BGC decision of NCSG reconsideration request on TM+50
http://www.icann.org/en/groups/board/governance/reconsideration/recommendati... To cut to the result, the BCG rejected the request to overturn the inclusion of TM+50 into the TMCH. Part of the decision was based on the fact that the original TMCH implementation itself, a result of the STI effort, was deemed (by the GNSO and all of us) to be part of the IMPLEMENTATION of Recommendation 3 of the GNSO new gTLD PDP:
Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law. Examples of these legal rights that are internationally recognized include, but are not limited to, rights defined in the Paris Convention for the Protection of Industry Property (in particular trademark rights), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (in particular freedom of expression rights).
As such, can a change or refinement to this "implementation" be anything other than still just implementation? This is to some extent supported by the minority position that the ALAC took on the STI report, specifically that the ALAC supported some level of TM + service/product being in the TMCH. We also supported common law trademarks in addition to registered trademarks. *IF* the STI had bowed to our wisdom on these issues, both of these would have been in the TMCH design. But the STI did not overall agree, and they did not end up in the design. Similarly, if the TM+50 had been raised during the STI and had won (not very likely in my opinion, just as our pet issues above did not win), then this too would have been part of the default implementation. Which of course now raises an interesting question. Why would these "features" have simply been part of the "implementation" of the TMCH is we had won the arguments in late 2009, but when we considered the TM+50 earlier this year, we forcefully felt that this was clearly policy? The answer is not obvious, and yet it seems to be at the core of the visceral reaction that many of us have on the question of policy vs implementation. I won't pretend that I have the answer to this. But I think that part of understanding it is to recognize that virtually all policy in the gTLD realm leads to implementation. Recent PDPs (and the new PDP process in the Bylaws) allow for an implementation team that helps ensure that the staff designed implementation follows both the word AND the intent of the policy. Indeed, one can consider that all of ICANN spent several years being the "implementation team" supporting the design of the New gTLD process and the AG. I am starting to suspect that as policy takes on a concrete form during implementation, in peoples minds, the arrived at implementation and the original policy became meld together and become inseparable. It is a bit of a scary conclusion, because it means that, in our minds, the line between policy and implementation for any given issue, MOVES over time. On a completely different issue, that of the new desired right of ICANN to change registry agreements without the concurrence of the registries (and outside of Consensus Policy) seems to validate my conclusion. One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy. I admit that much of what I have written here is really stream-of-consciousness (and it is a bit past midnight now!), and I have not fully thought it through, but I felt it important to capture it and I look forward to comments. Alan
On 21 May 2013, at 06:40, Alan Greenberg wrote:
One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.
at least not without another PDP to change the policy. avri
At 21/05/2013 01:35 AM, Avri Doria wrote:
On 21 May 2013, at 06:40, Alan Greenberg wrote:
One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.
at least not without another PDP to change the policy.
avri
So you are saying that something that was implementation several years ago when discussed during the various versions of the AG, is now policy, and moreover, it would require a PDP to change (not just a GNSO policy process but a formal PDP even though it is not a subject for Consensus Policy as per Bylaws Annex A - "If the GNSO is conducting activities that are not intended to result in a Consensus Policy, the Council may act through other processes.") Alan
Irrespective of whether 50+ is policy or implementation, I don't believe the BGC recommendation's interpretation that the "rules of implementation" are solely in the discretion of staff, not subject to the MS participation and supervision, be accurate. Hong On Wed, May 22, 2013 at 2:56 AM, Alan Greenberg <alan.greenberg@mcgill.ca>wrote:
At 21/05/2013 01:35 AM, Avri Doria wrote:
On 21 May 2013, at 06:40, Alan Greenberg wrote:
One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.
at least not without another PDP to change the policy.
avri
So you are saying that something that was implementation several years ago when discussed during the various versions of the AG, is now policy, and moreover, it would require a PDP to change (not just a GNSO policy process but a formal PDP even though it is not a subject for Consensus Policy as per Bylaws Annex A - "If the GNSO is conducting activities that are not intended to result in a Consensus Policy, the Council may act through other processes.")
Alan
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
-- 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
No Alan, that is not what I am saying. I am saying that a Contractual Conditions PDP, made quite a few policy determinations a few years ago, and those should remain unchanged until such time as there is a new PDP. And I am saying that any new implementation must remian in line with the previous PDP until such time as there is a new PDP. avri On 21 May 2013, at 20:56, Alan Greenberg wrote:
At 21/05/2013 01:35 AM, Avri Doria wrote:
On 21 May 2013, at 06:40, Alan Greenberg wrote:
One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.
at least not without another PDP to change the policy.
avri
So you are saying that something that was implementation several years ago when discussed during the various versions of the AG, is now policy, and moreover, it would require a PDP to change (not just a GNSO policy process but a formal PDP even though it is not a subject for Consensus Policy as per Bylaws Annex A - "If the GNSO is conducting activities that are not intended to result in a Consensus Policy, the Council may act through other processes.")
Alan
[Alan] the line between policy and implementation for any given issue, MOVES over time. On a completely different issue, that of the new desired right of ICANN to change registry agreements without the concurrence of the registries (and outside of Consensus Policy) seems to validate my conclusion. One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy. [Hong] These are all interesting and valid points. The "moving" or blurring line between policy and implementation reminds me my comments on PIC-DRP, which is below, although it was not finally accepted in ALAC statement. [Hong] 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] ICANN's claim for "unilateral" right to amend the RA and our colleague's recent paper calling for embracing inner regulator all show that ICANN is kind of suffering from Multiple Personality Disorder (MPD). Does ICANN has any other "legal means", except contractual relation, to rein the other stakeholders? But a contract is supposed concluded between two equal parties. Once ICANN exercise its "regulatory power" in name of implementation or whatever else, it becomes more equal than the other parties. It seems that ICANN needs to choose which way to pursue further--contractual party or regulator? ICANN would face more conflicts and disputes by playing the dual roles simultaneously. Hong On Tue, May 21, 2013 at 12:40 PM, Alan Greenberg <alan.greenberg@mcgill.ca>wrote:
http://www.icann.org/en/groups/board/governance/reconsideration/recommendati...
To cut to the result, the BCG rejected the request to overturn the inclusion of TM+50 into the TMCH.
Part of the decision was based on the fact that the original TMCH implementation itself, a result of the STI effort, was deemed (by the GNSO and all of us) to be part of the IMPLEMENTATION of Recommendation 3 of the GNSO new gTLD PDP:
Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law. Examples of these legal rights that are internationally recognized include, but are not limited to, rights defined in the Paris Convention for the Protection of Industry Property (in particular trademark rights), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (in particular freedom of expression rights).
As such, can a change or refinement to this "implementation" be anything other than still just implementation? This is to some extent supported by the minority position that the ALAC took on the STI report, specifically that the ALAC supported some level of TM + service/product being in the TMCH. We also supported common law trademarks in addition to registered trademarks. *IF* the STI had bowed to our wisdom on these issues, both of these would have been in the TMCH design.
But the STI did not overall agree, and they did not end up in the design.
Similarly, if the TM+50 had been raised during the STI and had won (not very likely in my opinion, just as our pet issues above did not win), then this too would have been part of the default implementation.
Which of course now raises an interesting question.
Why would these "features" have simply been part of the "implementation" of the TMCH is we had won the arguments in late 2009, but when we considered the TM+50 earlier this year, we forcefully felt that this was clearly policy?
The answer is not obvious, and yet it seems to be at the core of the visceral reaction that many of us have on the question of policy vs implementation.
I won't pretend that I have the answer to this. But I think that part of understanding it is to recognize that virtually all policy in the gTLD realm leads to implementation. Recent PDPs (and the new PDP process in the Bylaws) allow for an implementation team that helps ensure that the staff designed implementation follows both the word AND the intent of the policy. Indeed, one can consider that all of ICANN spent several years being the "implementation team" supporting the design of the New gTLD process and the AG.
I am starting to suspect that as policy takes on a concrete form during implementation, in peoples minds, the arrived at implementation and the original policy became meld together and become inseparable. It is a bit of a scary conclusion, because it means that, in our minds, the line between policy and implementation for any given issue, MOVES over time.
On a completely different issue, that of the new desired right of ICANN to change registry agreements without the concurrence of the registries (and outside of Consensus Policy) seems to validate my conclusion. One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.
I admit that much of what I have written here is really stream-of-consciousness (and it is a bit past midnight now!), and I have not fully thought it through, but I felt it important to capture it and I look forward to comments.
Alan
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
-- 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
On 21 May 2013, at 08:32, Hong Xue wrote:
[Hong] ICANN's claim for "unilateral" right to amend the RA and our colleague's recent paper calling for embracing inner regulator all show that ICANN is kind of suffering from Multiple Personality Disorder (MPD). Does ICANN has any other "legal means", except contractual relation, to rein the other stakeholders? But a contract is supposed concluded between two equal parties. Once ICANN exercise its "regulatory power" in name of implementation or whatever else, it becomes more equal than the other parties. It seems that ICANN needs to choose which way to pursue further--contractual party or regulator? ICANN would face more conflicts and disputes by playing the dual roles simultaneously.
i think that this may contain the crux of the matter. avri
Alan, You're right, the policy/implementation d-mark does indeed move. And it is depends on which environmental variable is ascendant. Sometimes it is a personality and the force of that personality. Other times is an issue and the satellites with heightened interest around it. Because the power relationships in ICANN are both volatile and fungible. To my mind, this TM+50 is just another instance that rubbishes the argument 'ICANN cannot be a regulator since it is not a state' and 'policy is policy and implementation is implementation'. So, here it is again, ICANN as policy giving gifts as if it were a state. And indeed, with implementation as in this case MORE generous than any state. [Interestingly in the conversations leading up, Hong has pointed out the 50 variants of variants really means a factorial expansion, an almost limitless extension of trademark rights online as opposed to the brick and mortar world.] But if ICANN is petitioned to act to protect a community from the impact of its most deleterious statist actions, we are told 'that is regulation and we don't do that'! Go figure. -Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* ============================= On Mon, May 20, 2013 at 11:40 PM, Alan Greenberg <alan.greenberg@mcgill.ca>wrote:
http://www.icann.org/en/groups/board/governance/reconsideration/recommendati...
To cut to the result, the BCG rejected the request to overturn the inclusion of TM+50 into the TMCH.
Part of the decision was based on the fact that the original TMCH implementation itself, a result of the STI effort, was deemed (by the GNSO and all of us) to be part of the IMPLEMENTATION of Recommendation 3 of the GNSO new gTLD PDP:
Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law. Examples of these legal rights that are internationally recognized include, but are not limited to, rights defined in the Paris Convention for the Protection of Industry Property (in particular trademark rights), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (in particular freedom of expression rights).
As such, can a change or refinement to this "implementation" be anything other than still just implementation? This is to some extent supported by the minority position that the ALAC took on the STI report, specifically that the ALAC supported some level of TM + service/product being in the TMCH. We also supported common law trademarks in addition to registered trademarks. *IF* the STI had bowed to our wisdom on these issues, both of these would have been in the TMCH design.
But the STI did not overall agree, and they did not end up in the design.
Similarly, if the TM+50 had been raised during the STI and had won (not very likely in my opinion, just as our pet issues above did not win), then this too would have been part of the default implementation.
Which of course now raises an interesting question.
Why would these "features" have simply been part of the "implementation" of the TMCH is we had won the arguments in late 2009, but when we considered the TM+50 earlier this year, we forcefully felt that this was clearly policy?
The answer is not obvious, and yet it seems to be at the core of the visceral reaction that many of us have on the question of policy vs implementation.
I won't pretend that I have the answer to this. But I think that part of understanding it is to recognize that virtually all policy in the gTLD realm leads to implementation. Recent PDPs (and the new PDP process in the Bylaws) allow for an implementation team that helps ensure that the staff designed implementation follows both the word AND the intent of the policy. Indeed, one can consider that all of ICANN spent several years being the "implementation team" supporting the design of the New gTLD process and the AG.
I am starting to suspect that as policy takes on a concrete form during implementation, in peoples minds, the arrived at implementation and the original policy became meld together and become inseparable. It is a bit of a scary conclusion, because it means that, in our minds, the line between policy and implementation for any given issue, MOVES over time.
On a completely different issue, that of the new desired right of ICANN to change registry agreements without the concurrence of the registries (and outside of Consensus Policy) seems to validate my conclusion. One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.
I admit that much of what I have written here is really stream-of-consciousness (and it is a bit past midnight now!), and I have not fully thought it through, but I felt it important to capture it and I look forward to comments.
Alan
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
*- Thank you Alan, your "stream of consciousness" captures the complexity of the issue and underlines its continued importance.* * * *- "Moving" target or set of criteria: this is true in many organizations guided by elected volunteers. By contrast, the crucial and much more lasting role of some senior staff, e.g. General Counsel's Office is all the more striking. In retrospect, throughout the years of discussion about new gTLDs, the single most permanent fixture in ICANN was and still is the team of legal advisors: as is normal in their duties, they have on many occasions brought the Board discussion back to possible legal action against ICANN in case of ire on the part of any Domain Name business. It is this understandable, but excessive sway that legal liability holds in the US, which has to a large extent set the highly conservative tone of many ICANN Board decisions, whenever big trademarks felt at risk of losing even a fraction of their accrued advantages.* * * *- Because of this history, Hong and others are right in considering that there is now an ingrained belief that if a policy was not chosen for implementation in the past, it is in effect excluded for future action. This anomaly is sufficiently serious to merit a statement on its own, perhaps something jointly by several ACs and SOs, or at least by the ALAC. Such a statement should aim at rehabilitating the possibility for current practices to be replaced, even with suggestions that were not successful in the past.* * * *Jean-Jacques.* 2013/5/21 Carlton Samuels <carlton.samuels@gmail.com>
Alan, You're right, the policy/implementation d-mark does indeed move. And it is depends on which environmental variable is ascendant. Sometimes it is a personality and the force of that personality. Other times is an issue and the satellites with heightened interest around it. Because the power relationships in ICANN are both volatile and fungible.
To my mind, this TM+50 is just another instance that rubbishes the argument 'ICANN cannot be a regulator since it is not a state' and 'policy is policy and implementation is implementation'. So, here it is again, ICANN as policy giving gifts as if it were a state. And indeed, with implementation as in this case MORE generous than any state. [Interestingly in the conversations leading up, Hong has pointed out the 50 variants of variants really means a factorial expansion, an almost limitless extension of trademark rights online as opposed to the brick and mortar world.]
But if ICANN is petitioned to act to protect a community from the impact of its most deleterious statist actions, we are told 'that is regulation and we don't do that'! Go figure.
-Carlton
============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================
On Mon, May 20, 2013 at 11:40 PM, Alan Greenberg <alan.greenberg@mcgill.ca>wrote:
http://www.icann.org/en/groups/board/governance/reconsideration/recommendati...
To cut to the result, the BCG rejected the request to overturn the inclusion of TM+50 into the TMCH.
Part of the decision was based on the fact that the original TMCH implementation itself, a result of the STI effort, was deemed (by the GNSO and all of us) to be part of the IMPLEMENTATION of Recommendation 3 of the GNSO new gTLD PDP:
Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law. Examples of these legal rights that are internationally recognized include, but are not limited to, rights defined in the Paris Convention for the Protection of Industry Property (in particular trademark rights), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (in particular freedom of expression rights).
As such, can a change or refinement to this "implementation" be anything other than still just implementation? This is to some extent supported by the minority position that the ALAC took on the STI report, specifically that the ALAC supported some level of TM + service/product being in the TMCH. We also supported common law trademarks in addition to registered trademarks. *IF* the STI had bowed to our wisdom on these issues, both of these would have been in the TMCH design.
But the STI did not overall agree, and they did not end up in the design.
Similarly, if the TM+50 had been raised during the STI and had won (not very likely in my opinion, just as our pet issues above did not win), then this too would have been part of the default implementation.
Which of course now raises an interesting question.
Why would these "features" have simply been part of the "implementation" of the TMCH is we had won the arguments in late 2009, but when we considered the TM+50 earlier this year, we forcefully felt that this was clearly policy?
The answer is not obvious, and yet it seems to be at the core of the visceral reaction that many of us have on the question of policy vs implementation.
I won't pretend that I have the answer to this. But I think that part of understanding it is to recognize that virtually all policy in the gTLD realm leads to implementation. Recent PDPs (and the new PDP process in the Bylaws) allow for an implementation team that helps ensure that the staff designed implementation follows both the word AND the intent of the policy. Indeed, one can consider that all of ICANN spent several years being the "implementation team" supporting the design of the New gTLD process and the AG.
I am starting to suspect that as policy takes on a concrete form during implementation, in peoples minds, the arrived at implementation and the original policy became meld together and become inseparable. It is a bit of a scary conclusion, because it means that, in our minds, the line between policy and implementation for any given issue, MOVES over time.
On a completely different issue, that of the new desired right of ICANN to change registry agreements without the concurrence of the registries (and outside of Consensus Policy) seems to validate my conclusion. One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.
I admit that much of what I have written here is really stream-of-consciousness (and it is a bit past midnight now!), and I have not fully thought it through, but I felt it important to capture it and I look forward to comments.
Alan
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
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https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
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participants (5)
-
Alan Greenberg -
Avri Doria -
Carlton Samuels -
Hong Xue -
JJS