From: Paul Matthews
Received: 24 September 2012

Question 1. Should the New Zealand domain name space be extended to allow registration at the second level, for example yourname.nz?

Yes

Yes, for a number of reasons. There is no need to force companies and individuals to use a restricted set of 2LDs for no reason other than "because that's how we've always done it". The structure of the domain name system is losing relevance in the modern Internet and there is no longer a technical need for such. However as the existing 2LD options will clearly remain, those who choose to not participate in the opening up of the second level will not be significantly disadvantaged. It is also clearly necessary to offer broader options given the explosive growth of the Internet since the original structure and convention was established, and opening up the second level is the logical way to do this. It is also clear that, in time, the top level is likely to be opened up significantly further. When this occurs, New Zealand registrants will have the option of registering at the top level. To ensure the .nz namespace remains relevant, we need to proactively address this by opening the second level now and ensuring ".nz" remains relevant.

Question 2. Are there any other undertakings that the Domain Name Commission should make while developing/implementing the policy?

Yes

I would prefer to see the price-point for 2LD domains expressed as a maximum. As currently worded it commits INZ to never decreasing this cost, however if opening the 2LD results in a significant increase in revenue it may well opt to only collect as much as is needed and reduce the fee. Or alternatively make it clearer that the same cost is the commitment (ie saying "currently $1.25 per domain name per month, but may increase or decrease at the same rate for all domains"). Or something.

Question 3. Should new second level domains be created to cater for particular interest groups, such as .wine.nz or .sport.nz?

No

Snatching what might be perceived as "favourable" 2LDs (on whatever basis) goes against the whole principle of opening up the .nz namespace. Keeping the Internet "Free and uncaptureable" should also apply to the organisation transparently and openly overseeing the namespace. Depriving arbitrary industries from a commercial opportunity based on an arbitrary view of what would be in their interests is a significant departure from policy and is not something the Commission or INZ should indulge in. Assuming the proposal to open the 2LD namespace proceeds, once it has bedded in InternetNZ should seriously consider selling the previously monopolized 2LDs (such as .co.nz and .org.nz) to focus on the top level only. Being responsible for independently and openly operating the .nz namespace while also operating 2LDs on a competitive basis is a conflict of interest (as demonstrated by the suggestion in this question of snatching certain domains before they are released and openly contestable). If the proposal proceeds it should be on the basis that INZ and the Commission will oversee the top level domain (.nz) openly and transparently and not show favour (including to themselves) to any 2LD, otherwise it's an abuse of position. If this is not possible, the proposal should not proceed.

Question 4. Should new moderated second level domains be created to cater for domain names that require special protection, such as .bank.nz?

No

There is currently an open and transparent process for establishing 2LDs. If a domain (such as bank.nz) has not been established already then it's because it hasn't met the tests set out in that process (including perceived need). If the Commission were to start arbitrarily snatching domains it thinks could be abused it opens a slippery slope and removes its ability to act with independent indifference across the namespace. For example, if you were to grab .bank.nz it's possible you could become liable if someone then purchased "mybank.nz" and used that to defraud (on the basis that you were acting as a moderator on domains but hadn't done anything about that one). There is already a process in place around domains at the third level that is working well by all accounts. There is simply no reason to depart from that process.

Question 5. Should the registration of some names such as .com.nz or .gov.nz, be prohibited at the second level to minimise potential confusion? What names, if any, should be prohibited?

Yes

This is reasonable and justifiable, with the caveats as above.

Question 6. Do you agree with the rationale for the Sunrise Period that would enable existing .nz domain name holders first chance to register names at the second level? Why?

Agree

Yes, however the rules as written unnecessarily discriminate against those that register their domains after 30 May 2012 and removes their ability to protect their name and intellectual property. For instance, if an organisation changes its name or a new company is formed following this date, they might lose the right to contest the 2LD domain because someone else might have a more obscure domain. It would appear that the process as laid out would deal with potential abuse, or a small extension would. In the circumstance laid out in the document (that of someone squatting a domain for the purpose of extorting funds from the main domain holder) the process of resolution would identify the situation and award the domain to the legitimate holder. While slightly more work for the Commission, I believe this is far more favourable than shutting out legitimate domain holders by virtue of the date they purchased their 3LD domain.

Question 7. Who should be allowed to register a domain name at the second level when there are competing registrations at the third level?

Answered below in Q8. In short, only those with a third level domain should be able to apply for a 2LD domain during the sunrise period, HOWEVER it should only not be awarded and go into the resolution process if multiple registrations are attempted for the 2LD domain in the sunrise period, NOT just because there are other 3LDs in existence (from registrants who haven't applied for the 2LD by the end of the sunrise period).

Question 8. Assuming only persons with a conflicting third level domain name may apply, how should that conflict be resolved? By consent? Or some other mechanism?

Other (below)

The proposed "consent" process is fine in the first instance, however it would be unreasonable to leave it at that if consent couldn't be gained. The following changes are suggested:

1. The resolution process should only launch where there are competing attempts to purchase a 2LD in the sunrise period. i.e. If an owner of bob.co.nz applies to purchase bob.nz in the sunrise period, and they are the only registrant who applies for that domain, they should get it (irrespective of whether bob.org.nz is owned by another registrant).

2. The alternative (requiring the owner of bob.co.nz to gain the approval of the owner of bob.org.nz, bob.net.nz etc even though they had expressed no interest in purchasing the 2LD during the sunrise period) is unworkable and unreasonable.

3. The consent process should then be invoked as outlined in the consultation papers, however with a finite timeframe on the consent.

4. A Resolution process should then be entered into. This should have a relatively high barrier to entry (to remove nuisance cases and ensure it is cost-neutral). While this represents more work for the Commission, the owners of the 3LD should have the opportunity to put their case as to why they have a legitimate claim the the 2LD domain, similar to the current resolution process, rather than losing all opportunity to register the domain.

5. If any parties don't instigate the resolution process (with prescribed fee) within a certain period of time (say, 3 months) the domain would be released into the wild and treated as any other domain - ie first in, first served.

This is a far fairer process for all parties and won't result in situations where people are unfairly withholding consent with no valid reason. In this case, and in absence of a fair process such as that outlined above, it's likely legitimate owners would take legal action against the Commission and InternetNZ (and possibly the other party) to have their domain released. The commission should ensure there is a relatively inexpensive and quick way of resolving these issues rather than leaving it to the courts.

Question 9. Should the Domain Name Commission consider extending its Dispute Resolution Service for a limited period to cover particular sub-domains when considering whether a name registered at the second level infringes a complainantís rights?

No

While on the face of it this seems reasonable, in practice it is not advisable for the following reasons:

1. There is little technical difference in text on a sub-domain and text on a web page. Assuming the Commission does not intent to intervene when copyright is breached on a web page pointed to by a domain, the same rationale should prevent it intervening in the same circumstances in a subdomain.

2. Focusing only on the third domain is illogical. For instance, the proposal is to intervene if someone had a DNS pointing at kodak.shop.nz but not Kodak.film.shop.nz. There is no technical difference between these two domains and it is arbitrary to intervene on one and not the other.

3. The alternative, intervening if there is a copyright or trademark breach on any part of an entry in a DNS server (which is what we're talking about, realistically) is impractical and represents unprecedented interference in the system by the Commission.

4. There is existing copyright and trademark law which applies to all circumstances of trademark abuse (including both sub-domains and content on pages) and the Commission should not intervene in this manner.

Question 10. Is the approach as outlined in the proposed amended policy in Appendix C appropriate? Why?

No

See answer to Q9 for rationale.

Question 11. Are there any other comments you would like to make relating to this consultation?

I believe the decision to open the second level is a no-brainer - it is necessary to retain relevance (especially in light of competition to .nz and the opening of the top level) as well as providing the option that people desire, and within the .nz namespace. However more work needs to be done considering the ramifications of the proposed process to ensure a fair process and a free and uncaptureable Internet in New Zealand.