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Top Three Reasons to Just Say No to ICANN’s Current EOI gTLD Proposal

On December 9, 2009, the ICANN Board announced its intention to vote during its upcoming February 4, 2010 meeting to approve a plan by which ICANN would solicit "Expressions of Interest" (EOI) from prospective applicants for new Generic Top Level Domains (gTLDs) such as .BLOG. But given a number of significant governance and public policy concerns raised by the current EOI proposal, the ICANN Board should take no action on it before the next in-person ICANN regional meeting--in Nairobi, March 3-7, 2010.

Following the introduction of the Expression of Interest concept in the closing days of the ICANN Seoul meeting (October 2009), I published a detailed survey of ICANN's precedent in this area, warned ICANN to "Proceed with Caution," and suggested how ICANN could move forward while honoring its obligations under its bylaws and the recently executed Affirmation of Commitments. Unfortunately, ICANN staff seem to have largely ignored this advice, as well as cautionary comments on the initial EOI concept filed by several other parties. Instead, ICANN has largely adopted the EOI proposal put forth by a group of gTLD applicants with narrow self-interest in the matter. To prevent irreparable harm to the organization (as set forth below), the ICANN Board's fiduciary duties require that it avoids any hasty decision on the EOI process currently proposed by ICANN staff.

A full copy of the article is available below or as a PDF document from the PFF website.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant

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Comments

And the top five reasons to say yes By Kieren McCarthy  –  Jan 21, 2010 2:44 pm PDT

And here are the top five reasons why ICANN should say yes (albeit with some modifications).

1. Because it will move a much-delayed process forward
2. Because it enable for far more effective planning on the part of ICANN staff
3. Because it will move debate surrounding risks around new gTLDs from fear-mongering to discussions based on real information
4. Because it enables the organization to start communicating the process to those outside the small ICANN community
5. Because it puts the ball back in the court of those that have been delaying the process through prevarication (one of the biggest parties of which have been trademark lawyers)

Kieren

Fear Mongering By John Berryhill  –  Jan 22, 2010 5:15 pm PDT

Without re-hashing all views on this thing, I do find your point 3 to be the most intriguing.  It may indeed squelch certain types of FUD, but the makers of FUD are endlessly creative.

For example, I admire the drive and enthusiasm of Mr. Roussos (even if I can't recall the spelling of his name) in seeking .music.  If you take a look at the home page for his initiative http://music.us/, consider the list of things under "Who can use .music?" There are listed performers, such as Madonna; professionals, such as Quincy Jones; albums, such as Thriller; companies, such as the RIAA; and so forth, formatted as prospective .music domain names.  Now, I'm assuming he has some sort of authorization from all of these identifiable parties, to use their names in such a way as to suggest they would want to use such domain names.  If not, a list like that can easily be used by a FUD manufacturer to say, "These people even have lists of whom they intent to 'shake down' with their new TLDS!", or could even spur copyright owners to propose yet further rights protection mechanisms if they get the notion that some TLD's would present a substantial vehicle for content misappropriation.

TO BE CLEAR - I am certain that it is not the intention to convey any type of ill intent, because Mr. Roussos is thoroughly well intentioned and above board.  The observations above are intended only as an example of how those in the business of generating alarm and panic function.  The point is that we could easily go from a situation of vague and non-specific FUD, to a much larger catalogue of highly targeted FUD.

Or not.  It will be interesting to see.

I'm a fan of specifics By Kieren McCarthy  –  Jan 22, 2010 6:14 pm PDT

When it comes to getting people to worry about things, I find that vagueness is 1,000 times more effective than specifics.

We're getting some minor storms in LA at the moment. If someone was to say "there's a big storm coming - what are you going to do?" I'd be much more concerned that someone telling me: "Your palm tree will fall over and water is going to seep under your study carpet" - which is exactly what is happening.

The answer to the first concern is a world of hurricane protection, imagining Katrina-like problems, buying up wood, flashlights, flares and possibly a gun for protection.

The answer to the second is a rope, some rubber and a portable heater.

Kieren

.music response By Constantine Roussos  –  Jan 25, 2010 11:12 am PDT

Hey John,

I see your point of view but rest assured the major label/major artists/major orgs in music industry have been contacted. The whole idea of the names was to provide examples of usage and application. Rest assured Nokia.music for example and others have been approached for their .music.

I am currently at Midem in Cannes, France meeting with government agencies/Ministries of Culture discussing many issues about .music. I even had a chat with Paul McGuinness, the manager of U2. We had an interesting conversation about U2.com and how a fan donated it in exchange for music tickets to U2 concerts.

I see Palage's comments about the GAC but in all due respect, it all depends how the new TLDs are launched and lumping all TLDs under one roof is not representative. For .music, domains like French.music or Latvia.music will be handled by the Export offices of those countries or government art councils or the Ministries of Culture. We have already have spoken to many governments about this. The disconnect in ICANN is that the GAC represents mostly the Ministries of Cmmmunication of each country. However in the .music case, the main beneficiaries are the Ministry of Culture. I meeting with the Italian Ministry today was interesting because they suggested .music might be an issue of the Ministry of Communications of Italia even though the Ministry of Culture or Export Office is who is in charge for exporting music.

I understand Palage's new creative approach concerning GAC claiming that ICANN is not doing their job to let the GAC know about the EOI process or putting in public comments. I am sure GAC knows about it because the whole EOI idea was proposed to the board in Korea and GAC representatives were there. I am sure de la Chapelle knows about the EOI as well. He is certainly worried about some issues as well that need further clarification such as the multiple-stakeholder community that I put forth in the presentation I gave at ICANN Studienkreis, in Barcelona a few days ago.

I respect the process and even though I do not think the EOI is perfect, it is very useful in solving some issues like Kieren said.

Many trademark attorneys are not doing their job right. They should act in what is best for their companies and not how to elongate the process and claim that their companies will have to make defensive registrations, when they are paid hundreds of dollars per hour for how many years now?

eg. I have been talking to Sun Microsystems at Digital Hollywood event last year and the SF Music tech Summit about putting together solutions for music.us and .music. They were excited about .music and we discussed pricing and put something together i.e a deal. next thing you know Sun attorney is bashing new TLDs while the sales and marketing want to get paid by me for offering their services. How is this possible? The attorney cost them few hundred thousand dollars.

No economic demand for .music or new TLDs right? Wake up and come to these music conferences and ask around. Theyre excited and want them now. We do have a top 10 most popular myspace account with 1.5 million friends. Yes, we broke the record on the petition with 1.3 million signatures.

I ask Palage to figure out the solution instead of asking questions and copying and pasting the Affirmation of Commitments. Palage is losing his credibility but i give him some champagne for helping to delay the process thus far. I am still waiting for Heinz to respond to me with my questions.

We need to get this right, but abusing the process is unacceptable. Mr. Palage please write the solution down and present it to ICANN. Feel free to ask me about our business plan and how we aim to help the big guys and the little guys in the music industry. Business and non-commercial groups. It is not just domains. That is not the only value proposition we have.

We will be sponsoring Social Media Week which will be presented in NY, San Francisco, London, Berlin, Sao Paulo and Toronto and will be running the music panel. Seems that we are quite the insiders right? Hiding everything from the public and keeping them in the dark? No outreach efforts right? You can not blame ICANN for everything. Be happy that real progress is made which I am happy about in regards to trademarks and we as .music are working diligently about alerting the music community and stakeholders and getting them involved in a multiple stakeholder environment.

I see John's points and theyre valid. Also, I think the Board of ICANN must have the responsibility in the end to figure out who is a legitimate candidate or not to prevent behavior that is not in the best interest of the public from happening. I enjoyed Maher's (.org) comments about removing the 3rd party evaluators. I truly believe ICANN needs to be accountable in the selection process to prevent gaming or having 3rd parties that are not experienced/knowledgeable enough to be making these decisions. Scalable or not ICANN must be involved. There is a responsibility for ICANN to protect public interest and the legitimacy of the candidates. If you assign a bunch of robots that follow instructions like PriceWaterHouseCoopers (eg .eu sunrise period), you will get companies that got trademarks in "music" under "coconut oil" a few months before the process to game the system when they did not use it in business or commerce nor were legitimate. The same company got the names "sex" "casino" and so forth courtesy of PWC who just checked if they had the trademark and if so accepted it.

There needs to be some logic, practicality and realism in this process. And the process needs to be respected.

Constantine Roussos
.music
.music Myspace
.music Twitter

Question By Michael D. Palage  –  Jan 21, 2010 10:15 pm PDT

Kieren,

In an attempt to better understand your position, could you please analyze each of your "reasons to say yes" under the ICANN staff proposal and the proposal put forward by Bertrand.

Short point By Kieren McCarthy  –  Jan 21, 2010 11:25 pm PDT

I sent a long response to the comment forum and have also gone back-and-forth a bit on my blog at kierenmccarthy.com.

Broadly I agree with Bertrand (and France). But I just can't help feel a horrible sense of Brooks Law creeping into this new gTLD process. The last thing we need is more discussions about solutions to discussions about solutions. ICANN as a community organization should learn how to bite the bullet and get on with it. There comes a point where the endless effort to find more answers to more worries starts to undermine the years of past effort. I think we are pretty much there.

Kieren

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