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On the Question of Closed Generic Top-Level Domains

The debate over so-called “closed generic” top-level domains has revealed that rarest of semi-mythical beasts, a creature often emblazoned in ICANN heraldry but as elusive as the unicorn on the UK royal coat of arms: an argument on principle. Occasionally an issue arises out of the muck of self-interested manoeuvring to reveal the deep idealism that moves most ICANN participants. You can see it by how it divides camps that usually march along in lock-step, and by how the predictable murmur of shopworn cliches is replaced by arguments of clarity and resonance. Such is the issue of closed generics, which refers to top-level domains that will not sell second-level domains to registrants. The word “generic” is used to distinguish these TLDs from brand TLDs, who have some intellectual property rights in the top-level name.

The Non-Commercial Constituency of ICANN sponsored a presentation of different views on closed generics [PDF] at ICANN 47 in Durban, and as usual, the NCUC session was the most informative and buncombe-free of the meeting. It got me thinking about what these principled arguers were really disagreeing about. It’s worth delving into.

Although they have a common label, the proposed closed generic TLDs are not all the same. Some will work just like brand TLDs, where second-level names will be issued but Internet users will have no ability to use them except to click them, or type them in. Others envisage what amounts to a rental of a name, where a user has exclusive use of a name but enjoys it not with the protections that come with being a registrant, but according to whatever terms the registry owner decides to impose as a condition of use.

The question now in front of the ICANN Board is: should these uses be allowed?

Advocates of closed generics (principled advocates) make the obvious point that they are not specifically disallowed by the Applicant Guidebook, and note that pretty much the point of the new gTLD program is that anything should be allowed that isn’t a violation of someone else’s rights—specifically defined rights, such as treaty rights or intellectual property rights. If we do anything else we’ll end up going down one rat hole after another trying to decide if this or that application is in the “public interest,” which is another way of saying that applicants will have to prostrate themselves in front of the GAC or some self-appointed arbiter of that notoriously undefinable term.

Opponents (principled opponents) object to the sequestration of an entire word from the general run of humanity and its privileged use on the Internet by a single actor. Another danger identified is that in the next round of new gTLDs, rather than be subject to all kinds of bothersome rules about needing to use registrars and protecting registrant rights, unscrupulous future applicants may simply declare their TLDs “closed” and sell directly to the public, giving registrants no more rights than the famously limited ones granted by End User License Agreements such as those issued by Apple and Facebook.

I’ll confess some sympathy with both of these arguments. But beyond the issue of today, how will this decision affect the shape of the Internet to come? Will important precedents be established. What’s the best lens through which to view the issue?

The greatest boon domain names have brought to Internet users is the ability to carve out a universally-reachable name that anyone create and (almost) own it. You can use it for pictures of your cat, or to create a multibillion-dollar company, it’s up to you. The terms of ownership are not onerous and they are pretty much perpetual, which means that as you develop it your domain name, you know that your investment of time is safe. No-one can take it away from you as long as you pay your annual fee and don’t engage in egregious or illegal behavior. To me, that’s the essential thing to preserve.

From this perspective, the question is not whether the TLD is open or closed; the question is rather what rights the domain name user has in that TLD. It’s worth going back to the founding document both of the domain namespace as well as of ICANN, RFC 1591, where Jon Postel wrote:

2) These designated authorities are trustees for the delegated domain, and have a duty to serve the community.

The designated manager is the trustee of the top-level domain for the… Internet community.

Concerns about “rights” and “ownership” of domains are inappropriate. It is appropriate to be concerned about “responsibilities” and “service” to the community.

3) The designated manager must be equitable to all groups in the domain that request domain names.

This means that the same rules are applied to all requests, all requests must be processed in a non-discriminatory fashion, and academic and commercial (and other) users are treated on an equal basis. No bias shall be shown regarding requests that may come from customers of some other business related to the manager—e.g., no preferential service for customers of a particular data network provider. There can be no requirement that a particular mail system (or other application), protocol, or product be used.

As well as the salutary reminder of the duties that operators of top-level domains owe to the Internet community, there is a prescient and quite specific prohibition on using a top-level domain to lock in users to a particular method of connection to the Internet, or to lock them into using a particular software solution.

If the spirit and letter of these rules are followed, it doesn’t much matter if the TLD is an “open generic” or a “closed generic”—the rights of the users are protected.

It’s worth noting that ICANN, institutionally, continues to recognize RFC 1591 as a starting point, as modified by IPC-1 (which deals with ccTLD delegations), IPC-2 (which concerns the establishment of new IP address registries) and IPC-3 (which re-affirms a single authoritative root). With the exception of these documents and any subsequent consensus policy that has updated it, RFC 1591 continues in full force.

RFC 1591 is a foundational document, the closest thing the Internet has to a constitution, written by a true father of the Internet, and its principles are entirely appropriate to the question of closed generics. If the rights of the user are preserved, and the duty of the operator to the community are affirmed, the open vs. closed definition is unimportant. That’s a principle that both proponents and opponents ought to be able to agree on.

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