[governance] RE: GeoTLD

[Dan Krimm]

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
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