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.
I disagree with you Milton. Once upon a time, half a century ago or so, Walt Disney was just using the names and titles of all OUR tales, OUR old books, OUR child songs and stories, initially for our joy. After a while it became forbiden to publish OUR tales, OUR old books, OUR child songs and stories. BOOK is too precious to be given away for business. Amazon may buy amazon.book, but I will be allowed to make my choice too in a shared space.
Hi, Elisabeth
If I understand your argument, you are claiming that if Amazon is allowed to register the .BOOK TLD, it will gain control over the market for all books, just as you allege that Disney has achieved such control over common folks tales such as Snow White. Though I understand and oppose the attempt to create exclusivity over cultural themes through aggressive use of copyright and trademark law, I don’t think your claim is even true of Disney, and is pretty outlandish when applied to the word BOOK. There are many alternate versions of the Disneyfied fairy tales, the latest example being “Snow White and the Huntsman.” Only people who spend way too much time in ICANN and the domain name registration industry can believe that control of a top level domain (in one language, by the way) name will somehow lead to control of the entire market for books, and trademark-like exclusivity over the concept.
If this issue was foreseen and publicly discussed, can anyone provide a link?
While in principle I agree that the rules should not be changed late in the game, I am ambivalent about this particular issue.
Wes:
In connection with brand TLDs, it was discussed; it was also discussed in connection with vertical integration policy. It was known that there would be applicants for generic terms such as sex, music, and so on. At no point was there any proposal to require those to be open. However, it would take hours to dig up all the old records of the almost 6-year policy development process.
Here is a document that recounts the gTLD policy making process back to 2005. http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-partb-01aug07.htm#_Toc47680301
But I think the burden of proof here is clearly on those who assert that it would not be allowed by current policy. What part of the Applicant Guidebook specifically does not allow it?
I agree that the policy allows these applications. The question is whether the policy contains an unforeseen loophole that these applications are exploiting. I for one assumed that the new generic gTLDs would be just as open as the old batch of .info/.biz/etc. and didn’t consider the need to encode that into policy.
No Rules Change Required.
The Government Advisory Committee could intervene with advice against these applications. The GAC can provide advice on any grounds they like, and are not limited by the objection standing requirements listed in the guidebook. It would be up to the Board then, to override that advice and provide rationale for doing so.
The GAC may find these applications objectionable as:
Closed Generic Term Registries do not conform to the mission and purpose of ICANN and the New gTLD program to introduce competition into the domain name marketplace. This commitment is also written into the Affirmation of Commitments with the U.S. D.O.C. And;
The GAC can also offer advice if they believe an application is not in the global public interest. We have a consumer watchdog group expressing perceived harms in these applications to the U.S. Senate already.
So you have conceded that there is nothing in the policy that prevents it and seek to have the GAC intervene. This is wrong, fundamentally illegitimate. Appealing to the GAC to resolve a policy issue in your favor by openly asserting a power to arbitrarily veto legitimate applications that conform to the stated policy will prove to be a double-sided sword. Dozens of other interest groups can play that game. It basically moves the actual policy making process away from the ICANN process and into a highly politicized end-game lobbying process directed at the GAC. Shame on you.
Your argument that generic terms “do not conform to the mission and purpose of ICANN” is nothing more than an assertion. Here are the key phrases: ICANN “is a not-for-profit corporation with participants from all over the world dedicated to keeping the Internet secure, stable and interoperable. It promotes competition and develops policy on the Internet’s unique identifiers.” And, “ICANN is dedicated to preserving the operational stability of the Internet; to promoting competition; to achieving broad representation of global Internet communities; and to developing policy appropriate to its mission through bottom-up consensus-based processes.” Nothing in that language pre-judges or even affects the whether managed name space under a generic term is allowed. Your appeal to competition policy shows a lack of understanding of the relevant market. Both a closed and an open approach to a generic term fosters competition in the broader domain name ,market, it is just different kinds of competition. No competition policy expert will support your view.
Actually, the guidebook clearly prohibits operating a closed tld in the Registry Code of Conduct. It is the closed registry applicant that is seeking rules policy exemption in the middle of the game.
“1. In connection with the operation of the registry for the TLD, Registry Operator
will not, and will not allow any parent, subsidiary, Affiliate, subcontractor or
other related entity, to the extent such party is engaged in the provision of
Registry Services with respect to the TLD (each, a “Registry Related Party”), to:
a. directly or indirectly show any preference or provide any special consideration
to any registrar with respect to operational access to registry systems and
related registry services, unless comparable opportunities to qualify for such
preferences or considerations are made available to all registrars on
substantially similar terms and subject to substantially similar conditions;
b. register domain names in its own right, except for names registered through an
ICANN accredited registrar that are reasonably necessary for the management,
operations and purpose of the TLD, provided, that Registry Operator may
reserve names from registration pursuant to Section 2.6 of the Registry
Agreement;”
The rumblings from the registrar community, The Consumer Watchdog, and other sources seek only for ICANN to follow the rules as they are written and offer reasons why exception to the rules should not be granted for generic word tlds.
The GAC need not be intrusive and heavy handed. No intervention required. Simply echo the rising sentiment that generic terms closed registries are potentially problematic and that exception to the policy rules is not in the public interest.
From the Guidebook:
“Registry Operator may request an exemption to this Code of Conduct, and such
exemption may be granted by ICANN in ICANN’s reasonable discretion, if
Registry Operator demonstrates to ICANN’s reasonable satisfaction that . . . (iii) application of this
Code of Conduct to the TLD is not necessary to protect the public interest.”
The debate whether a closed registry potentially violates competition, or freedom of expression or any other law can occur, but the presumption is no exemption until proven otherwise.
The burden of proof lies with the registry applicant
Now, I’m not an attorney, but I can say that brands closing off generic namespaces for their exclusive use certainly sounds like trouble to me, for a lot of reasons. This sentiment is gaining traction in the public sphere even as awareness of New gTLDs is not widespread. The ICANN Global Awareness Program has yet to reach end users and consumers.
It is particularly problematic in cases of contention sets, where open registry applicants exist. Google needs to demonstrate that denying second level .blog names to end users is not contrary to public interest. L’oreal needs to demonstrate that closing .SALON, .BEAUTY, and .HAIR to thousands of Salons, beauty and hair practitioners and businesses is not harmful. Both Amazon and Google need to demonstrate that closing .APP to app developers is not harmful. This could be difficult given a grassroots app developer bid for the .APP registry was started for just this reason It sputtered due to lack of funding – a problem Google and Amazon don’t have.
The rising sentiment is not for ICANN, or the GAC to intervene, change course and alter policy, but simply to follow the developed policy as written without exception in the case of generic words.
It’s up to the closed registry applicant to demonstrate otherwise.
Tom,
Your insight into this issue is most certainly appreciated. The fact that it hasn’t garnered a response in 5 months shines a particular light on Wes’ unraveling argument.
Well said.
Dave