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  • Republican National Committee loses fight over .republican

    1. BY - Jan 07, 2014
    2. Policy & Law
    3. 3 Comments

    RNC loses objection against Demand Media’s application to run .republican top level domain name.

    The Republican National Committee (RNC) has lost a community objection it filed against Demand Media’s application to run the .republican top level domain name.

    The RNC, which uses the domain name gop.com, is behind an application for the .gop domain name.

    This case is really interesting, as panelist Brigitte Stern provided a very detailed analysis of the language of community objections and what the point of these objections is. The analysis hits on an issue that has stood out in community objections: can a group that represents just a part of the overall community to which a domain will be targeted be able kill an application on community grounds?

    In this particular case, the RNC argued it represents the “Republican Community.” But much of the proof it submitted was based on representing the U.S. Republican Party. Stern determined that it had standing to object for the community of the U.S. Republican Party, but not the undelineated overall worldwide republican community.

    The Republican Community is reported by the Objector to have been in existence for 150 years. The Expert is forced to characterize this as an affront to history. Republican communities have existed since ancient times and many countries have been guided by the idea of republicanism throughout their political history. The Objector appears to wrongfully assimilate the history of its institution with that of the idea of republicanism.

    The RNC provided evidence of substantial opposition from the U.S. Republican Party. But should the “substantial opposition” requirement be based on the community the objector represents, or the community at large that will be targeted by the domain? Stern sums up this question well:

    [The panelist] can either consider that “substantial opposition” simply refers to the community which the Objector considers itself as representing (Option A) or that it refers both to this community and to the community to which the new gTLD string is explicitly or implicitly targeted (Option B).

    The Expert will therefore first examine the consequences of Option A. If the substantial opposition referred only to the community in the name of which the opposition is filed, this would render this requirement almost meaningless. Indeed, it would allow almost any small and even a very small community in the world to submit a successful objection if all its members were in agreement.

    …To accept that a small and even very small unanimous community represented by a duly established institution could successfully object to a string virtually applicable to millions of people in the world would defeat the process of validation of the new gTLD strings set up by ICANN.

    Stern obviously believes in option B.

    This is something that has bothered me in community objections. Consider .hotel. The objectors lost, but on the basis that they failed to prove likelihood of material detriment. Yet the objectors only purported to represent hotel owners, not hotel users. Aren’t hotel users part of the community that is targeted by the domain? There are many more hotel customers than hotel owners, so it’s not clear to me how the objectors were able to call the community just themselves.

    That said, with some panelists the objectors are better off arguing they represent only a portion of the community targeted by a domain, but show significant opposition within this portion of the community.

    Consider the community objections filed against .cloud. The Cloud Industry Forum tried to argue there was a clearly delineated community around the “cloud,” but the panelist pointed out that basically everyone in the world would fit into its definition. Had the Cloud Industry Forum said that the community it represented was just made up of on particular part of the community – say, data center operators – it may have qualified as clearly delineated.

    I think just about everyone and anyone falls into the community of strings like hotel, too. I can’t see how there are clearly delineated communities around things that everyone is a part of – health, sport, etc.

3 Comments
  • Andrew,

    Much agreed on the primary argument of the Objector on the GOP having a U.S only distribution/representation/outreach since the GOP strictly represents a community that only has formal boundaries within the United States and is based on U.S citizenship for voting i.e no-one abroad could be a GOP voter if they are not an American citizen.

    However, while we agree on this case I once again have to disagree on your blanket concluding statement pertaining to communities in general. Below I will showcase why some do qualify as clearly delineated.

    The AGB criteria is that the community members have a common interest (i.e nothing to do what community type you are) and formal boundaries. Again I will use “music” as an example since it is the only arena I am quite knowledgeable about.

    If I am an artist I want my music promoted and distributed. If I am a label I want music to be promoted and distributed. If I am a music producer and engineer I want to produce and engineer music that will be promoted and distributed. If I am a music attorney I want to fight piracy and ensure clients music is promoted and distributed in order for artists to be compensated. If I am an instrument store i want to sell instruments that artists could play in order to promote and distribute music or “share” music in a group setting. If I am a music magazine I want to feature articles on musicians (promotion of music). If I am iTunes I want to promote and distribute music. The list goes on and on. The main theme which is engrained in the music community is sharing (distribution and promotion) of music i.e the common interest is universal amongst “a significant portion of the community” as per AGB rules.

    Since I am a proponent for the validity of a strictly delineated music community let me expand on the notion that one organization that is organized in the United States is not solely representative of just the U.S.A but can be international and organized with formal boundaries globally. Outreach needs to be taken into consideration and its members outreach and taken within context of activities. A good example is ICANN. It makes decisions on behalf of the Internet/DNS community and does not require signatures from billions of people to do so. However it is a U.S non for profit.

    In the case of the Amazon objection for .music the objector was a U.S non-for profit representing famous and non-famous U.S independents and Associate members including Apple iTunes, Spotify and many other global brands with global outreach. Some of the indies represent Adele (who is British) and Taylor Swift the two top selling artists in 2012 who are promoted and distributed globally (even on Amazon). Music Labels do NOT operate solely in the United States. They distribute and promote globally. Also iTunes – one of Objector’s members – represents 63% of the GLOBAL market. People buy from the iTunes store from North America, Europe, Asia, South America, Oceania, Africa i.e all continents. Also the Objector’s digital distributors distribute the majority of music found on all digital music stores and are responsible for paying artists/labels compensation when a sale/stream royalty is generated.

    What the .REPUBLICAN panel states can not apply to other strings because the context is different. American companies belonging to an American association can operate globally and can represent interests from well beyond the U.S territory. Music is global whether we like it or not. Adele is British, while her label is American. The list goes on and on.

    Apple iTunes (music downloads with 500 million international buyers and Pandora (music streaming for 80+million) operates globally. While I do agree on the issue of the GOP and Republican party being American with only boundaries within the USA, that argument can not be made with respect to the music-themed objection cases since distribution, promotion and consumption is highly organized using clearly delineated systems which are indeed global. The Internet is the main channel for promotion and distribution (hence the dependence on the DNS for core activities).

    The next issue is one of formal boundaries. The only decentralized system which has no formal boundaries in regards to music is piracy which is not delineated as downloading is anonymous on sites like Piratebay (also note Piratebay’s reliance on the DNS explaining why they are changing domain names continuously to circumvent the law).

    Legal music on the other hand has formal boundaries. Everytime you want to buy a song from iTunes, listen to Pandora radio or stream a song on Spotify you have to create a formal account with those entities and abide to their terms of service. The main reason is to ensure a tracking system to compensate individual song rightsholders. That constitutes formal boundaries. The reason why is because each song streamed or sold is unique since it has different rightsholders attached to it that need to be paid. This is where the clearly delineated systems come in to compensate rightsholders according to royalties (which in many cases are set by government e.g mechanical rate is 9.1c in the U.S per song under 5 mins). Even restaurants or bars playing music have to pay performance rights organizations flat royalties depending on the size of their establishment. This is how delineated and organized the music community is.

    Bottom line is we would not be able to listen to 99% of the music we are listening to without these clearly delineated systems. The community is highly organized and delineated but I will not go through all the systems they use because I think readers get the point.

    Some communities – even if their legal corporate set-up is country-based and represent U.S members – are global in context since their ACTIVITIES are global and their representation creates formal boundaries with a global community which is significant in nature. Per the AGB the number should be taken in “context” not “absolute” numbers. This is how ICANN operates. There is no need to billions to agree on ICANN’s actions. One may discuss that some may have different common interests but the AGB is clear that the passing test pertains to “a significant portion” of the community NOT the “majority” or the “entire” community.

    I disagree with the notion of placing every string and community under the same basket. They are all unique and different. It is a case by case scenario and you can not lump communities and associated strings in the same basket as .REPUBLICAN. This decision is well reasoned in my opinion but I urge that blanket, general statements across all possible communities are not made since some – such as music – do pass the tests with flying colors.

    Happy new year!

    Constantine Roussos
    .MUSIC

    • I agree that the issue of the objector in .Republican only representing a U.S. Party, not global republicanism, does not apply to all other cases.

      What I do think applies – and something I believe we fundamentally disagree on and will never be able to resolve – is that it’s very, very difficult to take a broad term and call it a community.

      For example, you write:

      “Legal music on the other hand has formal boundaries. Everytime you want to buy a song from iTunes, listen to Pandora radio or stream a song on Spotify you have to create a formal account with those entities and abide to their terms of service. The main reason is to ensure a tracking system to compensate individual song rightsholders. That constitutes formal boundaries.”

      This refers to the sale and distribution of copyrighted music. But I think “music” is much bigger than that. It’s instruments. It’s fans. It’s people who sing in the shower in the morning. How does tuba.music fall into a community? Or MyHighSchoolsName.music for the choir? How does rockfan.music fall into the community of “legal music”? “Musician” would be somewhat closer to a community, although I still think it’s a very broad definition.

      Again, I know this is something you and I will never really agree on.

      • Andrew,

        Your point might be taken by some as valid if taken generally but your assessment is not consistent with the Applicant Guidebook and the tests a community needs to pass to qualify under the AGB. As I explained the rules are “a significant portion” of the community (not “entire”), and taken within “context” not “absolute” numbers. I did not say that, the AGB did. The AGB also states that a “balance” of many factors needs to be taken into context.

        The reason we have such a disagreement is that I am following the AGB and you are talking in general by concluding an entire community has to be on board in regards to the common interest (which I still believe directly or indirectly they do ultimately share that common interest and follow strictly delineated music systems quite regularly in our daily lives whether it is directly or indirectly).

        As the AGB loosely describes “community” can be community of interests, particular ethnicity, religious, linguistic or similar community. Beyond the diversity of communities, there are common definitional elements and a community can be defined as a group of individuals who have something in common or a common characteristic (quote by the Independent Objector), or share common values, interests or goals (e.g music community).

        Again the community test relates to “a significant portion” of the community with common interests. This does not mean 100% of the community has to share the interest but I would argue that sharing music (distribution and promotion) is a universal common interest. Fans for starters do share music with other fans (whether it is direct or indirect e.g via Facebook timeline). They share the interest of going to concerts to listen to the music that only reached their ears through the distribution and promotion of music primarily in a commercial clearly delineated manner (i.e where the song rightsholder gets paid).

        Also you mention “musician” as a community. I think you just answered your question by mentioning that. A “musician” by definition is “a person who plays a musical instrument, especially as a profession.” According to the AGB under “Nexus”, the string can be “a short-form or abbreviation of the community.” The word “musician” consists of the word “music” and so “music”(or .MUSIC) can also be considered a short-form or abbreviation of “MUSICian” which makes the community argument even stronger. For example, .COM is short for COMmercial or .ORG is short for ORGanization.

        I disagree on the notion that you make that “music is bigger” than the elements of distribution and promotion because if you remove that common interest the person in the shower would not be singing that song that was “promoted and distributed” to them in the first place. If you take out the common interest of promotion and distribution then you would not have music as we know it today. Most people sing popular songs that have been played on the radio or they have listened to online or somewhere else. How can someone listen to a song if it has not been distributed or promoted?

        There is no way that I buy your argument that “music is bigger than that” i.e the distribution and promotion of music. The culture of music is one of sharing and singing it with others. Songs can not be heard or last the test of time without the critical common interest of distribution and promotion. Maybe a good test for you is to ask yourself how many songs you know that have not been distributed or promoted. Everything is connected in the music community. I would argue it is the most organized community by far in terms of delineated systems. Again the context of the DNS needs to be considered when it comes to music. The music community relies on the DNS for core activities: the distribution and promotion of music. Unfortunately so does the rampant piracy.

        In ICANN AGB’s words, passing the community test is about “context”, “common interests” and “a significant portion.” There is no way anyone can prove hat the music community that distributes and promotes music is not a significant portion of the community or that fans do not use clearly delineated systems to enjoy to music. You as a fan has legally listened to music that was distributed/promoted in a delineated manner where individual song rightsholders are being compensated and you have formed a formal boundary using some sort of service to do so (whether it is directly or indirectly). Like my example in my previous comment, the people going to clubs/bars/restaurants still count since the club/bar/restaurant owners all have to pay a performance right royalty. Whether fans realize it or not formal boundaries have been set, even indirectly. While this might be a commercial aspect of music, it is still a significant portion. No-one can argue that it does not fulfill the “a significant portion” test under the AGB.

        Your argument mandates you include everyone involved in any type of music-related activity in the mix. That is not the test that needs to be passed. It is like arguing ICANN needs a billion signatures from Internet users/registrants to pass resolutions. Again, the test is “a significant portion.” Per your understanding (conveniently shared by others who are in a contention set against community applicants) no-one would ever pass the “community” threshold since showing an “entire” community – not “a significant portion” of a community – is an impossible threshold to meet. But again this is not what the AGB says. If this was the case nothing would get done in the world if decisions required the “entire” community to mutually agree on everything. Follow the AGB.

        I think you would agree with me if you took the AGB community test thresholds into consideration using context not absolute numbers as described in AGB i.e as “a majority of the community” not the entire community.

        Good discussion.

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