GNSO new TLDs Committee

 

Part B:  Final Report

 

Introduction of New Generic Top-Level Domains

 

Table of Contents

 

PART ONE -- POLICY DEVELOPMENT PROCESS

PART TWO -- PARTICIPATION TABLE

PART THREE – INTERNATIONALISED DOMAIN NAMES WORKING GROUP REPORT (IDN-WG)

PART FOUR – RESERVED NAMES WORKING GROUP FINAL REPORT

PART FIVE – PROTECTING THE RIGHTS OF OTHERS WORKING GROUP FINAL REPORT

PART SIX  – GOVERNMENTAL ADVISORY COMMITTEE PUBLIC POLICY PRINCIPLES

PART SEVEN – CONSTITUENCY IMPACT STATEMENTS

PART EIGHT -- REFERENCE MATERIALS

Return to Final Report: Part A

 

 

PART ONE -- POLICY DEVELOPMENT PROCESS

 

1.      This section provides detailed information about the progress of the policy development process and the documentation produced throughout the series of teleconferences and face-to-face consultations that have taken place since December 2005, through 2006 and 2007.  All of the meetings were open to observers and many different stakeholders attended the meetings taking an active part in the discussion.  In addition, all meetings were open to remote participation by teleconference and file-sharing technology for some meetings.  Participation data is provided in Part Two below.

 

2.      The first step of the policy development process was the release of the  Issues Report on 5 December 2005.  The Report sets out an early collation of issues that the GNSO wished to take into account in developing the Terms of Reference for future rounds.  For example, the selection criteria used in previous application rounds for new top-level domains were used to guide the development of Term of Reference Two in this PDP.  An evaluation of the selection criteria and methods used in the re-bidding of the .org and .net registry contracts was also conducted.  The Issues Report contained Staff Recommendations about potential terms of reference and, in the main, those Recommendations were adopted by the GNSO Council.  The Report is found at http://gnso.icann.org/issues/new-gtlds/gnso-issues-rpt-gtlds-05dec05.pdf.

 

3.      A Public Comment Period was launched on 6 December 2005 to solicit input from the ICANN community about the proposed Terms of Reference (found at http://www.icann.org/announcements/announcement-06dec05.htm).  The Public Comment Period ran until 31 January 2006.  For this PDP public comment periods have been used in different ways than in the past.  In general, public comment calls have been far more targeted and highly structured to get responses on particular areas of concern to the Committee.  This was a successful initiative enabling information to be collected in a consistent way that improved the quality of subsequent Reports.  The archive of comments can be found at http://forum.icann.org/lists/new-gtlds-pdp-comments/). 

 

4.      In addition to a Public Comment Period, a Call for Expert Papers was announced on 3 January 2006 (found at http://icann.org/announcements/announcement-03jan06.htm).  The request for input was advertised widely in the international press and yielded eleven responses from a diverse range of stakeholders.  The authors of the papers were invited to present their papers and participate in a question and answer session at the 23 - 25 February 2006 Washington meeting.  A full listing of all the inputs, including the Expert Papers, can be found at http://gnso.icann.org/issues/new-gtlds/new-gtld-pdp-input.htm.

 

5.      The ICANN Board has been regularly updated on the progress of and taken a keen interest in the work of the new TLDs Committee.  For example, the Board meeting of 10 January 2006 shows discussion within the Board about its involvement in new TLDs policy development process (found at http://www.icann.org/minutes/minutes-10jan06.htm).  The Board passed a resolution at the March 2006 Wellington meeting urging the Committee to work as quickly and efficiently as possible.

 

6.      A draft Initial Report was released on 19 February 2006 (found at http://icann.org/topics/gnso-initial-rpt-new-gtlds-19feb06.pdf) and a request for public comments was announced at the same time that was open between 20 February 2006 and 13 March 2006.  The archives for those comments are found at http://forum.icann.org/lists/new-gtlds-pdp-initial-report/.  The draft Initial Report was used to facilitate discussion at subsequent Committee meetings and to give some guide to the broader community about the Committee's progress in its early stages.

 

7.      The GNSO's new TLDs Committee held a three day meeting in Washington DC between 23 and 25 February 2006.  The meeting notes can be found on the GNSO's Committee archive at (http://forum.icann.org/lists/gtld-council/msg00030.html).  A central element of the discussion focused on re-visiting ICANN's Mission and Core Values to ensure that the deliberations on the Terms of Reference were tightly constrained.  The substantive discussion over the three-day meeting also included discussion on whether to introduce new top-level domains (http://forum.icann.org/lists/gtld-council/msg00027.html) and potential selection criteria which could be used in a new round of top-level domain applications (http://forum.icann.org/lists/gtld-council/msg00026.html). 

 

8.      Analysis of the lessons learned from previous TLD rounds was included in the broader discussions held in Washington DC (http://forum.icann.org/lists/gtld-council/msg00030.html).  In addition to discussing general selection criteria, detailed discussion of technical requirements also took place (http://forum.icann.org/lists/gtld-council/msg00028.html).   Following the Washington meetings, it was clear that further information about technical criteria was necessary to inform the Committee's work.  On 15 March 2006 a formal call was made for additional information on technical criteria (found at http://gnso.icann.org/issues/new-gtlds/tech-criteria-15mar06.htm).  No responses were received to that specific call but, in the resulting recommendations, particular attention has been paid to addressing relevant technical standards across the full range of registry operations, including those that relate to Internationalised Domain Names.

 

9.      In response to the Committee's work and to discussions at the March 2006 Wellington meeting, the Board indicated its intention to facilitate the implementation of new top-level domains (found at http://www.icann.org/minutes/minutes-31mar06.htm.)

 

10. The new TLDs Committee met in Brussels between 11 and 13 May 2006 to discuss, in further detail, the work that had been undertaken on refining the selection criteria and allocation methods.  In addition, a full day was spent on discussing policies for contractual conditions with a special presentation from ICANN's Deputy General Counsel.  The Committee has archived, on 18 May 2006, records of the Brussels discussion and output from the meeting can be found at http://forum.icann.org/lists/gtld-council/msg00133.html

 

11. At the Brussels meeting, a revised work plan was devised (found at http://forum.icann.org/lists/gtld-council/msg00130.html) which include a high level commitment to producing an Initial Report in time for discussion at ICANN's June 2006 Marrakech meeting.

 

12. A draft Initial Report was released on 15 June 2006 (found at http://gnso.icann.org/issues/new-gtlds/issues-report-15jun06.pdf) and further discussion took place on the Committee's mailing list prior to the Marrakech meeting.

 

13. The ICANN Board meeting of 30 June 2006 showed, again, the Board's interest in facilitating the policy development process on new top-level domains, particularly in encouraging ongoing discussions with the GAC.  (found at http://www.icann.org/minutes/resolutions-30jun06.htm).  After inputs from the Marrakech meeting a final version of the Initial Report was released on 28 July 2006 (found at http://gnso.icann.org/drafts/newgtlds-issues-report-01-28jul06.htm). 

 

14. The Committee conducted another set of face-to-face consultations in Amsterdam between 29 and 31 August 2006 to further refine the Committee's findings and to develop a set of draft Recommendations.  Prior to the Amsterdam meeting, a comprehensive public comment period was conducted.  These public comments (found at http://forum.icann.org/lists/gtld-council/msg00189.html) were used as working materials for the Committee to consider, in addition to Constituency Statements, the previous set of Expert Papers and comprehensive commentary for a wide variety of observers to the meetings.

 

15. The Committee met with the GAC on four occasions during the course of the consultations – in Wellington, Marrakech, Sao Paolo and San Juan – where progress on the Committee's work was shared with GAC members.  In addition, at the San Juan meeting, GAC members were given a presentation about how the GAC's Public Policy Principles had been incorporated directly into the Committee's principles, recommendations and implementation guidelines.

 

16. Considering all the materials derived from the face-to-face meetings, discussions on email lists, expert materials and expert papers, on 14 September 2006 a set of draft Recommendations was released by the Committee for broader consideration (found at http://gnso.icann.org/issues/new-gtlds/recom-summary-14sep06.htm). 

17. Between 14 September and 5 October 2006 email discussion took place that improved and clarified the language of the Recommendations and ensured that Constituencies had sufficient time to rework their recommendations where necessary.

18. On 5 October 2006, the Committee conducted a two-hour teleconference to discuss the draft Recommendations (the MP3 recording can be found at http://forum.icann.org/lists/gtld-council/msg00224.html)/.  The purpose of the meeting was to confirm that the Recommendations reflected the intentions of the Committee and to conduct further work on refining elements of the Recommendations, particularly with respect to the selection criteria and allocation methods to resolve contention between string applications.

 

19. On 11 October 2006, the GNSO Committee Chairman and GNSO Chair, Dr Bruce Tonkin, sent formal correspondence to the Chair of the Governmental Advisory Committee and the Chair of GAC Working Group I, requesting the GAC's assistance with the public policy impacts of the introduction of new TLDs (found at http://gnso.icann.org/mailing-lists/archives/council/msg02891.html).

20. Based on the substantive nature of the Committee's email traffic on the draft Recommendations, a further update was released to the Committee on 18 October 2006 (found at http://forum.icann.org/lists/gtld-council/msg00234.html) for consideration whilst the drafting of the Final Report takes place.

21.  The Committee met again at ICANN's Sao Paulo meeting in December 2006 and continued their work with the release of an updated version of the Final Report (found at http://gnso.icann.org/drafts/GNSO-PDP-Dec05-FR13-FEB07.htm).

22. From February 2007 until May 2007 a series of working groups continued with separate streams of work. The Internationalised Domain Names Working Group (IDN-WG) released its Final Report  on 22 March 2007 (found online here http://gnso.icann.org/drafts/idn-wg-fr-22mar07.htm).  The Reserved Names Working Group (RN-WG) released its first report on 16 March 2007 (found online here http://gnso.icann.org/drafts/rn-wg-fr19mar07.pdf ) and its Final Report on 23 May 2007 (found online here http://gnso.icann.org/issues/new-gtlds/final-report-rn-wg-23may07.htm).  The Protecting the Rights of Others Working Group (PRO-WG) completed its Final Report on 1 June 2007 (found online here http://gnso.icann.org/drafts/GNSO-PRO-WG-final-01Jun07.pdf).

23. After the June 2007 San Juan meeting, the Committee continued to meet on a weekly basis with small sub-groups working on, in particular, Recommendation 6 and 20 and more detailed implementation guideline

24. The updated version of the draft Final Report:  Part A was released on 30 July for a Committee "last call" on the package of recommendations.

25. The following timetable was released in conjunction with the updated draft to enable the completion of the Committee's work prior to the ICANN Board meeting on 2 November 2007.

                                                              i.      Committee comment 30 July to 6 August

                                                            ii.      Committee meeting 6 August

                                                          iii.      Public comment period begins 9 August

                                                           iv.      Public comment period ends 29 August

                                                             v.      Synopsis of public comments released to Committee for consideration

                                                           vi.      GNSO Council vote on recommendations

26. After the GNSO Council's vote, the Board Report can be prepared.

PROPOSED RECOMMENDATIONS

 

IMPLEMENTATION GUIDELINES

 

 

 

ISPCP Constituency Statement on Impacts – New TLDs Page 1

 

Internet Service Provider and Connectivity Provider Constituency

 

Statement on Impacts – Introductions of New Top Level Domains

Overview

This is the ISPCP's statement on Impacts relating to the GNSO PDP Dec 05 – Introduction of New Top Level Domains – Consolidated Recommendations.

Section 1 – Principles

The ISPCP is highly supportive of the principles defined in this section of the PDP, especially with regards to the statement in (A):

"New generic top-level domains (gTLDs) must be introduced in an orderly, timely and predictable way."

Network operators and ISPs must ensure their customers do not encounter problems in addressing their e-mails, and in their web searching and access activities, since this can cause customer dissatisfaction and overload help-desk complaints. Hence this principle is a vital component of any addition sequence to the gTLD namespace.

The various criteria as defined in D,E and F, are also of great importance in contributing to minimize the risk of moving forward with any new gTLDs, and our constituency urges ICANN to ensure they are scrupulously observed during the applications evaluation process.

Section 2 – Proposed Recommendations

Here the ISPCP would like to make the following observations:

With regards to recommendation 2:

"Strings must not be confusingly similar to an existing top-level domain."

This is especially important in the avoidance of any negative impact on network activities.

The same applies to recommendation 4:

"Strings must not cause any technical instability."

The ISPCP considers recommendations 7 and 8 to be fundamental. The technical, financial, organizational and operational capability of the applicant are the evaluators' instruments for preventing potential negative impact of a new string on the activities of our sector (and indeed of many other sectors). ISPCP Constituency Statement on Impacts – New TLDs Page 2

With regards to recommendation 13:

"Applications must initially be assessed in rounds until the scale of demand is clear."

This is an essential element in the deployment of new gTLDs, as it enables any technical difficulties to be quickly identified and sorted out, working with reduced numbers of new strings at a time, rather than many all at once. Recommendation 18 on the use of IDNs is also important in preventing any negative impact on network operators and ISPs.

Section 3 – Implementations Guidelines

We consider that guideline B, which states:

"Application fees may differ for applicants." ,

has some potential for negative impact on our sector. Our recollection is that this caveat was proposed with a view to reducing the application fee for certain categories of applicants, as a mechanism for avoiding exclusion based on application cost. Recent discussions in the GNSO have exposed some opinions that question the 'fairness' of the application fee (as it has been applied heretofore), on the grounds that it constitutes an entry barrier and disenfranchises legitimate potential applicants. The risk in proceeding with such a policy, is that it paves the way for hasty, last minute me-too applications, that have not really developed a solid project, and are simply trying their luck in getting a string...Perhaps when such arguments on exclusion are expounded, then the '.cat' sTLD can be pointed at as a prime example of a well-planned 'grass-roots' community TLD, which successfully applied for a string without any 'special' cost considerations. A potential profusion of hasty, ill-conceived new gTLDs is not something the ISPCP would view as beneficial to our sector.

Section 4 – IDN Working Group Areas of Agreement

The ISP community believes that areas of agreement 5, 6, and 9 are essential to the careful implementation of IDN TLDs. Without careful adherence to these recommendations, the implementation of IDNs may be successful on a technical level but will result in support and user confusion problems amongst the customers of ISPs. The ISPCP believes that these "Areas of Agreement" are essential to implement prior to any pursuit or proposal for IDN TLDs.

The ISP community also believes that the third "Area of Agreement" will be particularly difficult to implement in practice. The ISP community would be significantly impacted if the mechanism for gathering language community input on new IDN gTLD strings included a process that reached out to general, public Internet users through the community that provides access and connectivity. The ISPCP believes that a process for "Language Community Input for Evaluation of new IDN gTLD Strings" must be clearly established and vetted prior to allowing introduction of new IDN gTLD string. Failure to do so will impact many sectors, including the ISP and connectivity community. ISPCP Constituency Statement on Impacts – New TLDs Page 3

Section 5 – Reserved Name Working Group Recommendations

The ISP community accepts and agrees with the ICANN and IANA recommendations of Section 5 and finds no negative impact on ISP operations or support. The ISPCP is also support of, and finds no negative impacts for, the recommendation on symbols in new gTLDs.

The ISPCP community notes that recommendation 6 – reservation of single letters at the top level – is an important and critical recommendation to the ISP community. We believe that there are old resolvers in operation in developing countries that would be severely impacted (e.g. not work correctly) in the presence of single letters at the top level. Specifically we believe that very old versions of BIND – potentially in use in very small, underfunded ISPs in economically challenged areas – may not process incoming resolution requests properly. The ISP community strongly supports recommendation 6 and believes that further research, at a later date, would be necessary before all impacts on ISPs and connectivity providers could be identified.

The ISPCP notes that an unavoidable impact of these recommendations is problems resulting from poorly written application layer software. The ISP community was severely impacted during the introduction of TLDs that had more than 3 ASCII characters. Many pieces of software incorrectly filtered these TLDs – most likely because software designers thought that there could not be TLDs whose length was greater than three characters. During the first 18 months of introduction of those TLDs there were many calls to ISPs to "fix" the problem with the new TLDs – despite the fact that the ISP and connectivity community were not responsible for issues at the application layer. We fully expect that some software and application designers have also made assumptions about TLDs that will be contradicted by the new recommendations in section 5. The unavoidable impact on ISPs and connectivity providers will mirror the problems that occurred during the introduction of TLDs such as .areo, .travel, or .coop. The ISP community suggests that the existence of so-called "Controversial Names" will also lead to potential regulatory or community pressure impacts on those who provide connectivity.

Section 6 – PRO Areas of Agreement

The ISPCP believes that the six "Areas of Agreement" in the area related to PRO will have no significant impact on ISPs or connectivity providers.

Section 7 – Areas of Broad Agreement

The ISPCP sees the Principles and Recommendations in this section, as reasonable safeguards to a measured and controlled expansion of the generic domain namespace, subject to the comments expressed above.

 

COMMENTS FROM ICANN'S NON-COMMERCIAL USERS CONSTITUENCY (NCUC)

The GNSO New TLD Committee's Draft Final Report On The Introduction Of New Generic Top Level Domains

GNSO Policy Development Process (GNSO PDP- Dec05)

12 June 2007

Overview

ICANN's Non-Commercial Users' Constituency (NCUC) appreciates this opportunity to comment on the GNSO Draft Recommendations for New GTLD Policy. While much progress has been made in recent weeks to resolve differences, much work remains before a consensus policy can be reached. The NCUC refers to its earlier constituency statements on the introduction of new gtlds, in particular, its statement of December 2006.^[1]

Our overall concern remains that despite platitudes to certain, transparent and predictable criteria—the GNSO's draft recommendations create arbitrary vetoes and excessive challenges to applications. There are some for incumbents; for trademark rights holders; for the easily offended, for repressive governments and worst of all, for "the public". It's a wolf in sheep's clothing. A recipe for irregularity, discretion and uncertainty in the new domain name space.^[2]

Among the more troubling proposals is the introduction of criteria in which strings must be 'morally' acceptable and not contrary to 'public order' (Recommendation #6). A concept borrowed from trademark law without precedent in the regulation of non-commercial speech.^[3] NCUC opposes any string criteria related to 'morality' or 'public order' as beyond ICANN's technical mandate.

Following recent discussions and revisions, the draft now refers^[4], in passing, to 'freedom of speech' rights, but concerns remain that a restriction on certain expression in part of the world will be extended outside that nation, possibly even to the entire world, through ICANN policy. If the GNSO disagrees with NCUC and ultimately include string criteria on morality and public order in its final report, then the recommendations should make clear that ICANN policy on this matter will not be more restrictive than the national law in which an applicant operates.

NCUC remains particularly troubled with Recommendation #20 that would allow the showing of a "substantial opposition" to entirely reject an application. It swallows up any attempt to limit string criteria to technical, operational, and financial evaluations. Recommendation #20 violates internationally recognized freedom of expression guarantees and insures that no controversial string application will ever be granted.

NCUC continues to reject Recommendation 11 and an expanded role of ICANN staff and outside expert panels to evaluate string criteria that is not technical, financial, nor operational.

Recommendation 1.

This is a laudable Recommendation and we support it. We support the broad introduction of many new gTLDs.^[5] We welcome the recognition that there are no technical constraints to introducing new gtlds and we hope to see consumer choice and demand served by a more robust approach in the future. ICANN's role is not to second guess the market place and decide which ideas are likely to succeed, but rather, to facilitate the process for the consumer's decision.

We refer to our concerns above as to the relationship between transparent, predictable criteria and vetoes over applications from unlimited sources.^[6] By the many grounds for challenge introduced, criteria will be created and applied ex post facto by those responsible for determining challenges. We are also concerned that "normally" in this context be defined more precisely. These issues must be addressed if the objectives of this Recommendation are to be achieved. In particular, a public opposition period is in direct contraction with Recommendation 1 and Implementation Principle A: "New generic top-level domains (gTLDs) must be introduced in an orderly, timely and predictable way."

Recommendation 2

It is beyond dispute that the DNS does not mirror trade mark regulation. Rather it grants plenary rights in words,^[7] without any of the compromises in the requirements for recognition, the limits to infringement and the defenses.^[8] This is best reflected in the serious issue in the DNS, whereby— all rights-holders now seek protection from dilutive use –when only truly famous marks are entitled to that protection in trade mark law.

The Recommendation is vague and thus a general veto for incumbents at the top level. We refer to Professor Christine Haight Farley's legal briefing paper (Attachment A) as to the meaning of confusingly similar. ^[9] We also refer to Professor Jacqueline Lipton's legal briefing paper (Attachment B) and its discussion regarding the limitations within trademark law on the rights of trademark holders to regulate speech.

The GNSO's draft recommendations cherry pick from trade mark law to create a pastiche of 'values' –divorced from context and structure.^[10] No account is taken of the legal requirement of use in commerce^[11] –yet trade mark law requires this. What about fair use, comment, nominative use, criticism, parody and tribute? All protected at law. Under the US Anti-Cybersquatting Consumer Protection Act (ACPA) for example, unless inherently distinctive (i.e. made up words), marks comprised of descriptive (ordinary dictionary) words must acquire secondary meanings in order to become distinctive, otherwise famousness must be made out.^[12] Even then there is the safe harbor for fair and lawful use of another's trademark in a domain name.^[13] These balancing requirements are not reflected in the Recommendation—although lip service is paid to them.^[14] Defined criteria are absent and the promised balance and protection –a blank page open to numerous interpretations.

This Recommendation fails to adequately accommodate non-commercial speech and fair use of trademarks. Presumably what this all really means is that no "sucks" gTLDs (cyber-gripes) will ever be granted, nor indeed notdotcom, or anything that refers to or discusses an association with an existing trademark. Real competition often requires overlapping services that offer consumers choice.[15]

Recommendation 3.

This ground for challenge is for rights holders. The language is vague and overbroad— "existing legal rights of others."^[16]