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From: NCSG-Discuss [mailto:[log in to unmask]] On Behalf Of Robin Gross
Sent: Friday, May 10, 2013 1:15 PM
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Subject: [NCSG-Discuss] Prof. Jacqueline Lipton comments to ICANN on GAC Beijing Communique

Noted law professor Jacqueline Lipton submitted clear, powerful comments to ICANN regarding the GAC's advice:

http://forum.icann.org/lists/comments-gac-safeguard-advice-23apr13/msg00010.html
Comments to ICANN: GAC Beijing Communique

  *   To: "comments-gac-safeguard-advice-23apr13@xxxxxxxxx" <comments-gac-safeguard-advice-23apr13@xxxxxxxxx>
  *   Subject: Comments to ICANN: GAC Beijing Communique
  *   From: "Lipton, Jacqueline D" <jdlipton@xxxxxxxxxxxxxx>
  *   Date: Tue, 7 May 2013 15:04:43 -0500

________________________________

May 7, 2013



Comments on GAC Beijing Communiqué Issued on April 11, 2013



I write in response to ICANN's call for public comments on the GAC's Beijing

Communiqué issued on April 11, 2013 (Beijing Communiqué) with specific

reference to Section IV and Annexes I and II.



In particular, the GAC has advised the Board:



a.      Not to proceed beyond Initial Evaluation with certain strings including

.amazon, .patagonia, .date, .spa, .wine, .vin, and .yun (clause IV.1.c.i);

b.      To implement new general Safeguards for all gTLDs (Annex I);

c.      To implement new specific Safeguards for particular categories of gTLDs

identified by the GAC (Annex I);

d.      To implement restricted registration policies for certain categories of

gTLDs (Annex I); and,

e.      To implement a "public interest goal" requirement with respect to

exclusive registry access for generic terms (Annex I).



I am a professor of law whose expertise resides in the field of law and digital

technology, with particular focus on trademarks, free speech, and Internet

governance.  I am the author of "Internet Domain Names, Trademarks, and Free

Speech" (Edward Elgar, 2010) as well as more than forty law review articles

dealing with Internet domain name disputes and Internet governance more

generally.  I also co-author the leading American Internet law casebook,

"Cyberspace Law:  Cases and Materials" (2 ed, 2005, and 3 ed, 2010) (with R.

Ku).  I hold Ph.D.s from both Cambridge University and Griffith University,

both in the fields of regulating digital technology.  My teaching is focused in

the areas of International Intellectual Property, International Business

Transactions, Trademark and Unfair Competition, and Internet Law.



In my view, ICANN should not adopt any of the recommendations raised in the

Beijing Communiqué.  These recommendations have been made too late in a process

that is already underway, and under which large sums of money have been

invested by applicants in reliance on previously released ICANN guidelines.

Additionally, many applicants have made plans for innovative business models in

new domain spaces that would be severely restricted, if not effectively

prohibited, if the GAC's proposals were implemented.



Rules for granting and managing new gTLDs should not be changed at this point

in the system's development.  The current procedures already contain safeguards

with respect to the issues raised in the Beijing Communiqué.  For example,

governments - and others - are entitled to object to the grant of applications

for particular gTLDs on previously articulated grounds.  Under the Beijing

Communiqué, the GAC seeks to add an additional and unnecessary layer of rules

that serves no clear purpose over and above safeguards currently in place, and

that may chill online innovation.  Many of the GAC's suggestions are also

framed in terms that are too vague to be implemented in practice in a

consistent and meaningful way, despite apparently laudable policy goals.  I

have detailed some specific concerns below.



1.      In the Beijing Communiqué, the GAC tends to rely on broad, undefined

terms as criteria to impose restrictive conditions on applications for, or

administration of, new gTLDs.  An obvious example is the reference in Annex I

to implementing new gTLDs "in a manner that is fully respectful of human rights

and fundamental freedoms".  While this is clearly a laudable aspirational goal,

any international human rights lawyer or advocate can attest to the difficulty

of defining such terms in a harmonized manner at the global level.  Even the

most basic of human rights - such as free speech - connotes different things in

different jurisdictions.  For example, while the United States has a powerful

First Amendment jurisprudence, Australia has no express constitutional

guarantee of free speech.  There is no way to enshrine a meaningful concept of

human rights or fundamental freedoms in a uniform and workable set of rules for

domain names.



Another example of a tendency to rely on vague and undefined language in the

Beijing Communiqué arises with respect to the notion that registries be

required to operate "in an open manner consistent with general principles of

openness and non-discrimination".  Again, these are laudable aspirational goals

that are impossible to reduce to concrete and workable rules in practice.  They

should not be imposed on the new domain name system at this point in its

development, at least not in the terms suggested in the Beijing Communiqué.

Their application would be fraught with too much practical difficulty and would

tend to have a chilling effect on online innovation.



2.      The GAC suggests in the Beijing Communiqué that exclusive registry

access for generic terms should serve a public interest goal.  As noted in my

comments on the "closed generic" issue in March of this year, "generic" is not

a term that can be meaningfully defined in the context of Internet domain

names.  Genericness always relies on context.  A term that is generic in one

context may well be proprietary in another.  It is impossible to distill a

general rule to apply to all new gTLD registries to identify terms that should,

as a general rule, be subject to a "public interest goal" requirement.  For

example, depending on the context, "Delta" is a proprietary trademark (for

airlines, hardware fixtures etc.) as well as a mathematical symbol, a Greek

letter, and a word in the English language.



Even if it were possible to create a meaningful definition of "generic" in the

context of gTLDs, it would be equally problematic to define the concept of a

"public interest goal".  Many of the difficulties in creating such a definition

have already been identified in Annex II of the Beijing Communiqué itself.



3.      The Beijing Communiqué also fails to provide a clear rubric for the

treatment of specific strings it has identified as requiring further

consideration in Clause IV.1.c.i.  The GAC has suggested that applications for

a series of strings including several valuable trademarked terms (such as

.amazon, .spa, and .patagonia) should not proceed past Initial Evaluation.

Several business entities have expended significant resources in developing

these brands and applying for the corresponding gTLDs in good faith under

existing guidelines.  It would be unfair to effectively veto their efforts at

this stage when no specific harm has been articulated by the GAC with respect

to the possibility of granting the applications.  While the Beijing Communiqué

may reflect genuine concerns about conflicts between a trademark and another

interest in a new gTLD space, there are procedures in place - including under

national laws - to deal with such challenges.  There is no justification for

removing applications for these gTLDs from consideration at this point in

ICANN's process.



4.      In Annex I of the Beijing Communiqué , the GAC seeks to impose heavy

administrative obligations and attendant costs on registries of new gTLDs in

terms of its proposed Safeguards.  These include monitoring and documentation

requirements that have not been imposed on domain name registries in existing

domain spaces.  The imposition of such obligations at this point in the

development of the new system would likely go a long way toward chilling

innovation online by imposing significant financial and administrative burdens

on those who would otherwise provide commercially valuable spaces for

innovation.



5.      Annex I of the Beijing Communiqué requires registry operators and

registrars to "respect all substantive and procedural laws under the applicable

jurisdictions".  It is not immediately clear that this needs to be implemented

as a particular new safeguard within the system, or indeed that it can be

implemented by ICANN meaningfully in any event.  It goes without saying that

registry operators and registrars are subject to national laws, as well as to

provisions set out in the new gTLD Registry Agreement requiring compliance with

national laws.  As with existing gTLD spaces, domestic courts and legislatures

will govern acceptable online conduct in new gTLD spaces in terms of compliance

with national law.  There is no need for any new preemptive regulation by

ICANN.



6.      In Annex I, the GAC attempts to create a list of strings linked to

regulated or professional sectors that merit special consideration, along with

the imposition of additional administrative safeguards and associated burdens

on relevant registries. The Beijing Communiqué further states that this list of

strings is "non-exhaustive" which seems a little problematic in potentially

creating uncertainty in practice.  Under this approach, the GAC appears to be

attempting to create a general veto power or at least exercise an unjustifiable

level of control over any new gTLD application without having to go through the

already established process for objecting to specific gTLD applications.  At

best, this approach seems like an attempt to pre-emptively regulate something

that doesn't clearly need regulation outside the procedures already in place.

At worst, this approach will have a significant chilling effect on innovation

in new gTLD spaces and will lead to wasted resources.  If the risks associated

with applying for, or managing, new gTLD registries that may be regarded as

falling within the categories identified by the GAC become too high, potential

registrants may be deterred from developing strategies for online innovation in

those spaces.  As a result, gTLDs that may otherwise have been applied for and

utilized for socially or commercially useful purposes will simply become wasted

resources.



In sum, the new gTLD spaces should be allowed to develop as the existing gTLD

spaces have grown, subject to national laws, and free from the implementation

of ex ante rules developed in a context of uncertainty about how registries,

registrars, and consumers will use the new system in practice.  In other words,

the concerns raised in the Beijing Communiqué seem almost like a solution in

search of a problem.  The gTLD expansion should be given the opportunity to

develop organically so that new registries can innovate subject to the

constraints of national laws and the objection procedures set out in existing

ICANN guidelines.



Again, I would urge ICANN to maintain consistency with its stated procedures

for applications for new gTLDs and not to impose a complicated and unnecessary

new system for imposing additional safeguards the need for which has not been

clearly articulated by the GAC.  There has been adequate time during the

development of the system to consider the issues raised in the Beijing

Communiqué.  Procedures have already been implemented to deal with those

concerns, notably the ability of governments and others to object to specific

gTLD applications.  It would be inappropriate now to change the rules.  While

the GAC's motives are laudable, the execution of the suggestions made in the

Beijing Communiqué would be unworkable and is unnecessary at this point in the

development of the system.



Thank you for the opportunity to comment on this issue.  If you have any

queries in relation to the above, my contact details are below.

Sincerely,



Jacqueline D. Lipton, Ph.D.

Baker Botts Professor of Law

Co-Director, Institute for Intellectual Property and Information Law

University of Houston Law Center
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