of that procedure trumps any asserted TM rights.
> If there's more to this problem, I don't see it (and I've been a lawyer for
> a long time).

That's the "argument from authority", right?:-)

Interestingly enough, these contract clauses you describe are an
example precisely the kind of "signing over of rights" I was
describing.  But there is legal reality, and there is practical
reality... 

Suppose IBM proposes a .ibm TLD, and we say "Of course.  You just 
sign this contract that says that if there is a dispute over the 
TLD, you agree that the result of the dispute resolution trumps your 
IP rights in .ibm."  IBM says "Of course."

Now, let us compare the legal budgets of ICANN and IBM...

In my opinion it would be smart to avoid, to the extent possible, all
such legal conflicts, *especially* in the beginning.  The best way I
can think of to do this is to just require that TLDs be the moral
equivalent of public domain (I realize that "public domain" has
specific legal meaning -- what I would prefer is something like the
GNU "copyleft", but I don't know the appropriate legal terminology.)

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain