---------- Forwarded message ---------- From: Hong Xue <hongxueipr@gmail.com> Date: Sun, Mar 31, 2013 at 5:37 PM Subject: Re: [ALAC] Draft ALAC Statement of PIC DRP To: Alan Greenberg <alan.greenberg@mcgill.ca> Cc: ALAC Working List <alac@atlarge-lists.icann.org> Thanks, Alan. PIC DRP, which modeled on the PDDRP for trademarks, is a flawed system, in which ICANN struggled between its dual roles as the TLD regulator and at the meantime the contractual party with the TLD operators. Although, understandably, ICANN has no regulatory authority except through the contractual relationship with TLD operators, it is not a fix to mix both rules up. As a contractual party, ICANN should enforce the contract without relying the third party's complaint. As a regulator, ICANN should be able to judge whether a breach of commitment occurs without outsourcing the assessment to a DRP proceeding, which is both costly and with high bars. We can only hope that the compliance against new gTLDs' PIC would not be diluted by this new DRP proceedings. Hong On Sun, Mar 31, 2013 at 7:20 AM, Alan Greenberg <alan.greenberg@mcgill.ca>wrote:
Holly had volunteered to look at the Public Interest Commitment (PIC) Dispute Resolution Procedure (DRP) and see if an ALAC statement was required.
Due to time constraints, she could not do this, and Olivier asked my to follow up on it.
I did so, and found that the DRP was, in my mind, not satisfactory. The DRP can be found at http://newgtlds.icann.org/en/applicants/agb/draft-picdrp-15mar13-en.pdf.
The statement can be found at https://community.icann.org/x/pJlwAg and is also reproduced below. It is short, but somewhat harsher than those I would normally draft.
Alan
======================== ALAC Statement on Public Interest Commitments Dispute Resolution Procedure
The ALAC is disappointed in the proposed mechanism for enforcement of the new gTLD Public Interest Commitments.
Although described a dispute resolution procedure, the process was introduce whereby a Public Interest Commitment (PIC) could be "enforced by ICANN" (http://www.icann.org/en/news/public-comment/base-agreement-05feb13-en.htm ).
When announced, many in the community presumed that "enforced" included an ICANN Compliance connection, and that "by ICANN" in fact meant, "by ICANN".
As it stands, the process:
- Requires possibly significant fees, the magnitude of which are currently;
- Requires that the complainant can show measurable harm due to the violation;
- May be filed by ICANN, but there is no obligation to do so.
Since no exception is noted, presumably ICANN could only file an objection if ICANN itself could demonstrate that it was measurable harmed. This sounds like a return to the days when the only sanctions ICANN applied under the RAA were those where ICANN was not being paid.
Using this same standard of language, one could say that "trade-marks are enforced by ICANN" because it has provided the UDRP.
There was much hope in the community that the PIC would go at least part way to recovering from the mistake of not requiring all new gTLD applicants to stand by their application promises once the new TLD is delegated. This hope has not been satisfied.
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-- Professor Dr. Hong Xue Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China -- Professor Dr. Hong Xue Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China