[governance] RE: GeoTLD

[Michael Leibrandt]

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):

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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
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