Comments on Proposal to classify TLDs as either "open" or "closed"

["Antony Van Couvering" <avc@interport.net>]

Dear ICANN,

The idea of classifying TLDs as either "open" or "closed" is likely to cause
confusion without producing any offsetting benefits.  Moreover, as a policy
question it would be better sent to the DNSO for consideration, especially
as it will, if adopted, have grave consequences for several of the DNSO
consituencies.  The IATLD stated some of its objections to this distinction
in its comments on the WIPO report, which I have appended below as part of
this comment.  Since the ICANN Board is considering the initiative
separately, we welcome the chance to summarize opposition to this
ill-considered idea.

Surely ICANN wants to encourage due process and open decision-making.  But
the fact is that most TLDs -- who would be asked, at great expense, to deal
with the fallout of such an initiative -- weren't consulted by WIPO and have
not been consulted by ICANN either.   Outside of any argument on the merits
of the open v. closed distinction, the IATLD believes that ICANN's own
framework for policy decision-making demands that such a policy be
formulated within the DNSO.

Beyond that, many TLDs, including those who are members of the IATLD,
believe that the open v. closed distinction is spurious, dangerous, and
extortionate.

In its conception it is:

*Dangerous to stability of the root - you will be asking ccTLD
administrators, and in some cases governments, to implement changes that may
require substantial reworking on their part, and may even be illegal (e.g.,
what about EU anti-trust rules?).  What if some refuse?  What is the
sanction?

*Dangerous to ICANN - What is ICANN going to do when a "closed" TLD starts
taking registrations from "foreigners" (whatever that can possibly mean in
this context).  What is the sanction?  If ICANN sets up rules and then lacks
the will or the means to enforce them, it will become weakened and
superfluous.

*Anti-competitive - What is needed are more gTLDs to compete with
COM/NET/ORG.  Let us not supply yet another reason for delay by muddying the
issue with the claim that ccTLDs, whatever their policies, are real
competition for gTLDs.

*Unfair - the ccTLDs were not consulted on this, and there seems to be no
process in place to do so.  This is precisely the reason the IATLD is
committed to retaining RFC 1591 *unless* a proper framework for change,
constructed with due process, is implemented.

In its application it will be :

*Expensive - an interface to the WIPO system will not be cheap; and
*Extortionate - ccTLDs will have a choice of being "open" and without
rights, or "closed" and without revenue.

We urge the ICANN Board to reject this initiative.  Even if the ICANN Board
believes that it has merit, it should be sent to the DNSO for consideration,
not decided by the ICANN Board before the DNSO has a chance to meet.

Sincerely,

Antony Van Couvering
President, IATLD


***************** Begin IATLD Comments on WIPO RFC-3
**************************************

To:  The World Intellectual Property Organization
From: Antony Van Couvering, President, International Association of
Top-Level Domains
Date: March 19, 1999
Title: Comments on WIPO RFC-3 from the IATLD

SUMMARY
The IATLD finds significant flaws in the WIPO RFC-3 assumptions,
definitions, procedures, and policies, and will recommend to its members and
supporters to refuse to go along with these recommendations until
appropriate changes are made.  We regret that WIPO neglected to consult with
TLD administrators before recommending that they implement procedures that
are onerous, unfair, and often open-ended.

BACKGROUND
The International Association of Top-Level Domains (IATLD) consists of 15
member ccTLDs and 55 supporting ccTLDs.  It was founded to support the
authority of RFC 1591, the Internet document under which all TLDs operate
today, and has functioned as a trade and lobbying organization.  Our mission
is to make sure that any changes to the groundrules under which TLDs operate
should be made with due process and the consent of those entities who will
be affected by any change.  The proposed WIPO rules fall under that remit.

The ccTLDs which comprise the IATLD's members and supporters operate under a
wide variety of policies and rules, and thus there is no particular
commercial or procedural model recommended by the IATLD.  The commonality of
the IATLD's consistituency is that they are all ccTLDs from the developing
world.

The IATLD members are:
.CC - Cocos & Keeling Islands
.DO - Dominican Republic
.GG - Guernsey
.GS - South Georgia and Sandwich Islands
.JE - Jersey
.KY - Cayman Islands
.LA - Lao People's Democratic Republic
.MP - Northern Mariana Islands
.MU - Mauritius
.MX - Mexico
.NA - Namibia
.NU - Niue
.PH - Philippines
.TT - Trinidad and Tobago
.VG - Virgin Islands (British)


The TLDs who have explicitly supported the IATLD's position on the authority
of RFC 1591 are:
.AI - Anguilla
.AM - Armenia
.BI - Republic of Burundi
.BO - Bolivia
.BR - Brazil
.CD - Democratic Republic of the Congo
.CG - Republic of the Congo
.CL - Chile
.CN - China
.CR - Costa Rica
.CV - Cape Verde Islands
.DZ - Algeria
.EG - Egypt
.ER - Eritrea
.FK - Falkland Islands (Malvinas)
.GD - Grenada
.GF - French Guiana
.GH - Ghana
.GM - The Gambia
.GP - Guadeloupe
.GS - South Georgia and Sandwich Islands
.GT - Guatemala
.HN - Honduras
.KW - Kuwait
.KZ - Kazakhstan
.LC - Saint Lucia
.LR - Liberia
.LS - Lesotho
.LY - Lybia
.ML - Republic of Mali
.MS - Montserrat
.MT - Malta
.MW - Malawi
.NZ - New Zealand
.PE - Peru
.PG - Papua New Guinea
.PN - Pitcairn
.QA - Qatar
.RW - Republic of Rwanda
.SB - Solomon Islands
.SC - Seychelles
.SG - Singapore
.SV - El Salvador
.TC - Turks and Caicos Islands
.TF - French Southern Territories
.TJ - Tajikistan
.TO - Tonga
.UA - Ukraine
.UG - Uganda
.UY - Uruguay
.UZ - Uzbekistan
.VE - Venezuela
.VU - Vanuatu
.ZW - Zimbabwe


OVERVIEW
The consultative process undertaken by WIPO has been deficient.  Although
WIPO has creditably undertaken to present its results in various fora around
the world, it has neglected to directly contact the TLD administrators who
would be asked to implement its recommendations.  This violates the IATLD's
position that the basis upon which TLDs operate, namely RFC 1591, should not
be changed without due process and consultation.

The WIPO RFC-3 document envisages a world-wide regulatory environment over
TLDs that constitutes a sea-change in how the Internet is run.  The
authority of domain administrators is seriously undermined and limited by
the envisaged procedures and definitions in WIPO RFC-3, and the diversity of
the Internet in different regions thereby threatened for the sake of global
harmonization of domain names and trademark concerns.

In general, the IATLD cannot abide the following:

1. The distinction made between "open" and "closed" TLDs.  This distinction,
which is made without examples, is not tenable when one attempts to
enumerate the "open" vs. "closed" TLDs.

2. The assumption that nation states or territories have an untrammeled
right to operate TLDs.  There is no such right.   RFC 1591 specifically
gives operating authority to the domain administrator of a given TLD.  In
the question of domain delegation, the government does have rights, but they
are not unilateral, and they should be balanced with and against rights of
users, institutions, domain administrators and other intersted parties.

3. The arrogation to WIPO or its processes the authority to change the
business practices of TLDs to suit its purposes, without due process and
without regard to the cost that may be imposed on such TLDs.  That WIPO
would even consider a one-size-fits-all policy for all TLDs indicates to the
IATLD that WIPO has not given due thought to the practical realities of
running a TLD in the developing world.  For instance, a determination by
WIPO that a TLD was "open" could force that TLD to spend significant monies
on implementing WIPO procedures (which, tellingly, are not yet specified),
or change its business model to "closed."

**** The IATLD will recommend to its members and supporters that they refuse
to enter into contracts with ICANN or to implement any WIPO procedures until
such time as WIPO sees fit to consider the particular situation of
developing-world TLDs and especially to consult with TLD administrators,
before recommending rules and procedures that could wreak havoc on some
TLDs*****


SPECIFIC ISSUES
In addition to these overarching problem, the IATLD would like to comment on
some of the assumptions, issues, and recommendations contained in WIPO's
RFC-3.  I will refer to these by paragraph number.

Paragraph 36
WIPO makes a dangerous and unwarranted assumption with regard to the
authority under which ccTLDs operate.  Specifically, RFC-3 states:

"The essential difference between [gTLDs and ccTLDs} is the general
recognition that authority over the use and management of ccTLDs falls
within the sovereign competence of the States to which they relate."

This broad generalization is flawed in several regards:
1. There is no necessary relationship between ccTLDs and sovereign states.
The Internet is a network of private networks.  RFC 1591, under which all
TLDs operate, and subsequent announcements by IANA, recognize the importance
of governmental wishes with regard to delegation of domains (but *not* with
regard to their operation), but does not recognize a "sovereign competence."
2. Some ccTLDs are not associated with any sovereign state.  An example is
Antarctica (.AQ).
3. Some ccTLDs are assigned to regions of disputed sovereignty.  Examples
are Taiwan (.TW) and East Timor (.TP).
4. Some sovereign nations have not been assigned ccTLDs.  An example would
be Palestine.


Further in Paragraph 36, RFC-3 makes another distinction that is not
supported by the facts or indeed by any possible definition:

"WIPO nevertheless believes that the recommendations contained in this
Report are
applicable to all "open" TLDs in which domain names may be registered
without restriction and in which domain names are bought and sold."

It should be noted that this "open" vs. "closed" distinction cannot be
applied with any consistency to ccTLDs, for the following reasons:

1. In no TLD can a name be registered without restriction.  In all cases a
template must be filled in, and in all cases some information must be
provided by the registrant.
2. No TLD buys names.  That much should be apparent.  Nor do they sell them.
Charges by TLDs are for the maintenance of the registry databases.  While
the notion of domain names as property is an ongoing debate, it is not in
the least apparent that any TLD "owns" names that it can sell.  Nor does any
TLD license the right to use a name.
3. An attempt to herd TLDs into either the "open" or "closed" camp violates
the rights of TLDs to set their own policy, and a requirement to implement
expensive WIPO procedures would place an unjustified financial burden on
smaller ccTLDs.  For example, the Suriname domain allows non-Suriname
nationals to register domain names, but it has very few registrations.
Under the RFC-3 distinction, Suriname would presumably be classed as an
"open" domain, and be required to implement the WIPO rules.  The effect
would be to force the Suriname domain to change to a "closed" domain because
the cost of the WIPO rules would be prohibitive.  An attempt to put certain
TLDs in the "open" camp, and others in the "closed" camp, would quickly
reveal the deficiencies of this scheme.

Paragraph 40.
RFC-3 makes another unwarranted assumption, namely that the first-come,
first-served policy used by so many domains (in deference to standard
Internet practices) is responsible for cyberpiracy.  Specifically, RFC-3
states:

"These registration practices have led to instances of registrations that
may be considered to be abusive."

This statement cannot be defended by evidence.  In any case, individuals
registrants are responsible for cyberpiracy, not the registries.
First-come, first-serve has been "best practice" on the Internet for years,
and is used to some extent by all TLDs.

Paragraphs 47-57
The IATLD agrees that registrants must supply correct information.
Misleading information may be in itself sufficient cause for revocation of a
domain.  The information that the WIPO RFC-3 suggests collecting is
universally collected by every registry in operation and is uncontroversial.

Paragraph 68
It is to be expected that most registries, in their own commercial interest,
will register domain names for limited periods of time.  It is a matter of
speculation, however, to what extent a payment-in-advance policy would
affect cyberpiracy.  On the other hand, the business impact on a registry
might be severe, for instance in places where credit card transactions are
not common.  It is unacceptable for WIPO to presume to dictate business
practices to a registry, especially when the benefits of their diktat are
unclear.

Paragraph 103
The "portal" system is a canard that should be stopped in its tracks.  While
a shared web page used by business operating under the same name may be
undertaken in a co-operative spirit, and this behavior in fact should be
encouraged, it should be noted that a web page is only part of the Internet.
Email, ftp and other Internet protocols are unaffected by portal-page
arrangements.  Essentially, portal-pages only work if a domain is unused for
other purposes, and thus their adoption in any official or widespread way
would only lead to a proliferation of useless domains.

Paragraph 122, part iii
Once again, the distinction between "open" and "closed" TLDs does not bear
much scrutiny.  As soon as an enumeration is conducted of which TLDs might
be "open", and which "closed", the cracks in this unworkable construct will
be exposed.

Paragraph 141
Once again, the unhelpful distinction between "open" and "closed" TLDs is
used.

Paragraph 145
The coupling of the specious "open" and "closed" TLD distinction, coupled
with a required administrative dispute resolution service, is an unwarranted
usurpation of the authority of domain administrators, who, better than any
others, understand the local laws and customs under which it operates.
Apparently WIPO has seen fit to significantly impair, undermine, and limit
the authority of regularly delegated domain authorities without bothering to
contact them as to their opinions in the matter.  While RFC-3's suggestions
may have merit, they must be implemented with the TLDs in a manner that
assures due process.  Neglecting to even inform them of these intended
changes cannot by anyone's definition constitute due process.

Paragraph 186
Section i.  WIPO RFC-3 envisages requiring TLD administrators to enforce
determinations of the administrative-dispute resolution resolution policy.
Given that procedures for the policy have not been specified, it cannot be
clear to TLD administrators what they are agreeing to.  If TLD
administrators are to be required to adhere to unpublished standards, they
may equally be required to enforce other, as-yet-unannounced policies.  An
open-ended authority of this nature is unacceptable.
Section ii.  WIPO RFC-3 expects registration authorities to enter into a
uniform contract with end-registrants without reference to local laws.
Section iii. WIPO RFC-3 expects every TLD to have a website.  Many do not.
TLD administrators should not be forced to implement measures simply to
provide notice for WIPO's concerns.  In addition, there are many areas where
very few people have any access to websites, although they may have access
to email.  Therefore notice on websites cannot be acceptable notice.

Paragraphs 218 - 221
Again, the definition of "open" vs. "closed" TLDs is unfounded and
objectionable.  Further, the WIPO RFC-3 envisages that TLDs will have to
implement a possibly expensive mechanism that certain TLDs may not be able
to afford.  WIPO RFC-3 makes no mention of how TLDs are supposed to pay for
this.  Furthermore, exclusion lists are difficult to administer and tend to
be leaky.  If "Intel" is protected by an automatic mechanism, what about
"Iintel" or "Intell" - the list could go on forever.  If the process is not
automatic, is WIPO RFC-3 suggesting that TLD administrators go over each
application by hand to determine whether a domain name registration could be
similar to a famous mark?


CONCLUSION
While the IATLD lauds WIPO for undertaking an effort to alleviate the
problem of cyberpiracy, which we recognize as a legitimate concern, we
nonetheless cannot support a process that has not included the domain
administrators, who will be responsible for implementing the WIPO
recommendations.  Furthermore, we have serious reservations concerning the
division of TLDs into "open" and "closed", which we believe to be specious,
ill-defined in WIPO RFC-3, and which cannot be applied with any legitimate
consistency.

Respectfully,

Antony Van Couvering
President, IATLD

***************** Begin IATLD Comments on WIPO RFC-3
**************************************