December 2007 - Discussion between various experts on GeoTLDs

From: Michael Leibrandt [mailto:michael_leibrandt@web.de]
Gesendet: Sonntag, 2. Dezember 2007 08:32
An: governance@lists.cpsr.org; wolfgang.kleinwaechter@medienkomm.uni-halle.de

Subject: Re: SV: [governance] Innovation

Hi there,

For IG senior citizens like Wolfgang and me this discussions sounds quite familiar. Quite frankly, for two reasons I believe that the issue has lost some of it's importance: a) Some years back, many among us believed that we in the IG / ICANN community were crafting the new world order, or at least create the United Nations of the digital age. Today, we're discussing CityTLDs. See the difference? The IG has become regionalized, which I think is a pretty good development. To use my favorite example: The parliament of Berlin has voted down the .berlin proposal with a majority decision. Does anybody think that such a local decision should be ignored by an ICANN ALAC? I don't believe in the concept of a world government, and I also do not believe in a global Internet user representation. Can there be a better balance of participation and representation than in a sitiuation were your neighbourhood MoP lives next door. So, wherever it fits, the concept of "think global, act local"

is a pretty good one even for the Internet. MacLuhan once talked about the global village. I think he was terribly wrong, because we will never share the same values and believes around the world. To the contrarary: In the Internet age, the village becomes global: Local values and believes can be made heard and respected worldwide. b) The idea of a seperate form of participation and representation does only make sense as long your facing a subcultural development which, due to its innovative nature, is not sufficiently covered by the existing political structures. Regarding the Internet, I guess we are reaching the point where it becomes a mainstream issue, directly or indirectly effecting every citizen. So, if the electorate of the Internet community equals society at- large, the outcome of IG elections would produce the same core values and believes than general elections. I'm very much in favour of the fact that, for example, the "automotive community" is doing it's own elections and decisions on safety standards and clean air requirements. The inclusion of external effects is one of the greatest improvements in the difficult history of the democracy, and even the Internet community will finally have to move into that direction. Seperate decision making procedures pretty much look like an attempt to camouflage vested ecenomic interests.

Michael

From: Kleinwächter, Wolfgang [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de]
Gesendet: Dienstag, 11. Dezember 2007 17:24
An: governance@lists.cpsr.org

Subject: SV: [governance] .berlin and ALAC

We had a great workshop on the issue of GEO-TLD during the IGF in Rio. We discussed also concerns of public administrations but in a way that such concerns should not be used to block a development but to find a consensus with the aim to promote competition, to offer more innovative services and to give consumers more choice. Here is the report which I gave the other day in the reporting back session.

Report on CIR-Workshop
"Broadening the Domain Name Space:
Top Level Domains for Cities, Regions and Continents?

IGF, Rio de Janeiro, November 15, 2007

Excerpt from the "Reporting Back Session"

NITIN DESAI:
I now have Wolfgang Kleinwächter, on the broadening of the domain name space.

WOLFGANG KLEINWÄCHTER:
Good morning, everybody. Thank you, Mr. Chairman. My name is Wolfgang Kleinwächter, from the University of Aarhus. I was, together with five other organizations, the convenor of one of the workshops on critical Internet resources. The subject of the workshop was: "Broadening the domain name space, top-level domains for cities, regions, and continents." It was on the so-called GEO TLDs.

The workoshop turned to become the first global summit of GEO-TLD projects in the world, both of existing in emerging projects of top-level domains which has a reference to a geographic name, to a city, a region, or some other geographical or geopolitical name.

We started with the presentation of three existing top-level domains, dot EU, dot Asia, and dot cat, for Catalonia. And then we had the presentation of emerging projects, which included cities, regions, and continents. The projects presented included dot NYC for New York City, dot Berlin, dot Paris, dot cym for Wales, dot GAL for Galicia, dot btn for the Bretagne, dot mercusor for a group of Latin American countries, dot lat also for Latin American countries, and dot Africa.

After the presentations we had a discussion about whether it makes sense or not to have such kind of new top-level domains in the process of the introduction of new gTLDs, which will be started by ICANN soon. We heard comments from the user community, the individual users and the business users. And then we had a nice discussion with members from the audience. We had around 130 people in the room.

Summarizing the debate we can send four messages from the workshop to the global Internet community and the involved and concerned institutions and organisations::
1. There is a growing wave of projects for new TLDs which have geographical element in it. This is seen as a new opportunity for global cultural branding, for the stimulation of new local business and for giving the consumer more choices.
2. GEO-TLDs would enrich the domain name system, would introduce a new element into the DNS, stimulate competition and would give users more choice.
3. ICANN should speed up its procedures and to open the door for the accreditation of new gTLDs as soon as possible and to include GEO-TLDs into this process.
4. Public Policy interests, raised by relevant public institutions, have to be taken into account adequately but should not prevent to move forward

Thank you, Mr. Chairman.

From: Dirk Krischenowski | dotBERLIN [mailto:krischenowski@dotberlin.de]
Gesendet: Dienstag, 11. Dezember 2007 16:38
An: governance@lists.cpsr.org

Subject: [governance] .berlin and ALAC

I coming back to a posting of Michael Leibrandt from Dec 2, where Michael wrote:

"... The parliament of Berlin has voted down the .berlin proposal with a majority decision. Does anybody think that such a local decision should be ignored by an ICANN ALAC? ..."

The part of the statement regarding .berlin is definitely wrong; therefore I'd like to make a counterstatement:

To say it in one sentence: The Parliament of Berlin did not (!) vote .berlin down, it was just a recommendation of a subcommittee which voted against supporting a motion submitted by one of the opposition parties in which the senate is asked to support .berlin.

A little bit more in detail: In the Berlin House of Representatives (Berlin Parliament) the Christian Democrats filed a resolution to support the .berlin TLD. This was based on another resolution that the Christian Democrats and the Social Democrats (ruling coalition) in the German Bundestag (German Parliament). Contrary to the German Bundestag, in the Parliament of Berlin the Christian Democrats are in the opposition. The majority is by a coalition of the Social Democrats and The Left Wing Party (the former Communist Party).

Since the resolution to support .berlin comes from the opposition, it seems to be a natural reflex of the red-red coalition to vote against it. In the case Michael mentioned not the parliament, but a subcommittee voted against support of the CDU motion based on the argument that the city has an official city portal and therefore does not need .berlin. This recommendation will go now to the next level, the main committee. Let's wait and see.

Dirk Krischenowski
Founder and CEO www.dotberlin.de

From: Michael Leibrandt [mailto:michael_leibrandt@web.de]
Gesendet: Sonntag, 23. Dezember 2007 18:40
An: mueller@syr.edu
Cc: governance@lists.cpsr.org

Subject: [governance] GeoTLD

Milton,

Thanks for your message from December 11th.

I could easily turn your question around and ask: Where are the titles of those who want to utilize a famous state or city name (and here I'm not talking about placeholder concepts like .cat, .nyc or .baires) with a technology-based monopoly? Different cultures have developed different approaches regarding the balance between individual freedom and collective rights. I fully respect the position of colleagues around the world, but at the same time I strongly believe that decisions with regional impact should be made based on regional norms and values. Again: The Internet is a global network, but that doesn’t necessarily mean that all decisions have to be made at a global level.

Though the German legal system is not as much case based as the US one, it’s helpful to not only check the wording of the relevant law (especially the German Civil Code), but also look at relevant court decisions. Obviously, we don't have a decision on a Geo-gTLD yet, but a number of interesting high-level decions regarding the use of city names at the second level, e. g. the solingen-info.de and solingen.info cases from September last year. Contrary to some others I do not expect that in a decision on a CityTLD the right of the city and state of Berlin in the name "Berlin" which is protected under German law would be watered down. But the question is, what should ICANN do in the meanwhile? Introduce a CityTLD knowing that there is a serious conflict within the local community? Imagine a situation in which a negative court ruling would come after the market introduction of the new TLD. Who would be held liable?

Should the relevant authorities be allowed to not only not support but also stop a Geo-gTLD proposal that uses (only) the full string of the relevant political-administrative entity? Of course they should! Public policy includes economic policy, and economic policy includes competition policy. Due to the current structure of the DNS, a full CityTLD necessarily establishes a technology-based monopoly, or at least a superior market position. Even dotBerlin admits that a TLD solution is more attractive than using "Berlin" at the second level, including the fact that in Google searches domain names using the CityTLD would get a higher ranking (see www.openplans.org/projects/campaign-for.nyc/advantages-of-the-nyc-tld). The introduction of a .berlin would primarily not effect the domain name market in Brasilia, Canberra or Washington D.C., but the one in Berlin. So it's a decision to be made in Berlin. As long as hundreds of alternatives are already available or could easily be established (using existing TLD; introducing new TLD like .city or .metropole; introducing placeholder CityTLD like .ber, .bln, combined strings like .berlinfriends etc.), I do not see why any authority should allow somebody to gain a superior market position. The introduction of a CityTLD using only the name string does not strengthen competition, but is the end of fair competition.

The legal and economic assessment has to be made at the local level, not in Marina del Rey. The core function of ICANN is that of a technical co-ordination body, and wherever possible, it should stick to that role. ICANN should especially not try to become a global regulator, watching local and regional Domain Name markets, finally judging “oh, in city X a Geo-gTLD may enrich the market, but in city Y it already looks like cut-throat competition...”. Quite similiar to the ccTLD re-delegation process (actually, compared to the use of strange two-letter ISO codes the use of a full geo-string is even more sensitive to the local community), ICANN should follow exernal decisions and restrict itself to a verification of the technical expertise of the future registry.

If you put into question the competence or legitimacy of elected officials and the public authorities regarding the GeoTLD issue - where do you see the role of citizens? Should they have a say regarding the use of the name of the city they live in? As of today, the number of people from Berlin openly supporting the .berlin proposal via the dotBerlin website is somewhat around 330, which equals roughly 0.01% of the Berlin population. Is this an adequate number of supportes? And how many citizens are needed to veto a CityTLD proposal, e. g. by sending emails to ICANN? Number of supporters plus one? 10%, 25% or 50% of the population?

The question of "who speaks for Berlin" is especially important if you follow the concept of GeoTLD being a sponsored TLD. sTLD require not only a sponsored community, but also a sponsoring organization. Actually, it is expected to provide evidence of support from the sponsoring organization. So, in the case of a CityTLD, who is the sponsoring organization? dotBerlin claims that it "represents all Berliners in applying for the .berlin TLD ..." (see www.dotberlin.de/en/about; interestingly nobody in my friends and family circle has ever given this mandate to the company), but my understanding of a sTLD is that registry and sponsoring organization should be seperate entities. Business associations etc. only reflect the position of specific parts of the society, not the local community at-large. So, who can represent a city or state, if not those legitimate authorities that do exactly the same in all other areas? (By the way, I don't think that the sTLD concept applies to GeoTLD, because if you allow everybody to register under a certain TLD, there is no precisely defined sponsored community.)

From my point of view, your question regarding a possible re-naming of a city in N.J. does not fit into this discussion. Many cities can carry the name Berlin without seriously effeting each other, so why should there be a problem? This is not the monopoly situation of a CityTLD using the Berlin string. Same goes for using the string in book titles etc.

Regarding your remark on ALAC: If you subscribe to my model in which, regarding full Geo-gTLD, the ICANN board simply follows decisions made at the local or regional level, than there is no need to talk about ALAC. But if you see it as an internal ICANN process, than you have to answer the question how to integrate the relevant ICANN constituencies, and this does not only include the GNSO, but also the GAC and, of course, the ALAC.

Enjoy the Holiday season,

Michael

Von: Michael Leibrandt [mailto:michael_leibrandt@web.de]
Gesendet: Sonntag, 23. Dezember 2007 18:49
An: krischenowski@dotberlin.de
Cc: governance@lists.cpsr.org

Subject: [governance] GeoTLD

Dirk,

Although you didn't address me directly (!), you were obviously commenting on one of my postings on this list.

Well, with your alternative wording you are actually confirming that, for the time being, in Berlin there is neither support from the public administration nor from the political majority for the .berlin proposal. The corresponing headline of the leading German online magazine on IT issues on 29/11/07 was short and clear: "City Domain .berlin does not get official support from Berlin" ("City-Domain .berlin erhält keine offizielle Berliner Unterstützung"). Of course, things can change - but not in just one direction...

I don't have the slightest problem with giving our international colleagues more details about which political party said what in which committee. I even think that more backstage information about the dotBerlin initiative might help outsiders to better understand and evaluate this business model. But I would request that you follow the same rules you want to impose on others. May I recall that February this year you wrote a letter to the GAC chairman (see www.citytld.com/other-cities.htm) which included the following sentence: "Please find attached to this letter the original text and a courtesy translation of a resolution of the German parliament (Bundestag) from March 7th, 2007, which supports the introduction of GeoTLDs fpr German Cities and regions". We both know that at this point of time the only decision made was to <kick off> a debate on GeoTLD based on a joint <draft> resolution. It took the relevant committees until September (!) to prepare a report and a recommendation. So, to present a decision of the German parliament to the ICANN community even before the substantial debate has started in the relevant committees is... well, I'll leave it to others to find the adequate words for this.

Michael, Berlin

From: Milton L Mueller [mailto:mueller@syr.edu]
Gesendet: Donnerstag, 27. Dezember 2007 07:38
An: Michael Leibrandt
Cc: governance@lists.cpsr.org

Subject: [governance] RE: GeoTLD

Michael,

This dialogue began with my rhetorical question:

"Does the parliament of the German city of Berlin hold global ownership rights over the character string "berlin?" If so, let me see the title deed."

You replied:

> I could easily turn your question around and ask: Where are the titles of those who want to utilize a famous state or city name

Ah, but that question gets you into trouble. First, because my whole point is that no titles are needed; second, because by resorting to that response you tacitly concede that the Parliament of Berlin has no such title.

The DNS is a global namespace. TLDs are global in effect. It is not a local namespace. If a legitimate business wants to appropriate a string within that global space to run a nonfraudulent, nondeceptive business and there are no conflicts with globally recognized property rights in the string I don't see that the Parliament of Berlin has any legitimate reason to block it.

It might be different if the government of Berlin had developed a proposal for a TLD. But it didn't. And as far as I can tell it doesn't have any plans to develop the resource. It just wants to prevent someone else from using it, in order to assert some kind of power over it. It is not willing to let the people of Berlin decide for themselves by patronizing - or not - the service offering. Frankly, I find this attitude petty. Such developments contribute nothing to the value of the Internet. They just bog it down in an endless series of prior reviews and constraints and regulations.

> ...I strongly believe that decisions with regional impact
> should be made based on regional norms and values. Again: The Internet is
> a global network, but that doesn’t necessarily mean that all decisions
> have to be made at a global level.

All decisions about what TLDs exist _do_ have to be made at the global level. If I thought the effect of this particular instance of pettiness would be confined to Berlin or even to Germany, I would gladly leave the controversy to you and Dirk. But the effect of conceding the authority of a municipality over the global namespace is not confined to Berlin. It means that more control over the DNS namespace is ceded to tens of thousands of other petty authorities, who think that millions of other words in English or a thousand other languages can't be used without their permission.

> But the question is, what should ICANN do in the meanwhile? Introduce a
> CityTLD knowing that there is a serious conflict within the local
> community? Imagine a situation in which a negative court ruling would come
> after the market introduction of the new TLD. Who would be held liable?

Applicants for TLDs would have to take such risks into consideration. ICANN should be completely unconcerned about them. It should have a neutral process for assigning names.

> Public
> policy includes economic policy, and economic policy includes competition
> policy. Due to the current structure of the DNS, a full CityTLD
> necessarily establishes a technology-based monopoly, or at least a

I find the economic reasoning you attempt to use here to be a poorly developed afterthought. Full of too many holes to enumerate and explain here. But let me indicate all too briefly a few of the problems.

If a new TLD assignment confers a monopoly, (a premise that can and will be challenged) then why does a local government have a right to such a monopoly? Is this anything more than a battle over who gets to exploit a monopoly? If so, why not go with the entrepreneur who actually developed a proposal and business plan instead of a second-guessing political authority with no such plans and no energy?

But in fact, a new TLD assignment confers no monopoly. It confers exclusive control over an _empty_ namespace at the hierarchical levels below the TLD. No one has to register in the domain, so there is no market yet that is monopolized. Google searches will not elevate it unless people link to the domains that use .berlin, and you don't get such links unless people find value in the domains. The German market is very well developed and unless the new registry can add value it's by no means obvious where it is going to get lots of new registrations. There are numerous close substitutes. Indeed, you trip all over yourself here, trying to argue simultaneously that a TLD assignment of .berlin is a hugely threatening grant of monopoly power while at the same time claiming that "hundreds of alternatives are already available or could easily be established using existing TLDs."

> The legal and economic assessment has to be made at the local level, not
> in Marina del Rey. The core function of ICANN is that of a technical co-

ICANN decisions are supposed to be made by a globally representative policy development procees, not in Marina del Rey.

> ICANN should especially not try to become a global regulator, watching

But your approach puts ICANN in precisely that position. You simply ask it to delegate regulatory authority to tens of thousands of local governments. Since ICANN by definition already holds (via the DNS root) final authority over what TLDs exist, you now ask it to decide which local authority to listen to, on what issues. And this means, in practice, that GAC becomes the global regulator. You also assume that there will be no conflicting claims among local authorities. A pipe dream! No, your road leads to detailed, petty regulation of every name assignment decision made at virtually every level of DNS.

> If you put into question the competence or legitimacy of elected officials
> and the public authorities regarding the GeoTLD issue - where do you see
> the role of citizens? Should they have a say regarding the use of the name
> of the city they live in?

Let's frame this question more precisely.

Should citizens of Berlin have a say over how their own city managers use the city's name? Yes. Should they be able to prevent counterfeit or fraudulent uses of the name which mislead people into thinking they are dealing with the Berlin city government? Yes.

But should they be able to decide that it is an unacceptable use if I choose to name an ugly little dog "Berlin"? No. Should they be able to censor Internet videos if they make the ugly little dog famous in Berlin, Germany? No. Should they be able to prevent me from naming a restaurant serving German food "Berlin?" No. Should they be able to prevent me from naming a book Berlin? No. You get the picture.

A domain name registry is not the incarnation of the spirit and people of Berlin. It's an operation that points packets to particular nameservers, usually to identify or locate web sites. It's perfectly possible that specialization and expertise in what makes geoTLDs successful would be transferable such that a multinational corp. specializing in geoTLDs develops. Or not. Let the people decide, via their choices.

I live in the city of Syracuse. Syracuse.com was registered by the local newspaper. It didn't need to get the permission of the city. No one cares about that here. Whatever value is associated with that domain Syracuse.com was created by the newspaper company, not by the city government. Syracuse.org was taken by a domainer. It seems to be a link farm for making a few bucks on pay per click. It is a minor speck in the universe as far as Syracusans are concerned. Few are even aware of it. If the city thinks it can do something better with it, it can buy the virtual space from its current assignee. You may say, "we could and should have prevented that." I'd say in all sincerity that the mechanisms required to do that -- government approval and oversight of all domain name registrations -- is a cure far worse than the disease.

From: Suresh Ramasubramanian [mailto:suresh@hserus.net]
Gesendet: Donnerstag, 27. Dezember 2007 07:48
An: governance@lists.cpsr.org; 'Milton L Mueller'; 'Michael Leibrandt'

Subject: RE: [governance] RE: GeoTLD

Milton L Mueller wrote:

> It might be different if the government of Berlin had developed a
> proposal for a TLD. But it didn't. And as far as I can tell it doesn't
> have any plans to develop the resource. It just wants to prevent
> someone else from using it, in order to assert some kind of power over
> it. It is not willing to let the people of Berlin decide for themselves
> by patronizing - or not - the service offering. Frankly, I find this

Well, that opens up the question of how deep down you want to dig before you assert a mandate.

Like a swiss canton where you can poll the entire population to decide where to locate a public toilet or bus station?

Or like a city government elected by the people of berlin, to decide at least some things on their behalf?

If it claims to represent Berlin the city, instead of say the string Berlin as in "Irving Berlin" or "Berliner" for a jelly donut as in JFK's "Ich bin ein Berliner" ..

srs

From: Karl Auerbach [mailto:karl@cavebear.com]
Gesendet: Donnerstag, 27. Dezember 2007 08:20
An: governance@lists.cpsr.org; Milton L Mueller

Subject: Re: [governance] RE: GeoTLD

Milton L Mueller wrote:

> All decisions about what TLDs exist _do_ have to be made at the
> global level.

Not really. (By-the-way, it may be a bit ironic to consider the relative sizes and recognition between the city in which you live, Syracuse, New York, as compared to its classic namesake - between the two, which might have a better claim to TLD status?)

But back to why we do not need a singular global body to make choices about TLDs:

If we accept the proposition that there can be multiple root systems, each with its suite of TLD offerings, then the choice becomes one made by the users of the internet rather than by some singular overlord of names.

As I have described previously, there is nothing in internet technology that prevents multiple roots. In fact the end-to-end principle requires that the possibility exist.

Any root that offers a suite of TLDs would be crazy to offer a suite that does not include the familiar core TLDs - the ones we now get from NTIA/ICANN. Any root that offers something inconsistent with that will shortly find its way into the trash heap of internet failures.

In that way, the folks proposing .berlin could go to various root zone composers and say "Please put us into your root zone", just as they are now asking ICANN to put .berlin into the ICANN/NTIA root zone.

Perhaps they will do it way that ICANN likes - mountains of paper about business plans and payment of big evaluation fees. Perhaps some root zone compositors will be more forthright and simply say "just pay us a percentage of your revenue", other might simply say "we like you, so OK".

That then allows internet users to make the choice whether .berlin floats or sinks - by choosing those root zone providers that offer .berlin, and, of course, buying names in .berlin.

In most of the world a new brand of laundry detergent does not apply to the Worldwide Ministry of Soap for approval. That kind of idea was tried in numerous 5-year plans in the old USSR and nobody has ever said that that was a system that was responsive to user needs.

Rather, a new brand of laundry detergent must fight to build its brand (name recognition) and obtain space on the shelves of stores.

There is no reason why TLD creation must occur using the model of a top-down planned economy (the ICANN method) rather than a competitive economy in which user choice ultimately determines success and failure.

(On the original issue - the elevation of geographic places TLD status - perhaps we ought to take the ENUM idea, but use LAT/LONG coordinates instead - so the domain name 50.30.N.13.25.E.geo - would map to a NAPTR record that could produce URI's relating to Berlin. - I believe that was part of the idea of the .iii proposal that ICANN put on hold in year 2000.)

Such a geographic coordinate based system - or simply nesting cities within their country codes - would certainly make a lot more sense than elevating city names to TLD's - has anybody counted the number of cities named "Los Angeles" that exist around the world. Even my own city of Santa Cruz finds its name replicated a hundredfold and more in Spanish and French names around the world.

--karl--

From: Dirk Krischenowski | dotBERLIN [mailto:krischenowski@dotberlin.de]
Gesendet: Donnerstag, 27. Dezember 2007 09:26
An: governance@lists.cpsr.org; 'Michael Leibrandt'

Subject: [governance] GeoTLD

Michael,

thanks for your extensive thread on the .berlin TLD. It gives all of us more insight on how you see the things. Just let me clairfy a single point: the proposed "whatever" rights in the name Berlin.

"According to leading telecommunication, trademark and other law experts in Germany (Prof. Koenig, Prof. Holznagel, Prof. Hoeren, Prof. Ingerl etc.) the administration of TLDs like .berlin, .solingen or .bayern (Bavaria) by private sector entities or entities of the local Internet community complies with the national legal requirements. Their opinion regarding the particular aspect of name and trademark rights is:

Both, the City and the State Berlin have a right in the name “Berlin” under German laws. These rights can also be enforced as regards the choice of Second-Level-Domains according to former court rulings (e.g. Heidelberg.de). Contrarily, the use of names as TLDs cannot be prevented on the basis of rights to a name, if the TLD is used as a label of geographic origin and provided that the respective local and national governments are offered the opportunity to reserve or block Second-Level-Domains within the TLD-Zone prior to their public allocation (e.g. Senate.berlin, Bundestag.berlin).

A name is only unlawfully arrogated when the interests of its holder are violated. The addressed part of the public therefore would have to assume that there is a direct or indirect connection between the TLD and a certain governmental authority. In contrast, section 12 of the German Civil Code (Bürgerliches Gesetzbuch) does not protect the holder of a name against other uses of this name which do not lead to a confusion of correlation.

TLDs do not indicate the service or web site of an individual. They rather identify respectively constitute name spaces. The relevant part of the public does not expect a governmental administration of TLDs (see .de). As a consequence, a local TLD like .berlin will not lead to a confusion of correlation with regard to the federal capital of Berlin.

The federal capital does not enjoy a legal protection against a dilution of its name that goes beyond the danger of confusion. The German Trade Mark Act (Markengesetz) accepts third partys' – fair – use of city names."

All of you, have a smooth move to 2008

Dirk

From: Michael Froomkin - U.Miami School of Law [mailto:froomkin@law.miami.edu]
Gesendet: Donnerstag, 27. Dezember 2007 17:30
An: governance@lists.cpsr.org; Dirk Krischenowski|dotBERLIN
Cc: 'Michael Leibrandt'

Subject: Re: [governance] GeoTLD

I think it's important to note that this opinion of the German professors (at least as described below) relates to the position under German *domestic* law. It does not, as far as one can tell from the summary, address whether these views and conditions have any applicability outside
Germany.

The opinion of this (US) law professor is that they do not and could not. There are only two sources of law of which I am aware by which they might: cultural property law, and trademark law. Neither provides such rights at the international level. See http://www.law.miami.edu/~froomkin/articles/ccTLDs-TM.pdf for details.

Thus, as far as ICANN is concerned, the question of whether and how to allocate a geographically descriptive TLD is a pure policy issue, not a legal one.

(For what it's worth, I persist in the view that ICANN would be smartest not to even attempt to make these decisions, but rather to allocate the right to choose names to qualified parties, who would then take on the policy and legal burdens of whatever choice they made.)

From: Kleinwächter, Wolfgang [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de]
Gesendet: Donnerstag, 27. Dezember 2007 21:26
An: governance@lists.cpsr.org; Governance Caucus

Subject: AW: [governance] RE: GeoTLD

I enjoy very much the debate on GEO-TLDs and I hope that a lot of ICANN folks are following the exchange of arguments. It is enlightening. If I remember correctly one argument in the debate was that a new GEO-TLD would constitute a "monopoly" and that a city name is a public good which should not fall in the hands of a "private monopoly". I am fully in favour of the concept of the "public ressource" and I am totally against private monopolies. But with regard to the case of ".berlin" this argument is totally misleading.

There was a debate in the local Berlin parliament on the issue in the end of November 2007. The Lord Mayor of Berlin argued that the city council of Berlin will not support ".berlin" because they have to protect their monopoly under "berlin.de". The city council has registered "berlin.de" but has outsorced the management of "berlin.de" in form of a private-public partnership to a private company, a publishing house "Berliner Verlag" which is owned by a British Hedgefonds. The mayor´s argument in the debate was that the Berlin city council would risk a breach of the contract with the Berliner Verlag (which guarantees the "monopoly" to the private publisher) when they would support ".berlin". As a result, the city council could risk to pay a punishment fee of several hundreds of thousands of Euros. The Lord Mayor did not refer to the Berlin Internet community or the Internet users. His main fear was that if the city council does not protect the monopoly position of a private company for "berlin.de" the Berlin Senate risks to loose money. In my view this is bizarre.

We had several Internet workshops in Berlin in 2007 where the .berlin project was discussed among the community, including German ICANN directors and council members, Denic and the local Internet economy and NGOs and civil society. There was even an evening discussions in the Parliamentary Assembly of the German Bundestag where we had several members of the parliament and also a member of the European Parliament which showed an interest in the exchange of arguments. But no representative of the Berlin Senate came to this meetings. There was just ignorance of all the local discussion. In an Hearing in the Berlin Senate, which was organized by the opposition party, nearly all invited experts argued in favour. But the governing coalition said no. The only thing they did - as far as I know - was to initiate a working group in the "Deutsche Städte- und Gemeindetag" (the German assocation of city councils). The working group is working on a report which - as far as I have heard - will take a negative approach to GEO-TLDs.

When I prepared the Rio IGF-workshop on new GEO-TLDs, I discussed the issue with the Städte- und Gemeindetag. I invited them to present their arguments at the IGF-Workshop. The answer was that they do not have travel funds to go to Brazil. I proposed them to put their arguments on paper and I guaranteed them to bring the arguments to the Rio panel. They promised to consider this proposal but nothing happened. I asked three days before the Rio workshop for a short piece of paper with the main counter arguments (in Rio I had about 10 GEO-TLD projects in the panel). But they did not reply to the e-Mail. A representative of the German Internet economy association "eco" participated in the Rio discussion and supported the idea of GEO-TLDs. We had voices from the Internet users and from other affected and concerned constituencies. The German GAC member was sitting in the room, but he was silent. And the local government - which claims to have the only authority to make relevant decisions - was absent. Ignorance? Arrogance? Provincialism? A good case to compare two different governnace models: top down, centralistic and deal making behind closed doors vs. bottom up, decentraliced and open and transparent. Who will win? Let´s wait and see and remember the history and arguments of this debate if me move towards decisions.

Wolfgang

From: Karl Auerbach [mailto:karl@cavebear.com]
Gesendet: Freitag, 28. Dezember 2007 09:42
An: governance@lists.cpsr.org; Avri Doria

Subject: Re: [governance] RE: GeoTLD

Avri Doria wrote:

You ask so many good questions.

As regard your question about root operators following some authority for choice of TLDs:

Imagine if everybody who operates a root system - which ultimately could be every user[*] - did not look to any authority other than his/her/its own perception of self interest. For the vast majority of providers this means going with the herd - which, as we are learning from swarm behavior theories - means that pretty much every provider will offer the TLDs that we all know and love. Those who chose not to provide these will probably fail or, like some divergent religious groups, be quite happy in their splendid isolation.

But, and this is the important part, each provider would be free to add anything else - new and uncommon TLDs - that strikes their fancy.

Why might something strike their fancy? Most likely because the new TLD operator is holding out a handful of cash.

Where is a new TLD going to obtain that cash? Who knows. Maybe it's from some city, like Berlin, that is willing to buy its way in to enough roots that it becomes something that every root operator feels it must carry. Or perhaps it is a part of revenues derived from registry fees or data mining. Who knows. And who cares? (as long as it is not illegal.)

This kind of independent, self interested, decision makings means that we end up with a very nice way for new TLDs to be born, try to grow, and maybe even grow up to be one of the big ones that every root operator feels that it must include in its inventory. The flops will flop and fade, as they should, into obscurity and oblivion.

Even in networking protocols we have that kind of thing - once Novell and IAX/Netware and IBM's SNA ruled the networking landscape. But this idea of TCP, particularly with some boosts from UC Berkeley and companies like FTP Software, Proteon, TGV, Intercon, and Sun came out of the back rooms and knocked the socks off the old champions.

All I am suggesting is two things: 1) that we stop auto-bespattering those who want to try to do things differently (but still within the scope of internet standards) than has been the routine and 2) that we take care to build institutions of internet governance only when there really and truely is a thing that needs the heavy hand of "governance" rather than the less coercive hands of user and provider choice (something we call "free competition") practiced within the scope of broadly accepted civil and legal rules.

You suggested that ICANN might be viewed as a "clearinghouse". I'm having trouble reconciling (pun intended) my sense of that word - a place where transactions are presented and accounts are settled - to the role that ICANN fills: that of making choices among competing allocations. Clearinghouses don't say 'no' to transactions, but ICANN, on the other hand, does seem highly preoccupied with denying people the opportunity to make transactions and investments. So, I don't see the analogy.

You asked a good question about why, if there is nothing that stops this from happening, why it has not.

That's got several answers.

First is that there have been several people and groups who have done such a horribly bad job of it that it has created a broad impression that any and every group that might try it anew will do an equally bad job. (By-the-way, I measure the quality of the job done by looking at the quality with which name query packets are turned into name response packets - to my mind the front-office task of registering and transferring names not where we should be measuring quality, although the practice has been to use that as the sole metric.)

And second is that ICANN has engaged in a kind of warfare upon those who suggest the idea of competing root systems. Indeed, some of ICANN's statements over the years, particularly with regard to New.net, could possibly have been construed as business libel.

Remember the Hush-A-Phone case - http://en.wikipedia.org/wiki/Hush-a-Phone_v._FCC - This was a situation in which some folks invented a plastic hand to focus a speaker's voice into those old carbon microphones found on phones through the 1960's.
That hand also helped prevent others from overhearing.

Anyway, AT&T, along with the FCC swore up and down on a stack of bibles that this entirely passive device - a plastic hand - would cause operators to go deaf, cause telephone repairman to be electrocuted, and otherwise cause the internet of that era, the telephone system, to collapse into a pile of sparking and smoking wires (like computers do in movies.)

That was, of course, patently false - which is what the courts ultimately found (after 26 years). But it does indicate the energy with which entities, including technical ones, like the FCC, will go to protect their status quo.

I may not be a conscious thing, but every generation of technical folks are proud of their creations and often lose perspective when evaluating changes to those creations. So it is not surprising that one of the grumbles that comes out of the IETF rather frequently is that newcomers lack "clue".

And third, we have the presence of the US Government standing behind all of this. That looming presence suggests to any investor that before they can open their doors for business they may have to go to the mat with the largest, richest, and most powerful government on earth.

As a consequence, those who have money to invest have been into a position in which they have to ask whether they want to A) invest into something that will face condemnation, righteous sounding condemnation whether it is right or not, and perhaps the wrath of the US government or B) invest in what they hope will be the next Google.

In other words, ICANN has scared away the investors and investment dollars. Just look at what ICANN did to those 40 groups that paid $50,000 each just to apply for a new TLD and have been strong along now for 7 years. And then, those few that did get through the gauntlet had to endure what amounted to an ICANN run colonoscopy of their business and financial matters (but not their ability to run DNS servers.)

Consequently, even though it is entirely feasible to establish competing root systems, it is not an attractive investment opportunity. The reason that it is shunned is not that there isn't money to be made - there is, lots of it from data mining for commercial and governmental/intelligence purposes, but because those who propose the idea are painted as pariahs and nutjobs.

[*] There was once a system called "Grass Roots" which was a website in which the user could select among the (then) thousands of TLDs, and in cases of conflict, select which among the conflicted offerings. Then a zone file was produced, and a named.conf file, that could be plopped into Bind so that any *nix machine could become a highly personalized root.

--karl--

From: Michael Leibrandt [mailto:michael_leibrandt@web.de]
Gesendet: Samstag, 29. Dezember 2007 23:14
An: mueller@syr.edu
Cc: governance@lists.cpsr.org

Subject: Re: [governance] RE: GeoTLD

Milton,

I don‘t expect you to agree with me - so let's continue, in this wonderful non-diplomatic language. Some brief comments on your response (see ***ML):

This dialogue began with my rhetorical question:

"Does the parliament of the German city of Berlin hold global ownership rights over the character string "berlin?" If so, let me see the title deed."

You replied:

> I could easily turn your question around and ask: Where are the titles of
> those who want to utilize a famous state or city name

Ah, but that question gets you into trouble. First, because my whole point is that no titles are needed; second, because by resorting to that response you tacitly concede that the Parliament of Berlin has no such title.

***ML:
I think that the right in the name does provide this title, because there is more about it than just the issue of "confusion". But taking into account the variety of oppinions it doesn't make much sense to speculate who is right and who is wrong; I expect that finally a court decision will bring clarity regarding the "whatever" rights. Wouldn't be a surprise to see this issue in our Constitutional Court, dealing with the question if it is an unacceptable limitation of occupational freedom if someone is not allowed to run a .berlin, but only a .berli (among many other options). ***

The DNS is a global namespace. TLDs are global in effect. It is not a local namespace. If a legitimate business wants to appropriate a string within that global space to run a nonfraudulent, nondeceptive business and there are no conflicts with globally recognized property rights in the string I don't see that the Parliament of Berlin has any legitimate reason to block it.

It might be different if the government of Berlin had developed a proposal for a TLD. But it didn't. And as far as I can tell it doesn't have any plans to develop the resource. It just wants to prevent someone else from using it, in order to assert some kind of power over it. It is not willing to let the people of Berlin decide for themselves by patronizing - or not - the service offering. Frankly, I find this attitude petty. Such developments contribute nothing to the value of the Internet. They just bog it down in an endless series of prior reviews and constraints and regulations.

***ML:
It is not me who claims .berlin to become a Sponsored TLD. sTLD require "evidence of broad-based support from the sponsored community". English is not my native tongue, but the use of the word "support" seems to indicate a need for positive activity. Remaining silent on something is not support, and opposing something is obviously also not support. It's up to the applicant to provide the neccessary evidence. Looking at one of the worlds best known city names, it would be somewhat strange to introduce it as a sTLD if there is no support from the city of Berlin, no support from the state of Berlin, and no support from the Federal Government of Germany. Plus, if Wolfgangs' information is correct, no support from the German Association of Cities.
I do not share your view that the citizens of Berlin have to remain silent on this issue until the TLD is introduced and they can only make there decision by registering or not. Actually I think that in an open society citizens should have the right to speak up and make themselfs heard whenever they feel a need for doing so.***

> ...I strongly believe that decisions with regional impact
> should be made based on regional norms and values. Again: The Internet is
> a global network, but that doesn’t necessarily mean that all decisions
> have to be made at a global level.

All decisions about what TLDs exist _do_ have to be made at the global level. If I thought the effect of this particular instance of pettiness would be confined to Berlin or even to Germany, I would gladly leave the controversy to you and Dirk. But the effect of conceding the authority of a municipality over the global namespace is not confined to Berlin. It means that more control over the DNS namespace is ceded to tens of thousands of other petty authorities, who think that millions of other words in English or a thousand other languages can't be used without their permission.

***ML:
The formal decision, yes. But as in the ccTLD field, ICANN can and should restrict itself by following the local voice. The whole ccTLD redelegation process is based on the assumption that the local community has the lead. ***

> But the question is, what should ICANN do in the meanwhile? Introduce a
> CityTLD knowing that there is a serious conflict within the local
> community? Imagine a situation in which a negative court ruling would come
> after the market introduction of the new TLD. Who would be held liable?

Applicants for TLDs would have to take such risks into consideration. ICANN should be completely unconcerned about them. It should have a neutral process for assigning names.

***ML:
There is a much bigger risk for users. And what is "neutral process" in the case of a conflict with diverging positions where you finally find yourself on one side or the other?***

> Public
> policy includes economic policy, and economic policy includes competition
> policy. Due to the current structure of the DNS, a full CityTLD
> necessarily establishes a technology-based monopoly, or at least a

I find the economic reasoning you attempt to use here to be a poorly developed afterthought. Full of too many holes to enumerate and explain here.

***ML:
Wow. I will considers to return my masters degree ;-) ***

But let me indicate all too briefly a few of the problems.

If a new TLD assignment confers a monopoly, (a premise that can and will be challenged) then why does a local government have a right to such a monopoly? Is this anything more than a battle over who gets to exploit a monopoly? If so, why not go with the entrepreneur who actually developed a proposal and business plan instead of a second-guessing political authority with no such plans and no energy?

But in fact, a new TLD assignment confers no monopoly. It confers exclusive control over an _empty_ namespace at the hierarchical levels below the TLD. No one has to register in the domain, so there is no market yet that is monopolized.

***ML:
How often can a specific TLD namespace be delegated? If I would hold .syracuse, could you hold it at the same time? The namespace itself is an asset with economic value.***

Google searches will not elevate it unless people link to the domains that use .berlin, and you don't get such links unless people find value in the domains. The German market is very well developed and unless the new registry can add value it's by no means obvious where it is going to get lots of new registrations. There are numerous close substitutes. Indeed, you trip all over yourself here, trying to argue simultaneously that a TLD assignment of .berlin is a hugely threatening grant of monopoly power while at the same time claiming that "hundreds of alternatives are already available or could easily be established using existing TLDs."

***ML:
What I said is that for more consumer choice it is not neccessary to establish such a monoply at the top level, because the second level can offer nearly unlimited choices. Especially in the .berlin discussion it often sounds as if a .berlin would be the only way to fight the (real or perceived) market position of a berlin.de, and this is simply wrong.***

> The legal and economic assessment has to be made at the local level, not
> in Marina del Rey. The core function of ICANN is that of a technical co-

ICANN decisions are supposed to be made by a globally representative policy development procees, not in Marina del Rey.

***ML:
To my knowledge, decisions are finally made by the ICANN Board, prepared by ICANN staff after the globally representative policy development process. Just look at the .xxx case (which I think ended with a wrong decision).***

> ICANN should especially not try to become a global regulator, watching

But your approach puts ICANN in precisely that position. You simply ask it to delegate regulatory authority to tens of thousands of local governments. Since ICANN by definition already holds (via the DNS root) final authority over what TLDs exist, you now ask it to decide which local authority to listen to, on what issues. And this means, in practice, that GAC becomes the global regulator. You also assume that there will be no conflicting claims among local authorities. A pipe dream! No, your road leads to detailed, petty regulation of every name assignment decision made at virtually every level of DNS.

***ML:
Sorry, but I don't think that ICANN has the competence to delegate regulatory authority. The starting point is the authority already existing at the local and regional level, so the question is if to delegate this authority partly to a global body like ICANN. This is the way it works in international cooperation frameworks.
Looking at the history of ccTLD redelegations, the issue of conflicting claims among local authorities is a minor one, usually limited to certain regions of the world. And following local decisions would, e. g. in the case of Berlin, in no way touch the role of the GAC. ***

> If you put into question the competence or legitimacy of elected officials
> and the public authorities regarding the GeoTLD issue - where do you see
> the role of citizens? Should they have a say regarding the use of the name
> of the city they live in?

Let's frame this question more precisely.

Should citizens of Berlin have a say over how their own city managers use the city's name? Yes. Should they be able to prevent counterfeit or fraudulent uses of the name which mislead people into thinking they are dealing with the Berlin city government? Yes.

But should they be able to decide that it is an unacceptable use if I choose to name an ugly little dog "Berlin"? No. Should they be able to censor Internet videos if they make the ugly little dog famous in Berlin, Germany? No. Should they be able to prevent me from naming a restaurant serving German food "Berlin?" No. Should they be able to prevent me from naming a book Berlin? No. You get the picture.

***ML:
I made it very clear already that I do not see a link between the .berlin discussion and the use of the name string in other areas like book titles or city names, so why do you come up again with these examples? I'm not aware of any action by the Berlin authorities regarding the name of dogs, although they have there own dogs...***

A domain name registry is not the incarnation of the spirit and people of Berlin. It's an operation that points packets to particular nameservers, usually to identify or locate web sites. It's perfectly possible that specialization and expertise in what makes geoTLDs successful would be transferable such that a multinational corp. specializing in geoTLDs develops. Or not. Let the people decide, via their choices.

***ML:
Again, regarding this exclusive use of the Berlin name string people should have a say even before it's a "done deal". And in a representative democracy they can do this in a direct or in an indirect way. I strongly believe in the concept of representative democracy, especially when the legal framework also allows a plebiscite to correct a decision made by the political majority. Berliners love plebiscites, as is the case with the shutdown our traditional city airport (something that effects the global aviation community...).***

I live in the city of Syracuse. Syracuse.com was registered by the local newspaper. It didn't need to get the permission of the city. No one cares about that here. Whatever value is associated with that domain Syracuse.com was created by the newspaper company, not by the city government. Syracuse.org was taken by a domainer. It seems to be a link farm for making a few bucks on pay per click. It is a minor speck in the universe as far as Syracusans are concerned. Few are even aware of it. If the city thinks it can do something better with it, it can buy the virtual space from its current assignee. You may say, "we could and should have prevented that." I'd say in all sincerity that the mechanisms required to do that -- government approval and oversight of all domain name registrations -- is a cure far worse than the disease.

***ML:
Did I ever say that the use of a geo-string at the second level should be limited to public authorities? No, to the contrary. Over and over again I made it clear that I want hundreds of berlin.tld run by different people; the more, the better. If a Berlin newspaper wants to run berlin.biz - fine with me. And if going for a TLD solution, allow a variety of placeholder strings that can compete at a level playing field. .nyc and .baires are very wise proposals.***

Michael

From: Michael Leibrandt [mailto:michael_leibrandt@web.de]
Gesendet: Samstag, 29. Dezember 2007 23:35
An: governance@lists.cpsr.org; wolfgang.kleinwaechter@medienkomm.uni-halle.de

Subject: Re: [governance] RE: GeoTLD

Dear Wolfgang,

How can you seriously say that www.berlin.de is a monopoly? You know better than that. At the second level, the number of berlin.TLD using existing and potential new TLD is nearly unlimited. For example, the berlin.biz is obviously for sale (www.berlin.biz); so everyone who wants to compete with berlin.de could do so possibly for a fraction of the costs that come wich the campaign for a new GeoTLD. I would be the first one to openly support proposals like .city, .metropole etc. The challenge is to combine fair competition with more consumer choice, and this can only be done at the second level. Even pro-DotBerlin colleagues admit that once you have introduced one GeoTLD for a specific region, there isn't much room for another GeoTLD for the same region (see e. g. Wolfgang Straub at www.citytld.com/pdf/GeoTLD-300507-comments-werner-staub.pdf; especially footnote no. 6).

Over and over again you refer to workshops etc. in the ICANN and IGF framework which are at least partly initiated by the GeoTLD applicants and take place in fancy locations like Puerto Rico and Rio de Janeiro. At the IGF these events might be useful as information tools, but beside this, what is the added value? The ICANN Board is not hostile towards the GeoTLD concept, so you don‘t need to convince them. The general concept of GeoTLD is also not questioned; we already have .cat and .asia. Finally, individual cases can adequately be discussed only "at home", based on local norms and values and including all relevant local stakeholders. Taking such an issue out of the hands of the local people is what I would call a centralistic top-down approach. And I find it a bit arrogant if you expect public authorities (using taxpayers money) and certain associations (living from membership fees that come from taypayers money) to participate in informal events, even if world-famous Prof. Kleinwächter is the moderator. I‘m sure that all parts of the relevant community will make themself heard at the right time, at the right place, and in the right manner. And if you find the way this issue has been dealt with at the national and local level ignorant, provencialistic and behind-closed-doors-dealmaking (what a statement!), than you obviously live in a different Germany than I do.

Due to tue fact that you‘re not a Berliner: Have you already initiated a .leipzig?

Cheers,

Michael

From: Vittorio Bertola [mailto:vb@bertola.eu]
Gesendet: Sonntag, 30. Dezember 2007 19:57
An: governance@lists.cpsr.org; Milton L Mueller
Cc: Michael Leibrandt

Subject: Re: [governance] RE: GeoTLD

Milton L Mueller ha scritto:
> A domain name registry is not the incarnation of the spirit and
> people of Berlin. It's an operation that points packets to particular
> nameservers, usually to identify or locate web sites.

I'm not qualified to participate in this discussion from a legal standpoint (though I've just discovered that a close friend of mine was a student of one of the German professors that Dirk mentioned in his reply, so it's true that, on the Internet, tout se tient). But while what you say might be true on a theoretical plan, it's really hard to imagine that it can work in practice. Politically speaking, neither the government nor the people of Whatevercity will ever accept the idea that .whatevercity is just a random composition of characters and has no relation to them. At least, not in Europe.

For example:

> It's perfectly
> possible that specialization and expertise in what makes geoTLDs
> successful would be transferable such that a multinational corp.
> specializing in geoTLDs develops.

I can see a significant number of people rallying in protest at the idea that a foreign multinational (= the devil) can exploit their beloved city's name to make money out of it.

I would expect that there should be at least some clear connection between the proposed manager and the intended target community (such as the manager being based in the city, like ccTLD managers are to be based in the country), and possibly also some degree of participation or support by recognized local collective institutions (public and/or private - not necessarily the government, but a credible part of the local community).

Moreover, the fact that there are more than one Berlin may imply that the applicant could be connected to one Berlin or to another one, but it does not necessarily imply that someone who is not credibly connected to any reasonable Berlin should have a chance to get .berlin.

I may agree with you that this is much more complex and weird than pure free market, and that it gives ICANN a lot of maneuvering space (I have purposedly been adding lots of subjective qualifications in this post!), but I suspect that this is also the way that a geoTLD delegation would be expected to work, at least in this part of the world.
--
vb. Vittorio Bertola - vb [a] bertola.eu <--------
--------> finally with a new website at http://bertola.eu/ <--------

From: Dan Krimm [mailto:dan@musicunbound.com]
Gesendet: Sonntag, 30. Dezember 2007 23:03
An: governance@lists.cpsr.org

Subject: Re: [governance] RE: GeoTLD

At 7:56 PM +0100 12/30/07, Vittorio Bertola wrote:
>Milton L Mueller ha scritto:
>> A domain name registry is not the incarnation of the spirit and
>> people of Berlin. It's an operation that points packets to particular
>> nameservers, usually to identify or locate web sites.
>
>I'm not qualified to participate in this discussion from a legal
>standpoint (though I've just discovered that a close friend of mine was
>a student of one of the German professors that Dirk mentioned in his
>reply, so it's true that, on the Internet, tout se tient). But while
>what you say might be true on a theoretical plan, it's really hard to
>imagine that it can work in practice. Politically speaking, neither the
>government nor the people of Whatevercity will ever accept the idea that
>.whatevercity is just a random composition of characters and has no
>relation to them. At least, not in Europe.

I don't understand why "politically speaking" this needs to be an issue, except that whoever governs the operation of registries (i.e., ICANN) allows it to be an issue.

If there are multiple cities around the world that might lay claim to using a geoTLD (say, .stratford which has two prominent cities in North America -- in Ontario, Canada and Connecticut, USA -- both of which honor the theatrical tradition of the "original" in UK, and all of which would seem to have a legitimate claim on being able to use such a TLD, but perhaps not on an exclusive basis), then why shouldn't such a registry be *required* to accept all comers who want to set up 2LDs on nondiscriminatory terms?

Wouldn't that resolve the conflict, by removing the strictly exclusive dynamics of control over a TLD?

As long as ICANN is going to hold (and delegate/subcontract) monopoly authority over gTLDs, it should at least use that clear monopoly power to create circumstances where such conflicts evaporate wherever possible.

And peculiarly enough, monopoly power can be used to mandate nondiscriminatory openness in the operation of a communications platform, in a logical dynamic not entirely unlike the GPL for example (i.e., "copyleft").

It's not as if ICANN is overseeing a "free" market. Once ICANN is there to govern the TLD market as a fairly absolute authority, ICANN needs to recognize that the simple fact of its authority trumps the freedom of the market, and everything that follows in the market is a direct result of ICANN policy (including "lack of policy" which is actually an *affirmative* policy in its own right -- "deregulation" is not "nonregulation" and it is important to recognize this distinction very clearly in policy decisions).

All markets are creatures of regulatory policy, and the current gTLD market is no exception. This whole geoTLD dispute arises because ICANN specifically and intentionally allows registries to determine their own (potentially discriminatory) policies toward 2LDs, and enforces any abuse of such delegated monopoly power with ICANN's own monopoly power.

If ICANN would use its monopoly authority over gTLDs to *require* those registries to be *nondiscriminatory* in their operation, it seems to me there would be no problem here. The geoTLD conflicts (and other "brand-related" conflicts) are a direct result of ICANN allowing a registry to exclude a legitimate 2LD operator in their TLD directory.

Note: If, conversely, multiple TLD operators had to compete in a genuinely free market, the ones that had the most nondiscriminatory policies would tend to win out since they could capture all the 2LDs that the restrictive registries would exclude, and thus the nondiscriminatory registries would be the logical choice for root. This is much like the argument that "net neutrality" of information emerges naturally out of a last-mile network market that is shaped by strict regulatory mandates for nondiscriminatory access by third-party devices, applications, services and networks.

Such open access regulation is necessary in the case of "natural monopolies" (with high barriers to entry and substantial economies of scale) such as last-mile telecommunications services, because deregulation of last-mile oligopolies tends to yield a highly bottlenecked information market following after the bottlenecks that naturally emerge in the information network platform. In such cases, you cannot have a "free market" in both the info-network market and the information market itself.

But where the info-network market has no natural tendencies toward monopoly (which would seem to be the case with TLD registries in the absence of an ICANN), a genuinely free info-network market should yield a free information market.

So, as long as ICANN maintains a monopoly authority over the operation of gTLDs and restricts TLD operation to a single monopoly operator per gTLD, then it makes a lot of sense for ICANN to explicitly require nondiscriminatory policy for those registries in the registry agreements, which could go a long way toward removing the political problems that emerge from the establishment by registries of exclusive policies with regard to 2LDs.

Dan

April 2007 - Discussion between former German GAC representative Michael Leibrandt and Internet Governance Forum IGF Special Advisor Wolfgang Kleinwächter

From: Michael Leibrandt [mailto:michael_leibrandt at web.de] Gesendet: Do 05.04.2007 09:10 An: LMcKnigh at syr.edu; Mueller at syr.edu; expression at ipjustice.org; goldstein.david at yahoo.com.au; governance at lists.cpsr.org; Wolfgang Kleinwächter

Subject: Re: [governance] ICANN Board Vote Signals Era of Censorship in Domain Names

Wolfgang and all,

Besides the fact that I'm really getting tired of this "good people – bad governments" nonsens, one important correction to what has been said regarding the .berlin situation:

The decision of the German Parlimanent clearly points out that only those TLD initiatives should be supported by the Government that are "carried or supported" by the relevant public authorities. Therefore a) the decision of the German Parliament is fully in line with the new GAC gTLD Principles and b) there is no contradiction at all between the different "layers" of public authority. So I don't see why ICANN should have a problem to take a decision, unless it would start to question internal decision making processes at the national level - something most us wouldn't like to see, right?

Finally to all people outside Germany: Yes, even in my country every public authority has to act according to the existing legal framework. Those who claim that specific (local) Government action is wrong can always go to law. So there is actually no real need for conspiracy theories and especially no reason to mention this in the context of "censorship" (Wolfgang, at least you should know what censorship really means).

Michael, Berlin

From: Wolfgang Kleinwächter [mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de] Sent: Thursday, April 05, 2007 3:11 AM To: Michael Leibrandt; LMcKnigh at syr.edu; Mueller at syr.edu; expression at ipjustice.org; goldstein.david at yahoo.com.au; governance at lists.cpsr.org

Subject: AW: [governance] ICANN Board Vote Signals Era of Censorship in Domain Names

Michael,

the question is not "good people vs. bad government", the question is the procedure: Who takes what kind of decision and how a policy development and decision making process is organized bottom up where governments are an integrated part in the multilayer multiplayer mechanism. If ICANN does not take content related decisions but content related decisions had to be made by somebody else the question is who makes this deciion? One government? All governments? Private Sector by market mechanism? Civil society? Or a - as I propose - a new not yet existing hybrid body which includes all stakeholders and developes a innovative procedure how to deal with such kind of controversial cases.

And with regard to censorship: Yes I know what it is and I know also how to bypass this and to undermine it. In the long run even with draconian actions, censorship doesn-t work. In the .xxx case I did not follow the line and saying that this is censorship by ICANN. What I said is that the unclarity of the procedural environment opens the door for a new kind of global censorship. ICANN needs more guidance, help, support and protection not to be pulled into such a process.

One additional point in the GAC-ICANN communication with regard to .xxx is the legal status of an advice according to ICANNs bylaws. Article 11, Section 2, para 1 says " i. The Governmental Advisory Committee may put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies. j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. k. If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities."

In the joint GAC-ICANN meeting it was unclear whether the Wellington letter and its follow up is a "comment" or "advice". It was said that some governments have "strong concerns", others have "less concerns" and some are "neutral". What is this? A "comment"? A "receommendation"? An "advice"?

For me the case makes the urgent need visible to reform the GAC. To come up with some internal GAC decision making procedures is a priority. It is unfair from the GAC to say "some of our members have strong concerns and now you have to decide on an issue which is not coverend by your narrow technical mandate".

Wolfgang