WP2 Issues with third draft
I have not had the time to do a de novo review of the current draft from a WP2 perspective, but I have reviewed it for changed in response to the ALAC comments. Following are issues which to the best of my knowledge, I cannot find any appropriate changes. MISSION, CORE VALUES Page 33: In the infamous "ICANN shall have no powers" section (those words since removed), I have been assured that there will be instructions to the lawyers so that the final crafted Bylaw will make it clear that for the purposes of this section, the identifiers themselves will be deemed not to be content. A footnote in the Annex would give me some comfort. Page 35: "Preserve and enhance the neutral and judgment free operation of the DNS...". The ALAC had problems with this clause. At some point I was told the words came directly from the AoC. I cannot find them. What is the rationale and exactly how is ICANN supposed to do this. I can accept ICANN taking no actions to violate this, but the wording is far wider than that. Page 38: "Depending on market mechanisms to promote and sustain a healthy competitive environment in the DNS market.". The original text was preceded by "Where feasible and appropriate". ICANN has a responsibility to uphold the public interest, and to do that it must be able to make value judgements as to when the open market mechanisms are sufficient and when it must intervene. Adding the words "healthy" and "bottom up" are not sufficient to accomplish that. Nowhere: Article 3 of the AoC includes the text "promote competition, consumer trust, and consumer choice in the DNS marketplace". Consumer choice and consumer choice did not make it into the revised Bylaws. The ALAC is not overly concerned with consumer choice, but is very concerned about consumer trust. It must be incorporated. IRP The IRP still includes that ability to address conflicting panel discussions (there was talk about handling these in another way, but I can find no such text). However, the outcomes of the IRP do not allow for a decision to address this kind of IRP. Alan
On 23/11/2015 23:14, Alan Greenberg wrote:
MISSION, CORE VALUES
Page 33: In the infamous "ICANN shall have no powers" section (those words since removed), I have been assured that there will be instructions to the lawyers so that the final crafted Bylaw will make it clear that for the purposes of this section, the identifiers themselves will be deemed not to be content. A footnote in the Annex would give me some comfort.
As I have said before, I have no problem with doing this. In fact, please can we get on and do it, so we don't have to keep hearing this request repeated! -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
I would support this as well, for all the reasons stated. Greg On Mon, Nov 23, 2015 at 7:45 PM, Malcolm Hutty <malcolm@linx.net> wrote:
On 23/11/2015 23:14, Alan Greenberg wrote:
MISSION, CORE VALUES
Page 33: In the infamous "ICANN shall have no powers" section (those words since removed), I have been assured that there will be instructions to the lawyers so that the final crafted Bylaw will make it clear that for the purposes of this section, the identifiers themselves will be deemed not to be content. A footnote in the Annex would give me some comfort.
As I have said before, I have no problem with doing this.
In fact, please can we get on and do it, so we don't have to keep hearing this request repeated!
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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MM: I don’t agree that the domain names are not content. Courts have ruled in multiple jurisdictions that domain names (e.g., Taubmannsucks.com) constitute a protected form of expression. Any statement or actions to the contrary by ICANN would in fact violate the legal rights of third parties. However, I do not mind crafting the bylaws in a way that specifies that domain names are not the kind of content regulation proscribed by this language. Because of conflicts over rights to names and ICANN’s position as policy maker governing how to resolve them, ICANN’s rules do need to take into account the semantic aspects of domain names. Thus, a footnote to the effect that “the prohibition on content regulation of internet services does not prevent ICANN policies from taking into account the semantic meaning of domain names” would be acceptable to me. --MM On Mon, Nov 23, 2015 at 7:45 PM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 23/11/2015 23:14, Alan Greenberg wrote:
MISSION, CORE VALUES
Page 33: In the infamous "ICANN shall have no powers" section (those words since removed), I have been assured that there will be instructions to the lawyers so that the final crafted Bylaw will make it clear that for the purposes of this section, the identifiers themselves will be deemed not to be content. A footnote in the Annex would give me some comfort.
As I have said before, I have no problem with doing this. In fact, please can we get on and do it, so we don't have to keep hearing this request repeated! -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ WP2 mailing list WP2@icann.org<mailto:WP2@icann.org> https://mm.icann.org/mailman/listinfo/wp2
Hi, If courts has been treating it as content, then it may be good to fix that by providing clarification on what the domain is. I don't think because some jurisdiction see it as content should imply that it is correct and that should not be a thing to worry about unless ICANN in her existing contracts/agreement has recognised domain as content. If that is the case then the wording of the contracts has to be looked into as to whether they are subject to policies and then those details/hacks can be proposed through the appropriate PDP. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 24 Nov 2015 06:27, "Mueller, Milton L" <milton@gatech.edu> wrote:
MM: I don’t agree that the domain names are not content. Courts have ruled in multiple jurisdictions that domain names (e.g., Taubmannsucks.com) constitute a protected form of expression. Any statement or actions to the contrary by ICANN would in fact violate the legal rights of third parties.
However, I do not mind crafting the bylaws in a way that specifies that domain names are not the kind of content regulation proscribed by this language. Because of conflicts over rights to names and ICANN’s position as policy maker governing how to resolve them, ICANN’s rules do need to take into account the semantic aspects of domain names. Thus, a footnote to the effect that “the prohibition on content regulation of internet services does not prevent ICANN policies from taking into account the semantic meaning of domain names” would be acceptable to me.
--MM
On Mon, Nov 23, 2015 at 7:45 PM, Malcolm Hutty <malcolm@linx.net> wrote:
On 23/11/2015 23:14, Alan Greenberg wrote:
MISSION, CORE VALUES
Page 33: In the infamous "ICANN shall have no powers" section (those words since removed), I have been assured that there will be instructions to the lawyers so that the final crafted Bylaw will make it clear that for the purposes of this section, the identifiers themselves will be deemed not to be content. A footnote in the Annex would give me some comfort.
As I have said before, I have no problem with doing this.
In fact, please can we get on and do it, so we don't have to keep hearing this request repeated!
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ WP2 mailing list WP2@icann.org https://mm.icann.org/mailman/listinfo/wp2
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participants (5)
-
Alan Greenberg -
Greg Shatan -
Malcolm Hutty -
Mueller, Milton L -
Seun Ojedeji