July 1st, 2014 VIA EMAIL ([email protected], [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; and [email protected]) Economist Intelligence Unit Dr. Steve Crocker, Chairman of the ICANN Board; Fadi Chehadé, ICANN President & CEO; Susana Bennett, ICANN COO; Akram Attallah, ICANN President of Generic Domains Division; Christine Willett, ICANN Vice-President of gTLD Operations; Cherine Chalaby, ICANN Chair of the New gTLD Committee; Heather Dryden, ICANN Chair of Government Advisory Committee; Cyrus Namazi, ICANN Vice-President of DNS Engagement; Chris LaHatte, ICANN Ombudsmann; and John Jeffrey, ICANN General Counsel Internet Corporation of Assigned Names and Numbers (ICANN) 12025 E Waterfront Dr, Suite 300, Los Angeles, CA 90094 Economist Intelligence Unit (EIU) 20 Cabot Square, London, E14 4QW, United Kingdom Re: DotMusic and other Relevant, Non-Negligible Opposition to .music LLC’s Community Application (ID: 1-959-510461) based on Discrimination and Lack of Enhanced Safeguards Dear Economist Intelligence Unit, Dr. Crocker, the ICANN Board, GAC Chair, Ombudsman, and General Counsel to ICANN: Please accept this collective letter of opposition submitted by a diverse segment of the global music community and public (the “Opposition”), including the following: 1 https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails:downloadapplication/1659?t:ac=1659 1. DotMusic (A .music community initiative includes support from Music Community Member Organizations (MCMOs) constituting a majority of the global music community.2 DotMusic and our community members are not identified in the .music LLC application (See Appendix A) but have a strong association with the .music string). 2. “Relevant opposition by many groups of non-negligible size” (Appendix B) and “relevant opposition by many groups of negligible size” (See Appendix C) strongly associated with the .music string (These community members are not identified in the .music LLC application but also have a strong association with the .music string). 3. Comments by a significant number of individuals from the general public (See Appendix D) (The public comment number should be considered non-negligible if it is compared to the average number of public comments ICANN receives for an average public comment period from the general public). The Opposition is submitted in accordance with Community Priority Evaluation (CPE) Guidelines which require that “to be taken into account as relevant opposition, such objections or comments must be of a reasoned nature. Sources of opposition that are clearly spurious, unsubstantiated, made for a purpose incompatible with competition objectives, or filed for the purpose of obstruction will not be considered relevant.”3 There are four (4) .music LLC policies that are “incompatible with competition objectives” and have substantial opposition of reasoned nature. In fact these points were brought up to ICANN in many correspondence letters (See Appendix E), re-consideration requests,4 and under the Community Objection filed against .music LLC (See Appendix F) for community objection parts, the additional submission that shows objector(s) as non-negligible and relevant, and response to .music LLC). DotMusic has also filed a Legal Rights Objection against .music LLC. DotMusic will be materially harmed by .music LLC’s exclusive access application (including an anti-competitive eligibility requirement to restrict registrations to only global music community members belonging to organizations formed before 2007). DotMusic has valid trademarks for its .MUSIC™ brand in over 40 countries and territories (in classes relating to domain name registrations) and will be harmed if it is excluded from participation in the string. The .music LLC application states that .music LLC intends to operate under a “sole registrar model” which, if delegated to .music LLC would block DotMusic entirely from participating as a 2 http://music.us/supporters.htm 3 http://newgtlds.icann.org/en/applicants/cpe/guidelines-27sep13-en.pdf 4 https://www.icann.org/resources/pages/reconsideration-2012-02-25-en registrar. Also all of DotMusic’s supporting organizations (constituting an overlapping majority of the music community) would be excluded from the string because they are not part of .music LLC’s defined community. In contrast, .music LLC’s organizations (whose overlapping music community members nearly all of which are represented or have memberships with DotMusic’s Music Community Member Organizations) are included in DotMusic’s community definition. DotMusic’s community definition is broad and encompasses .music LLCs organizations because of the symbiotic and overlapping structure of the music sector i.e. the community. It is also important to reiterate the advice of the Government Advisory Committee (GAC) to ICANN in its most recent GAC London Communique about addressing exclusionary policies concerning “discrimination in restricted TLDs.”5 This would include the discriminatory policies contained in .music LLC’s application. Additionally we oppose three (3) other .music LLC policies: 1) The lack of naming enhanced safeguards to protect intellectual property; 2) the lack of a dedicated music-focused content and use policy that should be aligned with the articulated purpose of the string; and 3) registration policies that contain loopholes that provide the registry the right to have all the registration policies (after evaluation and grading by the Economist Intelligence Unit) “modified and amended” after Community Priority Evaluation or delegation. These policy issues, lack of clarirty, and loopholescompromise transparency and accountability to the global music community, the global public interest and the ICANN process. With full disclosure and transparency, we would like to inform ICANN, the EIU, the public and the global music community that we have reached out to .music LLC in numerous occasions to resolve our differences, and address the concerns presented by .music LLC’s Application. We attempted to form an equal and fair partnership that would represent all music constituents without discrimination and serve the global music community, including joint letters of support. Under the “Remedies Requested” section of the Community Objection, it was communicated (to both the International Chamber of Commerce and .music LLC) that the Community Objection would be withdrawn “if an amicable multi-stakeholder community-based partnership by both parties is made representing the interests of the entire community.” (See Appendix F, Pg. 14) .music LLC rejected any proposal to work together under an equal and fair partnership and rejected any proposal to work together, including submitting a joint letter of support to ICANN. .music LLC’s Application, misappropriates the CPE AGB language and leaves the global music community divided between members of organizations that were formed before 2007 and 5 GAC Advice to the Board, https://gacweb.icann.org/download/attachments/27132037/GAC%20London%20Communique%20FINAL%20.pdf?version =1&modificationDate=1403767077808&api=v2 Pg.3, IV, 2 a, I members of organizations that were formed after 2007. Under the terms of their Application music community members eligible for .music registration will be beholden to pre-2007 organizations and be locked to these pre-2007 organizations without any alternative choice of switching membership to a post-2007 organization. This policy thwarts consumer choice, forward-looking innovation and competition. This policy might also lead to pre-2007 organizations to engage in price increases and gouging since existing members would be “locked in.” A proper investigation must be conducted by ICANN and the EIU in regards to the misrepresentation of .music LLC’s eligibility policies which raise potential anti-trust considerations. The .music LLC community-based .music application was intended to serve a “higher purpose” than the commercial .music applications submitted by Google, Amazon and or those submitted by other portfolio applicants such as Donuts, Famous Four, Radix or Minds & Machines (See .music Applicant Comparison Matrix in Appendix G). The .music LLC Application has circumvented GAC Advice by declining to file a change request to remove exclusionary language from its Application and continues to discriminate against a substantial percentage of legitimate music constituents. This highlights that .music LLC is substantially over-reaching beyond the community. The objective of a community-based application is to serve a “higher purpose” and meet the needs of their corresponding community as stated by Christine Willett, ICANN’s Vice-President of Operations: “[A] community-based application was intended to serve as a higher purpose… it’s a broader purpose than just a commercial purpose.”6 6 The Guardian, http://www.theguardian.com/environment/2014/jun/26/battle-dot-eco-domain-name-internet-green-groups, 26 June 2014 .music LLC’s Registration Policies are “incompatible with competition objectives” and have anti-trust implications 1) Eligibility Criteria: Music Community Member Organizations formed after 2007 are excluded from accreditation to offer .music domain to their legitimate music members. According to .music LLC’s Application, eligibility to offer .music registrations to community members is restricted