Yet another controversy has struck ICANN’s new TLD program, leading to yet another call to change the rules in the middle of the game. This time, however, the protests do not come from trademark owners but from registrars, who are making misleading appeals to freedom and human rights. This blog explains why their concerns are misguided.
There are several applications for generic words at the top level, such as .BOOK, .MUSIC, or .CLOUD. Some of the applicants for these generic terms have chosen to manage the name spaces rather than offering registrations to anyone and everyone. Amazon, for example, would make .BOOK an extension of its online bookstore. As an extension of Amazon’s bookselling business, it would not be part of a mass-scale domain name registration business. In other words, this is a business model choice. It is not different in principle from Barnes and Noble registering BOOKS.COM or C/Net news registering NEWS.COM.
Yet some are complaining that these business model choices are dangerous and troublesome. A letter circulated by an Irish registrar, Michele Neylon, claims that:
Generic words used in a generic way belong to all people. It is inherently in the public interest to allow access to generic new gTLDs to the whole of the Internet Community, e.g., .BLOG, .MUSIC, .CLOUD. Allowing everyone to register and use second level domain names of these powerful, generic TLDs is exactly what we envisioned the New gTLD Program would do. In contrast, to allow individual Registry Operators to segregate and close-off common words for which they do not possess intellectual property rights in effect allows them to circumvent nation-states’ entrenched legal processes for obtaining legitimate and recognized trademark protections.
This argument has a superficial appeal to human rights advocates, but makes no sense when examined.
We can quickly dismiss the argument that it circumvents trademark protections: domain names are not, in and of themselves, trademarks, and exclusive use of a TLD string does not by itself give anyone trademark rights. The registration of NEWS.COM did not tie up the use of the word “news” by millions of people and businesses, for example. It simply allowed anyone typing the domain into their URL window to go to their site. It probably also generated some additional traffic, but no one can argue that C/Net domaintes the world’s news outlets because of it.
As we all know, DNS strings must be exclusively registered to someone. Whoever that person/organization is must set policies regarding what names are registered under it, and how. Internet freedom requires that registrants of a domain should be able to determine their own level of “closedness” or “openness” of the registrations under it. This is already true at the second and third levels of the domain name space, and should also be true of a top-level name.
Free expression rights mean that people who own and run a media resource have editorial control over its content and practices. No one can claim that the IGP website, which is registered under the generic term internetgovernance.org, has to allow anyone interested in Internet governance to publish their opinion, or register a domain at the third level under it. Similarly, ownership of a TLD does not obligate anyone to open its registrations to anyone. So if the community application for .GAY succeeds, their plan is to restrict registrations in that domain to LGBT-friendly entities. That is their chosen model, and that is their right.
The DNS space is vast. For any given string, there are always substitutes. Giving someone .CLOUD does not give anyone a monopoly over cloud services, clouds in the air, use of the word cloud in other contexts, cloud-like brands, cloud images, or…cloudy thinking. The idea that closed-name space business models create a monopoly on anything is just wrong. The claim that any generic term must be “open” actually means something very inimical to free expression: it means that ICANN would have to dictate the business models and procedures of whoever registered a given character string. It would also mean that ICANN would have to dictate what was a generic word and what was not, because it is not always obvious. Do we want that?
Claims about how “powerful” generic terms are in the domain name space are anachronistic artifacts of the .COM boom 15 years ago, when nearly 90% of the world’s domains were registered under .COM. For a brief period, you could type whatever you wanted under .COM and assume you would find something relevant. The proliferation of TLDs will end that era for good. Valuable domains will be created not by the word or string itself, but mainly by the investment and innovation that go into its operation and marketing.
It is no accident that the main supporters of the so-called “open” model for generic terms are registrars. Their business model is based on registering large quantities of low-margin second-level names. That’s a fine business model that suits many consumer needs. But it should not be the only business model. End users are not necessarily better off if the entity that wins .MUSIC allows open registration. They may be better off if it creates a controlled name space in which the second-level reserved for specific artists, or restricted to internal users, or some other business model. Either way might please users, either way might not work out. Let the market decide. That was the real purpose of the new gTLD program.
This was in fact the policy ICANN adopted in 2005-6; the GNSO opted for an applicant-driven process; it rejected taxonomies and top-down structured name spaces and opted for a criteria-driven, predictable process of approvals. It is not true that no one imagined there would be applications for generic terms at the top level, with controlled name spaces. The policy did not ban such domains, and so they are not banned. We should not be asking ICANN to retroactively change its policy. Indeed, one of the key principles of the new TLD policy was that the rules would be predictable and give applicants a good idea in advance what was allowed and what wasn’t. (Of course the GAC objections and early warnings constitute a huge deviation from that rule, but that is another story.) There was no stipulation that generic terms cannot be applied for. We fought and successfully eliminated the application of a “public interest” (i.e., second-guessing) standard by the IANA, when the NTIA tried to put it in there.
There is no evidence for the claim that market dominance inherently flows from the control of a generic domain name by an applicant who sells products or services that can be described by a generic name. Yes, .BOOK is a nicer place to put an online bookstore than .REFRIGERATOR. But it does not convey market power, and so there is no market competition argument for restricting .BOOK to Amazon or opening it up to other registrars. Indeed, refusing to allow it may artificially advantage businesses whose model hinges on making lots of individual registrations for money, and undermine a more competitive, well-organized lower-priced market for books. It may also turn out to be economically irrelevant, if the market for traditional books contracts and becomes organized around tablet platforms and the person who registers .TABLET or .APP gets farther. You just don’t know…
Competition issues in specific industries, should they arise, should be handled by actual economic regulators with the authority and expertise to do so. ICANN can be properly concerned with the market for domain name registrations, but it is illegitimate for it to try to decide what creates or undermines market power in any other market as a basis for assigning names. If we let ICANN do that we are, in effect, asking ICANN to be a regulator of the book market as well as the domain name market, which it lacks both the expertise and the mandate to do. Indeed, we would be making ICANN the regulator of any market that might be named in a domain. Bad idea.