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ICANN and Its Responsibilities to the Global Public Interest

In 1998, the United States government might have taken a different path in asserting its control over the technical administration of the DNS. It might have asserted full U.S. governmental control, or it might have turned over the functions to an international body such as the International Telecommunications Union. Instead, it created a “private-public partnership”, incorporated as a California “nonprofit public benefit corporation”, with a charter giving the company a dual mission of quasi-governmental functions combined with responsibility for operational stability of the Internet.

In all its deliberations, the ICANN Board must maintain a balance in its mission of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet. ICANN has the responsibility to draw the fine line dividing two contrasting areas, one where it should not go, and the other where it risks not doing enough. On the one hand, ICANN cannot become involved in areas such as content control and rule making in areas unrelated to operational stability. On the other hand, ICANN’s self image as technical coordinator has at times constrained it from taking action necessary to discharge its public interest obligations, such as, for example, requiring registrars to comply with their contractual obligations.

ICANN’s recent attempts to find a way to insert new top level domains in the root zone file illustrate the difficulties of achieving this balance. From a purely technical point of view, there is room for many additional new gTLDs in ASCII and in IDN.IDN versions. There are concerns about stress on the root zone, but it appears that this is a manageable risk, and ICANN is taking responsible steps to deal with it.

On the other hand, the whole question of how new generic top level domains would serve the public interest has never been openly considered by ICANN. The current proposal for an Expression of Interest proceeding illustrates this. Instead of being a straightforward determination of who might want to apply, the proceeding risks becoming an avenue for well-financed commercial applicants who treat the domain name system as a species of investment opportunity comparable to real estate. This is a far cry from the public interest in making names available to people who want to use them.

The proposals for selection of new top level domains present even more serious problems. There will very likely be multiple applicants for some popular strings, and ICANN has the job of selecting from among the competitors. There will also likely be applicants for strings that are obscenities or phrases intended to inflame social or religious conflict. From the standpoint of ICANN’s obligation to serve the “global public interest in the operational stability of the Internet”, ICANN cannot allow these into the root.

In addition, there is the continuing problem of minimizing trademark infringement opportunities. For better or worse, the United States government demanded in 1998 that ICANN become the enforcer of a global system of trademark rights. This quasi-governmental function, in the form of the UDRP, became part of the otherwise more technical duties assigned to ICANN. The extension of this involvement with trademarks is possibly the most serious test of ICANN’s abilities to promote the public interest.

ICANN’s Draft Application Guidebook (the “DAG”) for new gTLDs attempts to find the appropriate mechanisms for taking into account the sometimes conflicting responsibilities described above. The first and second drafts, issued in October 2008 and February 2009, respectively, were not successful in many respects.

These drafts demonstrate, all too clearly, ICANN’s reluctance to face its public interest responsibilities. ICANN proposes to create a system of independent decision makers to decide such questions as likelihood of confusion between different proposed strings for new gTLDs, alleged infringement of legal rights by a proposed string, and objections based on morality, public order and community objections. Of these, the first and second are probably amenable to objective determinations based on internationally recognized principles of trademark law, although there are serious questions as to how far ICANN should go in creating what amounts to international law. As to the questions of morality, public order and community objections to applications for new gTLDs, these can only be tested against conceptions of the public interest. ICANN apparently believes that getting a third party to do this work relieves ICANN of its responsibilities. There are two problems with this approach. First, there is nothing to indicate that any third party has either the expertise or authority to make these judgments better than ICANN, and second, ICANN’s mission to serve the public interest does not allow it to delegate its responsibilities to outsiders.

Further, ICANN apparently hopes that its self-serving requirement that all gTLD applicants waive all legal claims against ICANN will insulate it from litigation. ICANN is certainly justified in its fear of litigation. As a creature of California law and subject to US federal law, this risk is always present. However, attempts to pass off to third parties ICANN’s obligations to make judgments about the public interest will not lessen this risk, and may in fact increase it. The waiver of legal claims applies only to applicants for new TLDs, not to third parties that may be adversely affected by the process.

As another example of ICANN’s failure to face up to its responsibilities, ICANN proposes to create independent evaluation panels to choose from among conflicting applicants for the same new gTLD string. The call for expressions of interest states that evaluators must be capable of exercising subjective judgment. ICANN may have a legitimate need to consult with outside experts, but they cannot be allowed to make the final decisions. There are no grounds for a belief that a third party’s subjective judgment would give better results than decisions made by ICANN’s Board. The Board clearly must face up to its responsibility to make judgments in the public interest, based on the experience and expertise of the Board members.

To ICANN’s credit, it finally realized that there is a connection between the creation of large numbers of new gTLDs and the public interest in preventing a vast increase in cybersquatting and the spread of fraudulent practices. The first two drafts of the DAG neglected to deal this issue in any serious way, but since then ICANN has taken steps “to develop and propose solutions to the over-arching issue of trademark protection…” It is still an open question whether or not ICANN’s current proposals will be adequate to serve the public interest in protection of the legitimate rights of trademark owners.

ICANN has not been so successful in dealing with other overarching issues. In October, 2006, ICANN’s Board asked that a comprehensive economic study be completed before the introduction of new gTLDs, but it was never made. Instead, ICANN produced economic studies that purport to justify its proposals for a radical change in the policy of separation of registry and registrar functions. Whether or not this change will serve the public interest will apparently be judged by the results of the experiment, and not by a considered weighing of relevant evidence.

Even when ICANN grasps the concept of its public interest responsibility, it does not always come up with a reasonable approach to a particular problem. For example, the current proposed base agreement for new registries includes a provision allowing ICANN to amend the agreement unilaterally. While there may be a need from time to time to take account of changing circumstances, this brute force approach can hardly be justified as serving the public interest in a stable relationship between ICANN and the new registries.

Despite the concerns outlined here, ICANN has done most of the right things it was created to do and it continues to deserve our support. It is very unlikely that a single government or international organization could better fulfill the obligations undertaken by ICANN. However, a lot of work remains to be done, and ICANN must pay a great deal more attention to its global public interest responsibilities.

For the PDF version of this post along with an accompanying appendix, click here

By David Maher, Attorney

Filed Under


Great article David,Was a pleasure meeting you Constantine Roussos  –  Feb 10, 2010 10:57 PM

Great article David,

Was a pleasure meeting you in Barcelona. I completely agree with your assessment concerning ICANN’s responsibility towards the global public interest.

The mere fact that there are 3rd party evaluators worries me. Seems ICANN lacks the authority and leadership to take ownership of their responsibilities and solve any conflicts of interests or overarching issues in a timely manner. Not only that, the lack of decision-making and fear of “upsetting” the status quo is 100% evident. If ICANN is the expert authority and set up all the new gTLD policies why would they not make the decision on which party or applicant is acting in the best interest of the global public? This is not rocket science to figure out.

Eurid hired a 3rd party evaluator in PricewaterhouseCoopers to overlook trademarks in the .eu sunrise period. What ensued was unacceptable. Creative investors created shell registrars for $10k to snatch the most lucrative names and submitted trademarks in Sweden for words such as “sex”, “music”, “casino” and others which were never used in business. PricewaterhouseCoopers followed the policy “orders” and accepted those trademarks and the “shell” company registrar. I can describe numerous issues like these. Where was ICANN? Where was Eurid? Why doesn’t ICANN study these issues and assume responsibility?

This is what I see from ICANN: We will launch new IDN ccTLDs and declare small victories at the expense of the gTLD program despite the inconsistency in the policy making. I believe ICANN can handle all the new gTLD applications. Hiring 3rd party evaluators is a cowardly move for ICANN to neglect their responsibility towards the internet commmunity. If you can not handle the requests, then hire ICANN staff and train them to do so. Have the Board make the last vote on every new gTLD and verify that it is legitimate. Why is this so complicated? 3rd party evaluators do not care about new gTLDs, the Internet or anything resembling public interest. They are mere robots that follow procedures and mathematical equations. You get the points, you are awarded the gTLD. Why have an ICANN Board and Staff? These decisions are critical. So you spend years creating the guidebook and then take no responsibility on the selection and evaluation process? How is this possible? I do not believe for a second that it is an issue of scaling. Hire more staff, get the Board involved and make decisions in the selection process or else all credibility will deteriorate.

I am surprised such logical, simple steps are so difficult to understand and implement? ICANN has the resources, the staff and the expert knowledge to do this. Please, no 3rd party evaluators. Is it because ICANN is scared of legal ramifications if an applicant feels that they have been unjustly rejected? I think 3rd party evaluators increase the chances of this happening because there is a lack of transparency and expert knowledge about the topic. You can not automate the process of selection. Case by case scenario is the only fair way. Anything else is a disservice to the Internet public.

Leaders must assume their responsibilities. Delegation to 3rd parties creates more problems than it solves. ICANN is asking me and other applicants to invest money to launch a new TLD and have an outsider/3rd party evaluate my application? I have some issues with that. Unfortunately this highlights the propensity for ICANN to avoid decision-making and assuming responsibility. Keep it simple and logical. Common sense and timely decision-making goes a long way. Listen to the needs of the Internet and fulfill those needs.

Constantine Roussos

The public like choice - and lower prices aren't bad either Richard J Tindal  –  Feb 11, 2010 1:52 AM


Your central question is:  ‘What public interest is served by new TLDs?’  I think it’s the right question, so let me take a shot at it. I think new TLDs will create more choice and lower prices for consumers, and I view those two things as strongly in the public interest.  I believe the Clinton Administration had this in mind when they made the creation of competition, at all levels, a fundamental objective of ICANN. 

Absent real competition the public interest can be harmed by limited choice and artificially high prices.  To illustrate this we don’t have to look any further than the domain registry business.  Over the last three years incumbent registry operators, unconstrained by open competition, have routinely raised their prices.  Over a period that saw price declines in almost every other type of online service, gTLD registries took about $US100,000,000 out of the pockets of consumers and put it in their corporate bank accounts.  And that’s just the primary domain market.  Try to get a short, meaningful name on the secondary market and you’d have to mortgage your house - if you still own one. 

Will new TLDs create additional problems (trademark infringement, malicious activity, etc)?  If you look at the slew of protective mechanisms that new TLDs will have to implement (and existing TLDs do not) I think you could make a solid case that new TLDs will be safer places for online activity.

So I think the introduction of new and innovative TLDs that compete with ORG, COM, INFO, etc will serve the public interest through lower prices, more choice and better safeguards.  In my opinion, there would be greater harm by not introducing these TLDs. 

Richard Tindal

.CAT as an example of Public Interest being served in a new TLD with minimal harm Jothan Frakes  –  Feb 11, 2010 7:47 AM

David,  I respect you deeply and I agree with a lot of what you say.  I also have a different interpretation of operating in the global public interest that allows new TLDs to happen.

It was good to see you in Barcelona at the ICANN Studienkreis.

I hope that you had the opportunity to see some of the sites in Barcelona while there.  I made it a point to walk to the Picasso museum during one of the noon breaks.

While walking I noticed the widespread publication, use and advertising of .CAT domains.  Barcelona’s city website BCN.CAT was frequently prominently displayed.

I saw many other .CAT domains used over and over again.

On the sides of most of the buses were ads with URLs information about their transportation system was EMT.CAT and television station TV3.CAT.  The national theatre URL… TNC.CAT.

Throughout the city were everywhere - windows, billboards, shop doors, sides of trucks and vans that had URLs ending with .CAT.

PuntCat has accomplished reaching nearly 40,000 registrations since their launch. Being from the USA, I did not grasp the public benefits fully until seeing Barcelona again after .CAT’s launch. 

I witnessed personally how a new TLD could provide public benefit like .CAT had.  I was quite impressed.  But I digress. 

I appreciated your speech about serving the public interest, the global public interest.  Understanding that you work for Public Interest Registry, I’d imagine you hear those two words frequently. 

I know you authentically seek good things in the public interest.  I think the public interest is a good thing to stand up and wave a flag for.

In the case of the new TLD .CAT that I had just witnessed in widespread, public use, I want to wave the flag in the favor of new TLDs that serve the public interest like they have.  Like I believe that other new TLDs will, once they are finally provided the opportunity to do so.

I do think it is important to acknowledge addressing some of the thorny issues related to trademark infringement and alleged rampant cyber-squatting in the new TLDs, because that purportedly harms the public interest.  Assuming it happens.

I thought it might be practical to take a real world example of the scale and scope of the harm in a new TLD.

A good example of how this would play out in a newTLD would be how it has played out in a new TLD launch and afterwards, using .CAT (which is now almost 4 years old).

With nearly 40,000 registrations in .CAT, they evaluate the content and use of these names by “spidering” the content a few pages deep for every .CAT domain that exists.

Their findings:  The domains are in use and do not appear to be ‘parked’.  They have websites that contain numerous levels and pages of relevant content.

I decided to look up the number of UDRPs that the vile cybersqutters who will pollute the new TLDs had triggered over tha past 4 years and was only able to locate 4 of them.

All were in 2007, and none since.  WIPO D2007-1119, WIPO D2007-0168, WIPO D2007-0784, and WIPO D2007-1196 are the four cases.  Three were transferred, one (the last of those listed) was denied. 

At the end of 2007 there were approximately 26,000 domains in .CAT.  Since 2007, there were no cases listed with any of the UDRP providers with .CAT in 2008 or 2009, and none to date this year.  14,000 more registrations over more than 2 years with no UDRPs.

It would seem from the numbers that there might be some cognitive distortion and magnification of the scale that the public interest (“public” being the rights owners in that statement) when contrasted against the public benefit.

I am throwing the term “public interest” about somewhat casually.  It is osmosis, I think at play.  I watch it happen so much I get to thinking it is OK to bend the term to suit my will.

New companies form all the time.  These companies are seeking to create new jobs, pay taxes, and create benefit while delivering value.  And to register a domain for that business, they currently have to settle for using a 2-3 word combination (or longer) domains or having to drop the last vowel in a word just to get an available domain.  Or that new registrant must, as Richard Tindal identifies, use the secondary market where the prices and the domains are premium.

I give the example of new companies or small-to-medium businesses, but charities, church groups or other organizations can be consumers of new TLDs.  New and current registrants, and those who would hope to connect to them through a domain name seem like they are the public interest.

The challenge that happens in the ICANN space (meetings, lists, stakeholder groups, etc.) is that there are terms like ‘Public Interest’ or ‘Community’ that are used loosely, frequently, and not always appropriately. 

They sound really amazing and inclusive, but sometimes they are used in one context as it suits, and then used in an entirely different context, however it suits the user. 

Often these words are the tool of the artful lobbyist/spokesperson seeking to wave their hands and cast a spell on the unknowing when it suits an opaque objective, like for example delaying the new TLDs.

The challenging problem being faced now is that there are a very limited number of top level domains, being operated by an even smaller number of companies.

Companies that now have registries benefit from the basic macroeconomic principle of scarcity in supply and demand. 

Limited resources, like a limited supply of food ... do not seem to be in the public interest.  The public interest seems better served by abundance.

The public interest seems better served by getting the new TLDs in place to have competition and better, relevant choices, at fair prices.

.CAT shows an example to all that the public interest can be served and that world won’t stop when the new TLDs come.

Thanks, Jothan. I agree completely about .CAT. David Maher  –  Feb 11, 2010 3:18 PM

Thanks, Jothan. I agree completely about .CAT. Its success is a tribute to Amadeu's vision, foresight and determination. David

ICANN is a public-private *partnership* Paul Stahura  –  Feb 11, 2010 5:00 PM

You said yourself that ICANN was created as a “private-public partnership”, yet you stress only the public part.

ICANN was created as this partnership in order to harness private interest for the public good.
It’s like TV.  Yes we have PBS, which is a single non-profit channel - paid for by the other broadcasters, contributions, and by the US Government. 
But at the same time, it is in the public interest to allow many other TV broadcasters, nearly all of which are private companies.
They all bring public benefits that we all enjoy.  Expanding TLDs is the same thing.
It would have NOT been in the public interest to restrict or stop the expansion of television channels, say in the 1980’s, to the few that were broadcasting at the time.  Or to make a requirement that any new channels had to be PBS2, PBS3, etc.

Now we have cable TV and more broadcasters - not only non-profits like CSPAN, but for-profits like HBO, MTV, The Science Channel and a gazillion others.
I guess if you had your way, we’d still be stuck with UHF, and not have even expended to VHF, all under the guise of being in the public interest.
I would bet PBS veiwership went down when the Science Channel, and CSPAN, for example, came out.
Seems to me, as an executive of an incumbent registry, you don’t much care for the competition that new TLDs will bring.

ICANN allowing the expansion of the namespace is every bit as much in the public interest as the FCC allowing the expansion of private broadcast and cable television broadcasters.

Paul:As you well know, PIR, and the David Maher  –  Feb 11, 2010 5:17 PM

As you well know, PIR, and the entire Registries Stakeholder Group, are on record as supporting expansion of the domain name space. More competition will improve service from all the registries, and that is in the public interest, just like the expansion of TV and cable.

Honestly, Paul Stahura  –  Feb 11, 2010 5:58 PM

I agree with you on that - new TLDs bring new competition which will improve service from all registries.
More innovation, lower prices, etc.  Very good for the public, even if it negatively impacts incumbent registries economically.
It appears to me some of ya’ll say you are for new TLDs on the record, but try to delay or stop it behind the scenes.
How about we work constructively to address the few outstanding issues instead of bashing ICANN in circleid articles?

Paul - call me - any time. David Maher  –  Feb 11, 2010 9:29 PM

Paul - call me - any time. We are ready to work with you. David

Hey Paul,The problem is that ICANN has Constantine Roussos  –  Feb 11, 2010 10:23 PM

Hey Paul, The problem is that ICANN has not shown any signs that they are interested in solving the outstanding issues. I have proposed a logical approach and swift decision making based on a leadership-approach. Who is that leader in ICANN though? Even though trademark mechanisms were proposed by IRT, I did not see ICANN agreeing on any. Why is that? What is taking so long? The next issue of vertical integration is obvious from a simple economics point of view. On one hand you allow monopolies such as Verisign operating both .com and .net exist and then complain about vertical integration for new TLDs. Vertical integration exists in all markets, especially the music industry. Economics experts said that it is obvious that you need an open market and competition. It benefits consumers. Why is it so hard for some to see the big picture? Then we have the traditional "2-character extensions are only reserved for countries" issue. Why is this even an issue for IDNs? If ICANN respects globalization and IDNs and the fact that a great number of generic words in Japanese, Chinese and Korean are 2-characters, then this prehistoric concept of 2-characters base don tradition should be neglected. Why not have 2-characters? Is there a logical reason or compelling argument that is not merely based on "tradition"? The economic demand is not an overarching issue. Some entities/companies can create more economic demand because they offer greater value to consumers that goes beyond commoditizing a product. Why was .com more successful than .net? It is obvious that someone along the line made the .com brand more important. Economic demand fluctuates depending on the product, the brand name and the company strategy. Why is this an overarching issue? I think my .music branding and initiative has proven that economic demand depends on how you execute the strategy and create value (hence demand) to your target audience. For example, if .mobi became the industry standard, do you believe this will affect the economic demand for .mobi TLD? Problem is that before .mobi was released companies started using the "m." subdomain. If ICANN released the .mobi extension before this "m.company.tld" phenomenon happened then it would be safe to say .mobi would be more successful today. Economic demand is something that needs to be created. This is a function of your value proposition, your brand and your strategy execution. Good luck 100% solving the malicious issues. Criminals on the web will always find ways to beat the system and most of these problems are created by human mistakes and accidents, not policies, such as choosing the wrong password. Solving this issue is akin to saying you will eradicate the decentralized nature of terrorists, or even eradicating piracy of music/movies on the web. Policies and measures are pretty simple and technology can be used to make systems more secure. If you want to prevent malicious behavior, then the most effective approach would be educating web surfers who fall victim to this type of activity. The currency on the web that is the most important is "trust." I have been promised by ICANN 3 times that we would have .music at least processed or even launched. Timelines were changed. This is akin to be promised by your manager that you will get a raise 3 times and all 3 times the company rejects you every time you get evaluated, saying that next time you will get the raise, even though you have performed and met all criteria each time. Bashing ICANN is not my intent. However, sitting around and sucking up to them and patting them on their back is not my idea of constructive criticism. ICANN should be led by individuals that can stand up to their responsibility and are true to their word. Noone I have ever worked with ever promised me something 3 times and then failed to deliver. Would any logical person trust someone when they lied to you 3 times on the same topic? Ponder on that for a second. I see the interests of corporations trying to protect their monopolies and the status quo, but all this delay is unacceptable. The level of conflict of interest within ICANN is absolutely unacceptable. It has been 2 years that I have spent following the ICANN process. Something needs to be done. I have never been asked by ICANN about the economic demand my company has made for the .music brand that I have created. Why not use what I did with .music as an affirmation about economic demand that was created by expanding the value proposition of a TLD beyond its commoditized nature and instill a higher willingness to pay? If anyone has any solutions to solve the overarching issues let ICANN know. I doubt they really care though. Leaving us applicants out to dry 3 times is unacceptable. Then you have people accusing me and others of being insiders. If I was really an insider, I would figure out how to make ICANN improve its decision-making and keep its word on their promises. Let us be frank now. Is there any credibility and trust in ICANN? I see no commitment or timeline from them to voting on the overarching issues and coming to an agreement. It is like asking a Laker fan to convert into a Celtics fan. Good luck with that. USC Trojans never were into the UCLA Bruins. What makes ICANN think they can appease both big business, the status quo and corporate interests and new TLDs/innovation on the web? The existing registries are not complaining or fighting for new TLDs. Why? Because they are enjoying their "oligopoly". Conflicts of interest? You bet. The irony of the matter is that when a decision is made on launching the new TLDs, the "haters" will adapt and change their approach. Why? Because they will be forced to compete. Who wins? The consumer and the Internet user. How is this so difficult to understand? Any solutions anyone to speed up the process? Constantine Roussos .music

Delaying new TLDs is NOT in the public interest Minor Childers  –  Feb 11, 2010 6:13 PM

Mr Maher,

I welcome the idea of elevating the concept of public interest to the forefront. I do agree that ICANN’s fundamental mission should be to do what is best for the Internet at large, and not for any specific self serving group - be it large trademark holders, existing registries such as PIR, or new gTLD applicants.

I respectfully have to disagree with the vast majority of your analysis, however.

To begin with, I think it is important to disclose that in your capacity as Senior Vice President, Law and Policy for PIR, you have a defined economic interest in preventing a speedy rollout of new TLDs. Indeed, PIR manages the .org registry and its 8 million names. It clearly stands to lose as more generic alternatives to .org are introduced, such as .ngo, .corp, or .llc. For the record, PIR’s partner, Afilias, has an almost equal amount at risk—a back-end contract worth in excess of 24 million dollars a year. We all have our economic interests, which is fine, but I think you owe it to the readers of CircleID to state yours more clearly. In my case, my interest is, like my competitor, Mr Malthouse, to see .eco become a reality.

Second of all, you argue that the current “Expression of Interest” proposal is a “far cry from the public interest in making names available to people who want to use them”. The implication of this statement is that EOIs will be submitted primarily for purely speculative reasons, by people with no interest in actually completing a full application, and subsequently, in your words, “using the names”.

As someone who has followed the new gTLD process closely since November 2008, I can assure you that the parties submitting EOIs will do so with the intent of using these names, or at least a subset of them, and not reselling them on some non-existant secondary “slot” market.

Second you argue that ICANN has “finally made the connection between the creation of large numbers of new gTLDs and the public interest in preventing a vast increase in cybersquatting and the spread of fraudulent practices.” This carefully constructed sentence implies that there is an established link between more gTLDs and higher rates of cybersquatting, when in fact historical data shows that virtually all cybersquatting occurs in com, org and net, and not in the newer top level domains such as mobi, asia, and tel.

Third, you claim that ICANN’s board asked for a “comprehensive economic study” be made in 2006, but that this study was never made. Again, this is misleading. As you are very well aware, several such studies have been made, and they all support the gTLD thesis. For example, see http://www.icann.org/en/topics/new-gtlds/prelim-report-consumer-welfare-04mar09-en.pdf

Fourth, you invoke the magical “Overarching Issues” so often used by the trademark interests in delaying new Top Level Domains. This catch phrase has become completely meaningless, in the sense that these “issues” will very certainly never be resolved to the satisfaction of existing registries such as PIR, and the very vocal trademark interests. You claim that “more work needs to be done”, when in fact no amount of “work” would ever produce a “satisfactory” result. It has been almost 2 years since the new gTLD program was approved by the board in Paris 2008. How much more “considered weighting of the evidence” do we need?

Finally I disagree with your conclusion. ICANN has not done all the things it was created to do. In particular, it has not created any true competition in the top level domain space, which was, and should remain, along with the security and stability of the DNS, its primary mission.


Minor Childers
Dot Eco, LLC

I agree. Delaying new TLDs is not David Maher  –  Feb 11, 2010 9:31 PM

I agree. Delaying new TLDs is not in the public interest. Still, the process has to be done right, and I don’t think ICANN has got it right yet.

A little bit late...... Jeffrey Eckhaus  –  Feb 18, 2010 5:19 PM

Thanks for your post and the constructive dialogue you’ve sparked.  It’s good to hear once again in a public setting that you and PIR are such strong supporters of new gTLDs. Like most, if not all, potential gTLD applicants, we are interested in the successful execution of ICANN’s mission for enhanced competition, stability and good internet governance.

What is particularly frustrating for many of us who have been working on new gTLDs for several years is the frequent refrain that “public interest” or “economic studies”  or “consumer/competitive benefits” or similar issues were not considered before the ICANN Board approved moving forward with new gTLDs.  While not a perfect analogy, these arguments are similar to what we sometimes see in Washington, DC.  Consider a scenario where Congress passes a law, signed by the President, mandating that industries must cut carbon emissions but leaving it to the EPA to define the requirements and how the carbon reduction “program” will work.  As the EPA works to implement the law, companies objecting to Congress’s law in the first place go to the EPA and say: “don’t implement anything—-we really haven’t considered the cost-benefit analysis, etc.”  Well, it’s too late for this type of threshold questions…the law was already passed and the EPA is now going to implement it to the best of its ability.  Similarly, while the ICANN staff is trying diligently to implement the Board’s decision to proceed with new gTLDs, people dissatisfied with the Board’s decision are now reaching for any argument to reopen the issue. 

David, along these lines, in your post, you assert that “in October, 2006, ICANN’s Board asked that a comprehensive economic study be completed before the introduction of new gTLDs, but it was never made.”  I think it important for the community to understand that Chairman Dengate Thrush has stated that the Board’s request in this regard was associated with “considering the renewal and amendment of existing gTLD contracts such as .BIZ and .INFO, and not new gTLDs.”  Thus, the Board request has been improperly interpreted by opponents of new gTLDs and since you are a publicly declared proponent of new gTLDs, it’s disappointing to see you perpetuate this red herring.  If this argument is not part of an 11th hour attempt to derail or delay the new gTLD program, then why weren’t people jumping up and down screaming “where is the economic study”  before the Board approved new gTLDs in 2008?  Furthermore, regardless of the original intention of the Board’s 2006 request, ICANN has commissioned several economic studies that are more broadly focused than just the vertical integration issues.  I encourage anyone interested in these issues reports to read them.

Progress And Freedom Foundation president on "Public Interest" Jothan Frakes  –  Mar 4, 2010 10:18 PM

I was pleased today to see an authoritative voice of the Progress and Freedom Foundation clarify use of the term “Public Interest”.

Adam Thierer is the president of the Progress and Freedom Foundation, and he helps to clarify the manner in which the term ‘public interest’ shifts with political winds to suit whims.

Quoting from his remarks at the FCC hearing:

II. The Normative Case against Expansion of Public Interest Regulation

A. The Inherent Ambiguity of “the Public Interest” Notion

The normative case against expansion of public interest regulation begins with the fact that this notion has always been haunted by an inherent ambiguity that is fundamentally at odds with America’s First Amendment tradition. Indeed, while public interest regulation has been considered the cornerstone of communications and media policy since the 1930s, at no time during these seven decades has the term been adequately defined.

Former FCC Commissioner Glen Robinson has argued that the public interest standard

“is vague to the point of vacuousness, providing neither guidance nor constraint on the agency’s action.”

References: Glen O. Robinson, The Federal Communications Act: An Essay on Origins and Regulatory Purpose, A LEGISLATIVE HISTORY OF THE COMMUNICATIONS ACT OF 1934 3, 14 (Max D. Paglin ed., 1989). Likewise, Lawrence J. White has noted that, “The ‘public interest’ is a vague, ill-defined concept. Under the ‘public interest’ banner the Congress and the FCC have established far too many protectionist, anticompetitive, anti-innovative, inflexible, output-limiting regulatory regimes and have unnecessarily infringed on the First Amendment rights of broadcasters.” See Lawrence J. White, Spectrum for Sale, THE MILKEN INST. REV. (June 2001) at 38. See also William T. Mayton, The Illegitimacy of the Public Interest Standard at the FCC, 38 Emory L. J. 715, 716 (1989).

And Nobel Prize-winning economist Ronald Coase argued 50 years ago that

“The phrase… lacks any definite meaning. Furthermore, the many inconsistencies in commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation.”

References: Ronald H. Coase, The Federal Communications Commission, 2 J. L. & Econ. 1, 8—9 (1959). Even supporters of broadcast regulation such as Paul Taylor and Norman Ornstein admit that, “neither in the 1927 *Radio+ Act nor in the 1934 [Communications] Act, nor subsequently, did Congress define clearly what actions by broadcasters would represent managing their stations in the public interest.” Paul Taylor & Norman Ornstein, New America Foundation, A Broadcast Spectrum Fee for Campaign Finance Reform, Spectrum Series Working Paper No. 4, (2002) at 6.

And that is still true today. Simply put, the public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.

Again, it is refreshing to see a person in a position of authority provide clarity to the position that the Progress and Freedom Foundation has on the use of the term “Public Interest”, and I look forward to their authentic, appropriate and consistent use after today given these strong statements.

Essentially it sounds like its use is inappropriate to be used after today without contradicting itself.

Jothan,I read Adam’s testimony and I largely Michael D. Palage  –  Mar 6, 2010 10:11 PM

Jothan, I read Adam’s testimony and I largely agree with what he said. However, as you may notice in most PFF publications there is the following disclaimer: “The views expressed in this report are his own and not necessarily the views of the PFF board, fellows or staff.” The beauty of the PFF and why I have enjoyed being an Adjunct Fellow there is because it provides an environment where I can share ideas with the staff and then communicate ideas/viewpoints to help foster thought leadership on important Internet governance issues in the broader community. I share Adam’s concern about how the vagueness of Public Interest standard within the context of the US regulatory environment and the scope of First Amendment Protection provided under the US Constitution. But there is a fundamental difference between (i) invoking “the public interest” as a justification for new regulation (as the FCC has traditionally done in censoring broadcast speech), and (ii) insisting that ICANN must make “ensure that its decisions are in the public interest, and not just the interest of a particular set of stakeholders” (paragraph 4 of the Affirmation of Commitments). The former is using the “public interest” as a sword for policy-makers, while the latter is a shield against policy-making captured by influential lobbies. That was precisely the point of my recent article, “Top Three Reasons to Just Say No to ICANN’s Current EOI Proposal,” where I suggested that ICANN should look beyond the narrow interests of companies with a strong stake in, for example, starting the gTLD application process as soon as possible or getting the opportunity to claim priority on gTLD slots. Thus, as a general matter, I believe the inclusion of the “Public Interest” standard in the Affirmation of Commitments (AoC) was not only appropriate but necessary as a guiding principle for ICANN, especially given the global nature of the infrastructure that ICANN is entrusted to coordinate. So, Jothan, do you believe the inclusion of the “Public Interest” standard was appropriate? If not, what standard should guide ICANN’s decisions? Unlike the FCC, which is a regulator, ICANN is supposed to be a technical coordinating body. Under the ICANN bylaws, the Government Advisory Committee (GAC) does not have veto authority over ICANN, a private sector-led organization. Instead, the ICANN bylaws have entrusted to the GAC the responsibility to raise “public policy” concerns with the ICANN Board. The GAC ability under the ICANN Bylaws to raise questions to the ICANN Board (essentially, “Hey, slow down!” or “Have you thought of this?”) provides a critical safety valve mechanism that I and others in the community strongly support. In the particular case of gTLDs and the proposed EOI process, some of the concerns raised my article and subsequently in the ICANN’s GAC communication, were also later raised by some of the leading international for-profit and non-profit organizations—including Microsoft, IBM, BBC, Red Cross, NCTA, IKEA, Time Warner, UBS, Coca-Cola, to name just a few. So when these internationally recognized organizations voice concerns similar to those raised by the GAC, perhaps ICANN really needs to slow down and think about what it’s doing. Again, it’s here that ICANN should look to the “public interest” rather than to the particular interests of those with a strong stake in conducting the process a certain way. I’m not saying it’s easy to discern what really would be in the “public interest” here, but it’s pretty easy to say that rushing through the process or making it easy for speculators to turn a quick profit on gTLD slots established in a poorly-conceived EOI process would not be “in the public interest.” In general, I agree that there is a real danger that the “Public Interest” language in the Affirmation of Commitments could be used to justify future ICANN mission creep. That’s why I’ve long expressed (and will continue to do so) concern about ICANN deviating from its charter as a “technical coordinating body” to engage in operational activities, such as operating a root server, operating a gTLD registry (.INT), etc. Mike

This is my take on the question Constantine Roussos  –  Mar 6, 2010 11:13 PM

This is my take on the question you posed:

“Do you believe the inclusion of the “Public Interest” standard was appropriate?  What standard should guide ICANN’s decisions?”

I believe in the bylaws of ICANN and the element of increasing competition and options on the web. I believe that universal ICANN law should apply to all gTLDs including .com and ccTLDs such as .tv and .cm. You want things consistent then you apply them across the board.

Trademark attorneys complain about their trademarks potentially being hurt because of new gTLDs. That is a myth. Look at typos of Myspace.com such as Mysoace.com and Myspcae.com and you see that those domain are not registered in any other extension other than .com.

ICANN is not a trademark clearing house and big brand attorneys have no place to integrate special laws for special TLDs. Aren’t there clearing houses already that the trademark community uses? Why does the domain industry have to invent their own elaborate trademark protection mechanisms for SOME TLDs? Those are already in place. It is NOT in ICANN’s bylaw to be true to ONLY USA law and protect the big brands from the US. You want fairness, you apply every thing across the board to ALL TLDs that ICANN administers in the root.

Public interest is a loose term I agree. It all depends how you use it. Attorneys such as yourself will say that public interest is what benefits your clients. In contrast I would say public interest is whatever benefits the music community. If I am working on a community-based application with RESTRICTIONS on who is allowed to register the domain, why all this fuss about trademarks and additional expenses to the registries? Why don’t you focus fixing the issues that plague .com because that is where the real typosquatting and cybersquatting occurs. Do not look at numbers but look at actual money derived from parked pages through .com websites. You look at .cm and potentially .co. The ccTLD typos pose the biggest threats.

My belief is that ICANN is wasting time, resources and taking money from registrants/registries to implement trademark mechanisms that do not make a difference that really matter. There is no impact. Those mechanisms are already in place. If you want new ones please solve the ones occurring in the .com arena - the biggest impact.

ICANN needs to increase competition on the web. I think there are strong trademark law that covers everything. A special interest group can not impose all these measures to new TLD entrants while keeping the old “oligopolies” abiding on different terms because they were grandfathered in. You want to talk about fairness and objectivity, there you have it. Minds and MAchines did do a study on the impact on brands and it does not take a rocket scientist to know the results from their findings.

You are contradicting yourself saying that ICANN is deviating from its charter as a coordinating body to engage in operational activities, while you and other attorneys are pushing to make ICANN a “trademark protection” and an “academic” body. Again, I believe the delays have cost registrants money since issues shoud have been finalized already, wasted my time and other applicants time and new unnecessary costs such as clearing houses imposed on registries. The big brands should pay all those costs they love those measures. Special interest groups…

Is public interest doing what is fair or is it what benefits organization’s objectives? If you choose fairness and following bylaws then we have wasted about a year looking at issues that really make no difference to internet users. Users want their extensions (.music) and millions that are following us want it. They do not understand how a restricted TLD should be influenced by NEW trademark mechanism devised by attorneys in the domain industry. Those mechanisms exist. If you claim they are ineffective and new ones need to be implemented, then isn’t it fair to impose those across the board? Maybe ICANN needs to look at changing some of its bylaws to reflect the real situation.

I ask you: Do all the things that have stalled the process really make an impact or make a difference that matters to internet users? I think they make no difference. The market will determine the success of a TLD. Why we stalling this by talking about “academic” economic demand and trademarks? The market and existing legal mechanisms used in other TLDs/ccTLDs can determine those.

So you are saying it is fair that .com, .net, .org and ccTLDs should follow grandfathered trademark mechanisms that are looser while new gTLDs should incorporate stricter trademark mechanisms because more cybersquatting will occur in new extensions? The word fairness, public interest and competition to me are words that are abused and twisted.

So you think ICANN should slow down even more? And you are saying this because the leading brands and corporations biased trademark attorneys share your same biased opinion? And GAC? You think it was fine that new IDN ccTLDs were launched without addressing the overarching issues and creating state-run monopolies in their countries offering one IDN ccTLD without allowing IDN gTLDs in the marketplace? If I was to give a “Stifling Innovation Award” I would award one to all the big brand trademark attorneys. That is the opinion of the attorneys NOT all the employees and executives.

I am tired of the “zero solution” and continuous complaining and “slow down” comments. You have anything useful to say to SOLVE the issues then mention it. This is the year 2010. Are you ever online to see what is going on? New TLDs should have launched ages ago. We want solutions Michael, not questions, so contribute. Make a difference that really matters. I disagree with selling EOI slots by the way, so its a place we both agree on for a change.


Constantine,Do you believe if Universal Music or Paul Tattersfield  –  Mar 7, 2010 1:05 AM

Constantine, Do you believe if Universal Music or Time Warner see value in .music you will have a realistic opportunity of acquiring the rights to run .music? And if you are unsuccessful in getting ICANN to award .music to you, do you think it would be in the public interest for ICANN to award, what is in effect a private monopoly in perpetuity, to a single dominant player from the Music Industry?

Hey Paul,I have been pushing to ICANN Constantine Roussos  –  Mar 7, 2010 2:26 AM

Hey Paul, I have been pushing to ICANN to look into the issue of multi-stakeholder community applications to represent the interests of all players in the industry such as the major labels, the major publishers, the indie labels, the indie publishers, music companies and more importantly 99% of all musicians that are not signed to a major label. Also what about the non-commercial constituents? I strongly believe that .music must be a restrictive gTLD, with mechanisms to prevent gaming from domainers. No .music auctions and no monopolistic behavior from the traditional big players and control by one of them. I believe that their interest is aligned with protecting their trademarks as well as creating new opportunities. I have said it before and will say it again, the .music TLD will be a waste if it is allocated and used in the traditional method. Every keyword.music must be used to benefit .music registrants as an ecosystem. I understand the propensity of opening up TLDs to everyone but I think it is the wrong approach. The .music domain should only be for music entities and their registration must be verified. I have spent 5 years building the platform to power .music and it will push the envelope in regards to bringing innovation in the TLD space. I will be pushing for allowing business plans to be noted in the comparative analysis. I believe the major companies do want to see transparency and fair representation. There are too many conflicts of interests within the music industry for one major player to run it. What about the global musician? There is no if in my mind Paul. I will be successful in launching .music. My belief is that dominant players such as Warner or Universal can not go for it because it will cause too much friction in the music industry and .music can not be an extension of exclusion. If ICANN wants true competition, openness, then I hope their application process will award the best applicants with the best business plan with the TLD. My goal is all-inclusive for all music constituents and creating an ecosystem that is closed, restricted and actually provides value to registrants that go beyond just the domain name. I can not disclose more information about the integration of Music.us marketplace platform with .music but I know one thing for sure: the .music network will increase the pie for the music industry and create more opportunities. If it was just selling domain names I would not be so passionate about .music. I want to do something more than sell domains and commoditizing the TLD. As I told Michael Palage earlier it is all about making a difference that matters. I hope ICANN will allow applicants such as myself show them what we can do for our corresponding industries. You have some great points and have discussed them extensively. I can not disclose more information but you are certainly on the right track and framework of thought. I am pushing for multi-stakeholder community application. The global music industry must demand a multi-stakeholder community application as I outlined at my presentation at the ICANN Studenkreis in Barcelona and in my recent comments to ICANN. The questions I ask myself all day is how to expand the pie for the music industry, create new opportunities for revenue generation and stretch the envelope when it comes to discovery of music. I disagree with all ideas to incorporate open applications for gTLDs such as .music where any domainer can register thousands of domains and park them. That is what is wrong with the domaining industry. Where is the value? The .music gTLD is not one that should be open. It must be restrictive and community-based representing multiple-stakeholder groups in regards to governance and transparency. I think the problem that ICANN has is that it is lumping all new gTLDs under one application. However the truth is that each community-based application is unique, each with its own community "public interest". I think value is created not earned. My goal is what you said: create value in .music so that everyone in the music industry buys and believes in my vision and strategy. I have many test the marketplace platform and it is like nothing that exists in the Internet today. I delayed the Music.us launch because of the .music integration. At the end of the day all the big players will take part in .music, because of the .music ecosystem value proposition. 3 million+ supporters believe in my .music initiative and all of it is the shared vision of the ecosystem - not just the extension per se. If I was just to sell domains and only domains like traditional TLDs, then I would have quit already. This whole ICANN process and delays are not worth it if I was just looking to sell just domain names. Look at .travel for example. The public ranks the .com as king and the .info, .biz and rest as second-tier and inferior. Even worse nearly noone knows that gTLDs such as .travel, .tel, .pro exist? Ask around. And then you have attorneys thinking that their trademarks will be hurt by new gTLDs. How can your trademarks be hurt if noone knows you exist? How about .aero or .museum and .jobs? All this trademark talk is not significant and a way for attorneys to delay the process and get paid as a result. I wish ICANN exercised some logic in their delays. You want to test this? Go in the streets and ask people if they know .travel and all the new gTLDs such as .pro and .aero and .museum. I guarantee 1 in 20 will know. I know cause I have tested it. Let us move on and be logical. Rock on! Constantine Roussos .music

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