Re: [wg-c] Who should vote for new gTLDs

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

Kent --

	We've got two sets of issues here.  One is politics; the other is policy.
Both are worth discussing.

	As for the politics — I agree with you that a variety of trademark folk,
in the White and Green Paper comments, urged that seven new TLDs were too
many.  You may not be able to "document" that large TM interests lobbied
the USG directly, but I was working on domain-name issues for the U.S.
government back in 1997 (I was a scholar in residence at the FCC then), and
I remember that lobbying well.  Lots of folk will push, as hard as they
can, the position that ICANN should add as few new TLDs as possible, as
slowly as possible.  So I think that convincing ICANN to authorize a lot of
new TLDs will be a major challenge.  I don't think we should abandon that
idea, though, if we think it's good policy.

	And I think it is good policy.  You argue that it isn't, because the
addition of a lot of new gTLDs will impose "incalculable" costs on
trademark owners (or, alternatively, "billions of dollars in legal bills").
 Near as I can tell, though, the effects on trademark owners of the
addition of new gTLDs have been vastly overblown.  Bear in mind that we
will have an ADR procedure for cybersquatting.  We may have a "famous
marks" procedure as well.  I see no reason to believe that the additional
trademark policing costs attributable to new TLDs will be nearly as
overwhelming as some of the numbers I've seen thrown around.  And I don't
think we should deform our DNS policy simply to minimize trademark policing
costs.  As David Maher said in a post to this list a while back: "The
Internet is much bigger than the ‘marketplace.' We are serving everyone now
on the Internet and those who will be.  There are other interests at least
as important if not even more important than IP."

Jon 


Jon Weinberg
weinberg@msen.com
http://www.law.wayne.edu/weinberg



At 07:21 PM 7/27/99 -0700, Kent Crispin wrote:
>On Tue, Jul 27, 1999 at 11:37:31AM -0400, Jonathan Weinberg wrote:
>[...]> 
>> I think it's safe to assume that in the short to medium term, ICANN will
>> authorize some number of TLDs falling in between these extreme cases: fewer
>> than 100, and more than three.  My own thoughts are that we'll be much
>> better off if ICANN aims for the high side -- that is, if it embraces a
>> "lots of TLDs" approach.  That's open to objection; in particular, some
>> folks argue that such an approach is *politically* infeasible, so we ought
>> simply to forget about it.   But I think it's useful to bring this question
>> out in the open, rather than leaving it as an unarticulated assumption of
>> various folks' positions.
>
>In my case it is certainly not an assumption -- it is a deeply
>considered position after three years of public debate -- hardly
>"unarticulated" :-).  
>
>When I started, I thought, like you, that the obvious thing to do was
>have many gTLDs, as expressed, for example, in
>http://songbird.com/kent/papers/draft-iahc-stldla-crispin-00.txt. 
>(That was written in Nov 1996, before the term "registrar" came into
>vogue.)
>
>The concrete, dollars and cents effect on TM owners of adding a
>hundred new gTLDs is, literally, incalculable.  It may be that in the
>long term the effect will be good, but in the short term it may cost
>billions of dollars in legal bills.  No bland academic assurances
>from you or Milton or Craig can dispell that uncertainty, and nothing
>you can say is going to make them look with favor on the idea of
>dumping 100 new gTLDs into the root.  
>
>If you go back to the white and green paper comments, you will find
>that there have been numberous responses from TM interests that are
>against any new TLDs at all -- the 7 proposed by the IAHC were too
>many.  Moreover, while I can't document the following assertion for
>obvious reasons, there is no real doubt that large TM interests have
>lobbied the USG directly -- they don't send their representatives to
>participate in email lists when there are millions of dollars at
>stake.  (A large company (say Disney) has thousands of trademarks.)
>
>So yes, it will be politically very difficult to sell the idea of
>adding a whole bunch of new gTLDs.  This is obvious both from the
>concrete experience of the past couple of years, but even more, from
>common sense understanding of the positions of the players. 
>
>But more than politically difficult, it would be flat out
>irresponsible public policy.  We are trading the cost to TM holders
>who have, consertively estimating, hundreds of billions of dollars
>(probably trillions) in intellectual property, against the monetary
>value of the hypothetical efficiencies to be gained by having more
>gTLDs.  They are not in the same order of magnitude. 
>
>The TM interests are not comfortable with this process, and the fact
>that they are participating as much as they are today is significant
>forward progress from the early days of the IAHC.  They are for the
>most part, I think, willing to contemplate the addition of more
>gTLDs -- a *few* gTLDs, under carefully controlled conditions.  Seven 
>may be too many.
>
>I also believe that TM interests are much more comfortable with the 
>notion of chartered TLDs -- TLDs with rules concerning membership -- 
>then they are with "open" TLDs.  So, for example, I believe that a 
>".nom" TLD with the strict, easily enforcable rule that an SLD must 
>be the same as one of the words in the name of the registrant, would 
>be trivial to approve, while a generic ".web" will be far more 
>difficult to get approved.
>
>I feel a little awkward speaking for TM people.  But they have 
>historically been very quiet in these debates, though very 
>influential, nonetheless.
>
>-- 
>Kent Crispin                               "Do good, and you'll be
>kent@songbird.com                           lonesome." -- Mark Twain
>
>