Excellent ! -Jorge On May 10, 2013, at 12:14 PM, Robin Gross <[log in to unmask]> wrote: > 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 > --------- end -------- > > > > > >