My Objection Posted To ICANN

Addendum To My Objection

On 07 March 2013, SuperMonopolies took the opportunity to post the following addendum to its earlier post to ICANN to protest about ICANN's official objection procedures — reprinted below in full.

(The original objection is reprinted at right.)

LINK

SuperMonopolies.com Complaint About Objection Procedures

This complaint is an ADDENDUM to the 05 March 2013 comment two days ago on ICANN's forum entitled:
"SuperMonopolies.com Objects To Closed Registries"

LINK

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I welcome this ICANN forum allowing public comment on the proposed closed generic domain extensions, but I also wish to complain about the objection procedures.

ICANN's objection methodology on the issue of closed domain registries is problematic. First, the expense of lodging an "official" individual complaint is prohibitively high and second, the parameters of the Independent Objector's brief are so restricted as to deny what many would say are reasonable grounds for lodging an objection.

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(1) Prohibitive cost of lodging a complaint

The cost of lodging an official objection to a closed registry application appears to be somewhere in the vicinity of €40,000. This is clearly out of reach of all but the most wealthy corporations, if any.

This appears to be the cost of a single string objection (I think) so to object to hundreds of strings could cost millions of euros.

Consider for example the closed .book string application by Amazon which has received numerous objections on this ICANN forum. There is no chance that a small struggling bookseller for example could possibly afford a fee of this magnitude. Particularly since even a successful objection would not necessarily obtain a single domain name for the bookseller, it would merely prevent Amazon from monopolizing that particular domain string.

Not even one of the world's largest corporations seems to be able to justify paying so much for an official objection. Microsoft has released a serious objection to various closed registry applications in a letter to ICANN, but (to my knowledge) has not paid the 40,000 euros or so to lodge an objection. (Note that I have only looked at a small proportion of the hundreds of string applications).

This phrase seems to sum up Microsoft's objection:

"If ICANN allows closed generic TLDs to proceed, the internet will change from its current fluid form to an assortment of “walled gardens.” This privatization of the internet does not benefit consumers. Consumers who are searching for songs, books, blogs, apps, insurance, or jewelry want choice, not solely the product or service of a single company."

Russell Pangborn
Assistant General Counsel — Trademarks, Microsoft Corporation

LINK

As stated, the total cost of an objection would probably amount to around 40,000 euros. An objection would be overseen by the International Chamber of Commerce whose fee structure is described in these excerpts via the ICANN website:

"The non-refundable amount for the administration of proceedings pursuant to the New gTLD Dispute Resolution Procedure is €5,000.

"The administrative expenses shall, normally, not exceed €12,000 for one expert panel proceedings and €17,000 for three expert panel proceedings...

"The fees of each expert shall be calculated on the basis of the time reasonably spent by the expert on the proceedings... The hourly rate shall be €450 unless decided otherwise by the Centre after consultation with the expert and the parties."

LINK (PDF)

My thoughts on the near-impossibility for most objectors to afford ICANN's objection fee is covered in more detail and with appropriate links at SuperMonopolies.com on the Objections page.

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(2) Restrictions on the objection parameters of the Independent Objector

The role of the Independent Objector (IO) at first glance seems like a great initiative by ICANN, however, his role is so restricted as to make certain valid objections difficult or impossible. The IO, Professor Alain Pellet is highly respected, and should have been entrusted with making an assessment as to whether an objection was warranted on any legal or moral grounds whatsoever, not on narrow grounds such as "significant community opposition".

The key oversight ICANN has made regarding the IO's brief is this. Objectors must demonstrate significant community opposition to a proposed closed domain string in their particular "community". However, the issue is a sleeper issue. Not many people are even aware that 1,000 new strings are about to be released. That will change. And far fewer are even aware that a large number of the new domains are being sought as closed registries. That too will change.

Here are the two parameters the IO may consider (only the second is really relevant to the issue of closed registries):

"Limited Public Interest – The applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under international principles of law.

"Community Objection – There is substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted."

LINK

"• For an objection to be successful, the objector must prove that: the community invoked by the objector is a clearly delineated community; and

• Community opposition to the application is substantial; and

• There is a strong association between the community invoked and the applied-for gTLD string; and

• The application creates a likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted."

LINK (PDF)

Indeed, the public is being misled by some current general domain name registrars. A number of these registrars are accepting back-orders for many of the forthcoming domain extensions. However, some of these same extensions are actually subject to closed applications. Hence, many members of the public are likely planning to purchase or bid on certain domains, when in fact they may never be offered for sale or auction in the first place.

So, continuing on with the contentious .book example cited above, someone operating a bookstore in the Bronx for example might be planning to buy Bronx.books. Most reasonable people would agree that a bookseller in the Bronx would have a moral right to own that domain or at least have a chance to bid on it. However, if ICANN permits Amazon to operate the .books extensions as a "walled garden" registry, the Bronx bookseller will be prohibited from owning that domain and hence from competing with Amazon to a certain degree. It will also be more difficult for that bookseller to compete with Amazon on search terms such as "Bronx bookstores" etc, particularly if hypothetically Amazon plans to launch thousands of automatically generated websites like Bronx.books and Birmingham.books.

My point is this. Few booksellers are aware of this issue, though in a few years they will be acutely aware of it if their business comes under threat from a huge book monopoly. So it is difficult at the present moment for anyone to demonstrate "significant community opposition" to an application for a closed .books string.

In five years time I believe it will be easy to demonstrate "significant community opposition" to many of the strings, but by then it will probably be too late.

Likewise in the case of the example I used in my original comment two days ago regarding the .tires string. I and others have made a moral case against such generic words being used by a single entity for their own exclusive use. Yet it seems that for the IO to accept a complaint and then make representations about it to ICANN, the complainant must demonstrate significant opposition within the "clearly delineated community" of the tire industry and its customers. This is over-restrictive, I never considered that there is such a thing as a "clearly delineated community" in the tire industry before. Nor can I currently demonstrate "significant opposition" to the .tires string. To my knowledge, I am the sole objector to the .tires string.

While I am planning to buy a new set of radials this year, I've never felt that I am part of the "tires community." I see no reason why a single person should be excluded from having the IO consider his or her representations about an issue on its pure merits, without restriction.

Charles Darwin would never have been able to demonstrate a clearly delineated community that was opposed to creationism. The principle is the same.

I call on the IO Professor Pellet to make a public comment about the restrictive nature of the parameters he is obliged to work with and whether they should be revised.

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Please consider my complaint about the unnecessarily restrictive nature of official ICANN procedures to object to the proposed closed registries. At the end of the day, ICANN may receive few or no official objections, and few or no objections from the IO, creating a misleading picture painting a lack of opposition on this issue. It is misleading for ICANN to state on its website on the application pages for the various strings that no objections have been received.

(Note that I have only currently looked at about 50 of the many hundreds of applications, so I can't categorically say there have been no objections.)

ICANN should be more precise and factual and state that while they have received no (or few) official paid objections to the proposed strings, they have received a large number of objections in the form of comments. If ICANN reports to the US Department of Commerce that they have received no objections to the proposed "walled garden" domain names that will be misleading.

The issue of closed registries is covered in detail on the SuperMonopolies.com website:

http://www.supermonopolies.com

Dave Tyrer
SuperMonopolies dot com

This complaint will also be published on the website. Some links on the ICANN forum seem to be truncated but should be functional on the website.

My Objection Posted On ICANN Site

In early 2013 ICANN opened up a comment and objections forum on its website about the emerging closed registry controversy. More than 200 objections to closed gTLDs have been received from numerous individuals and SuperMonopolies (reprinted below) — as well as from some of the world's most successful and influential corporations and organizations.

This is the address of the important forum:

http://forum.icann.org/lists/comments-closed-generic-05feb13/

Microsoft has posted its objection to the principle of closed gTLDs saying: "Closed generics are contrary to the public interest and the spirit and letter of ICANN’s principles, and therefore should not be allowed." LINK

Hotel group Accor has objected to .hotel and .hotels etc. LINK

The Authors Guild objected to .book, .read and .author. LINK

The Prudential Insurance Company of America objected to closed applications for .insurance, .retirement and .mutualfunds. LINK

The United States Postal Service which has a registered trademark on the phrase Priority Mail® has objected to the possibility of a closed registry for .mail with the added risk of the domain Priority.mail being used by a third party. LINK

The Japan Association of New Economy (which represents 693 companies) objected to all closed TLD applications. LINK

SuperMonopolies took the opportunity to post a summary of its reasons to object on 05 March — this is reprinted below in full. (An addendum is also reprinted at left.)

SuperMonopolies congratulates ICANN on providing this great opportunity in the public interest and will analyse many of these objections soon.

In particular, Amazon's response will be examined due to the seriousness of their multiple applications for up to 76 "walled garden" registries. (See, for example my analysis on the .Store string page.)

Here are excerpts from Amazon's amazing contribution to the ICANN forum:

"The use of generic terms in the second level have traditionally been allowed by ICANN without question over competition issues. Why should a company be able to own "widget.com" and not ".widget"?

"...Amazon does not understand how the allocation or use of a gTLD or an SLD could have an impact on competition in a relevant market segment."

AIPLA quote This is part of Amazon's attempt to justify their applications for a large number of closed gTLDs. Who do they expect to believe them — The general public? ICANN? The US Department of Commerce?

Amazon's amazing claim contrasts with statements by Jeffrey I.D. Lewis, President of the American Intellectual Property Law Association (AIPLA) who speaks with authority about the "market advantages from control of the gTLD" among other things.

Here is this AIPLA opinion in more detail:

"If these applications are granted, no one other than the applicant and its chosen designees will be able to register second-level domain names in the TLD, leaving the applicant free to exclude competitors and exploit the generic TLD for its sole benefit. The owner of the registry will be positioned to gain advantage in direct navigation and online search; may become uniquely associated with the category of products it offers through its association with the relevant domain; may be able to prevent substantially similar TLDs in the future; and will likely obtain a perpetual monopoly in the online space since the ICANN registry agreements permit unlimited automatic renewals. This combination of market advantages from control of the gTLD could create significant barriers to entry for others in the industry, which would ultimately harm the interests of consumers and the general public."

The AIPLA represents 15,000 members.

AMAZON LINK: Public Comment on “Open” v. “Closed” Registry Models Lorna Gradden .am

AIPLA LINK: Comments on Closed Generic gTLD Applications

Here is the link to the SuperMonopolies forum objection:

LINK:

http://forum.icann.org/lists/comments-closed-generic-05feb13/msg00070.html

And the link to the Adddendum:

LINK:

http://forum.icann.org/lists/comments-closed-generic-05feb13/msg00157.html

SuperMonopolies.com Objects To Closed Registries

I object to all the closed registry applications for new generic top level domains (gTLDs) being examined by ICANN such as .shop, .store, .news, .beauty, .tires, .insurance and all the rest.

These words are the common heritage of all people and should not be commandeered for the exclusive advantage of the world's largest corporations. There is a real risk that the anti-competitive ownership of these immensely valuable domain strings will lead to the rise of global super monopolies.

Right at a time when the internet is undergoing massive growth in e-commerce, it is critical that the new domains be allocated as fairly as is humanly possible, for the benefit of all people, particularly the disadvantaged.

Consider this excerpt from FrontPageIndia.com by Professor Madabhushi Sridhar:

"If developed world is given a chance to grab the usage of common heritage excluding others based on the criterion of $185,000 fee, the developing world is put to serious disadvantage and will further deepen the digital divide creating a new low of inequalities.

"It is an anti-competitive practice, unnatural and even immoral. Such monopolization of words generic in nature is antithesis of globalization and openness of world business beyond boundaries. It even amounts to colonization of Internet, which whole democratic world needs to oppose tooth and nail."

LINK

Instead, many of the world's largest corporations (for example Bridgestone — the market leader in the tire industry — an applicant for a closed .tires registry) are seeking to own the key word in their industry to further their market advantage and simultaneously block competition.

Amazon is seeking to control the .shop, .store and numerous other sales related domain extensions — all the best retail names. L'Oreal is seeking exclusive ownership of all the .beauty domains. There are many more cases of large corporations in various niches seeking to carve up the web into "walled garden" private internets.

Consider this March 2013 report in The Australian newspaper which states:

"National Australia Bank's latest Online Retail Sales Index showed online sales grew to $13 billion over the 12 months to the end of January, up 27 per cent at a time when overall retail sales grew by just 0.4 per cent."

LINK

The report is just one example among many of how supremely important the web is becoming in terms of global economics and trade. Traditional business is at a near standstill, while online commerce is soaring dramatically. It's clear to see that the fairness of the domain name system and its equitable disbursement is a key part of the world's economic trajectory.

Maintaining an open and balanced internet is clearly of vital importance to the coming century of internet e-commerce.

With this in mind, it is fundamentally important that registry and registrar functions should be clearly separated. ICANN should move decisively to correct this oversight.

ICANN's key commitment with the US Department of Commerce (DOC) is completely contradicted by some of the closed registry applications, for example, that of Bridgestone, which is already the world's largest tire company.

Here is an edited excerpt from ICANN's key commitments with DOC:

"3. This document affirms key commitments by DOC and ICANN, including commitments to: ...(c) promote competition, consumer trust, and consumer choice in the DNS marketplace..."

(NOTE: DNS = domain name system)

LINK

And here is an excerpt from Bridgestone's contradictory closed registry application for the .tires string:

"...the .tires gTLD registry will be operated in a centralised manner with a restrictive registration policy. Registration of domain names will only be available to BATO (Bridgestone)... ...the proposed new gTLD is not intended to instigate competition and consumer choice at the level of registration of domain names among prospective registrants."

LINK

Such applications completely and diametrically contradict ICANN policies.

Similarly, ICANN's own website states:

"ICANN developed the New generic Top-Level Domain Program to increase competition and choice by introducing new gTLDs into the Internet’s addressing system."

LINK

Again, this is totally contradicted by many applications such as this Amazon one for the .store string:

".STORE will be a single entity registry, with all domains registered to Amazon for use in pursuit of Amazon’s business goals. There will be no re-sellers in .STORE and there will be no market in .STORE domains. Amazon will strictly control the use of .STORE domains."

LINK

quote about tires If Bridgestone wins the .tires domain registry, then their commercial rivals will be expressly prohibited from owning Goodyear.tires, Dunlop.tires, Toyo.tires, Pirelli.tires or Yokohama.tires. Equally important, your local mechanic down the road will be prohibited from owning Joes.tires or WestSide.tires. Bridgestone will then be able to leverage sophisticated marketing to "own" the expression ".tires" with imaginative advertising the like of which we have never before seen.

I further object to all so-called "open" generic word applications where more than one domain is being claimed (aside from the applicant's own brand name).

In narrow niche industries, 90 per cent of the value of the domain names in those niches may lie in as few as 10 or 20 names. Some applications state that they will operate "open" registries, but they also state or imply that they will retain a "small number" of domains for their own use.

This leads to the real risk of de-facto or virtual closed registries, though technically they are "open".

To continue with the same example, if a tire company with a hypothetical open application wins the .tires string, and then takes control over the domains: car.tires, truck.tires, aviation.tires, buy.tires, auto.tires, safety.tires, maintenance.tires, tractor.tires, suv.tires, farm.tires, Detroit.tires and Malibu.tires etc, i.e. a "small number" — then what remains are purely and simply "leftovers". The successful tire company would still enjoy a powerful domain monopoly.

The winning registrar effectively operates a closed registry, since they own 90 per cent of the best names as measured by "value" (however that is determined). With the best names taken and deployed, only "leftovers" would remain for all other tire companies.

Please consider my objection to closed (and de-facto closed) registries for generic domain strings for the sake of the internet and the implications for the economic well-being of the global economy. I have explored these issues in greater detail on the SuperMonopolies.com website:

http://www.supermonopolies.com

I have also signed and recommend the important online petition at Change.org titled: ICANN: Stop Corporate Takeover of New Internet Names:

Dave Tyrer
SuperMonopolies dot com

This objection will also be published on the website.

SuperMonopolies.com — A hypothetical analysis of the new top level domain names — coming in 2013-14.

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