November 2012 - council - lists.icann.org

FW: Letter from the GAC regarding IOC/RC Protections
by Jonathan Robinson 20 Dec '12

20 Dec '12

All, FYI. Please see the attached letter received from the GAC last night my time. Jonathan From: GAC Secretariat [mailto:gacsec@gac.icann.org] Sent: 28 November 2012 21:38 To: jonathan.robinson(a)ipracon.com Cc: Steve Crocker; Fadi Chehade; Heather Dryden; Maria Häll; alice(a)apc.org; Choon Sai LIM (IDA) Subject: Letter from the GAC regarding IOC/RC Protections Sent on behalf of Heather Dryden, GAC Chair Dear Jonathan, Attached please find a letter from the GAC regarding IOC and Red Cross/Red Crescent protections. Best regards, Jeannie Ellers Jeannie Ellers Manager, GAC Coordination Internet Corporation for Assigned Names and Numbers 1101 New York Avenue NW, Suite 930 Washington, DC 20005 Ph. +1 202 570 7135 M. +1 310 302 7552

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Discussion kick-off on BC/IPC strawman proposal as blogged by Fadi
by Volker Greimann 11 Dec '12

11 Dec '12

Dear fellow councillors, frankly, I do not like most of what I am seeing regarding the latest BC/IPC demands. The new proposals re-open and significantly expand upon carefully developed and agreed upon compromise positions beyond their original scope and intent at the last minute and more significantly, outside the established policy making mechanisms. Such a precedent will only serve to open the floodgates for any community or stakeholder group to reopen any nominally closed and agreed process to push their agenda just a little beyond what the community had already agreed upon. We should consider the ramifications of the CEO getting involved in what easily could be viewed as policy making decisions and that to me should be the focus of the council now as we look to provide feedback to Fadi about his strawman and what implications it would have on future policy development. While I welcome the more hands-on and practical approach of our new CEO, it would be helpful to have more detailed information on how ICANN staff and Fadi arrived at the conclusion that most of these positions are implementation issues rather than policy. However, even if it were implementation rather than policy, this does not mean these suggestions should be implemented without proper process and especially if the majority of the community is in disagreement. Just because you can does not mean you should. These proposals need to be vetted by the community, namely the GNSO Council. To quote Steve Crocker from the Toronto public forum: "Three more items. The rights protection in new gTLDs. The Intellectual Property Constituency and business constituency reached consensus on further mechanisms for new gTLD rights protection and agreed to socialize these to the rest of the GNSO AND THE BOARD LOOKS FORWARD TO receiving input on these suggestions FROM the GNSO. So that is our plan, so to speak, WHICH IS WE WILL CONTINUE TO LISTEN AND WAIT FOR THIS TO COME UP" From what I have seen, the strawman proposal was developed by the IPC and the BC together with ICANN staff. Others made themselves available to discuss them, but it does not seem accuracte to say they actually developed the proposals. It is now our job as the GNSO council to weigh in and make our opinions on these proposals clear. To kick this process off, I will make the first move: -Blocking (aka "LPR"): While not directly included in the straw man, I understand this is still on the table. The paper on this proposal is well written and does an excellent job of totally blocking out the actual harms the implementation of this proposal would do. Its arguments only take into account other trademark holders that may apply in the sunrise period whose rights would naturally not be affected. No mention however is made of other legitimate potential registrants whose rights to a non-infringing registration after the sunrise phase would be completely eliminated. These include people with the same name as the mark, trademark holders not participating in the sunrise for whatever reason (newer trademark than permitted, lack of prior knowledge, etc) or companies without eligible trademarks. Frankly, only TM-holders that would otherwise participate in the Sunrise would think this is a good idea. There will likely be a lot of money to be made by implementing this demand but this is not good policy. -Claims 2: The extension of Trademark Claims is a service except for a very small part of the community for which there is no need and that will only serve to scare away otherwise legally eligible registrants, slow the registration process and drive up costs of registrations. As many of the new TLDs will initially have a very small market such restrictions will decrease the customer base even further. Furthermore, the description of the proposal as "voluntary" seems to fundamentally misrepresent the nature of the proposal, since it will be anything but voluntary for registrants, registries and registrars. The only parties for whom the optional nature of this proposal applies are its sole beneficiaries. This proposal also does not take into account in any way how the technical systems of each individual registrar need to be adapted to set this system up. Having to implement a 60 day temporary system that will have light use (Regular claims) is simpler than a system that will have many more commands running through it and many more TLDs (as it will last for 1 year). Finally, the idea that registrars and registries will have to build these systems at their own cost and risk with no guarantee of compensation for their use as Rights Holders could opt out is not appropriate as it creates a definite financial burden for registries and registrars to alleviate a potential burden resulting from the presumed need for protection against infringing registrations. -Scope: This proposal is effectively a multiplier of the above issues, i.e. every problem resulting from the above proposals will be multiplied by up to 50 strings per TMCH entry. I also have come to understand that UDRP decisions are not always flawless or beyond reproach as many have been successfully overturned in court, so basing a blocking mechanisms on UDRP decisions seems like an overreach (again). -Notice: Of all the new demands put on the table by the IPC and the BC, the only one that I can support without issues is the Sunrise Notice Requirement. This is pure implementation, and makes sense both from a marketing as well as a RPM standpoint. The rest are mostly overreach to benefit a single interest group to the detriment of all others. Of course I understand the desire of users of the TMCH to protect their rights against infringements but the proposed measures must end exactly at the point where they begin to infringe upon the legitimate rights rights of others. Of course, there is nothing to prevent any registry from implementing any of these demands voluntarily, but as policy, I heartily disagree with both the process and format in which these proposals have been suggested and discussed as well - to a large degree - their content. Like I indicated above, this is a topic that needs to be discussed on our level and given the limited time on our schedules during the monthly council calls and the urgency of the matter, I would like to kick off the discussion with this paper. Best regards, Volker Greimann

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RE: POLICY vs. IMPLEMENTAION
by Bruce Tonkin 30 Nov '12

30 Nov '12

Hello Jeff, >> Perhaps rather than coming out with a document from "staff", you solicit a few volunteers from the community to help staff in the preparation of this initial cut of the paper. For too long the community is forced into a reactive mode once staff in isolation comes up with its position (which may or may not be reflective of the community's thoughts). Then staff traditionally is in a position to "defend" its position and the community feels like it is too late to have an impact. I do not believe that is the right way to proceed. If you get a small group together that works on this initial paper with you, staff does not have to take on this burden alone and the community can feel like it has made a contribution. This paper was produced at the direction of the Board Governance Committee (BGC), in response to the ATRT recommendation 6 that stated: " The Board should clarify, .... the distinction between issues that are properly subject to ICANN's policy development processes and those matters that are properly within the executive functions performed by the ICANN staff and Board and, as soon as practicable, develop complementary mechanisms for consultation in appropriate circumstances with the relevant SOs and ACs on administrative and executive issues that will be addressed at Board level." The paper - pointed out the clear cut cases of topics that go through a routine public comment process (e.g on the operating plan), and topics that go through the full PDP (e.g the new gTLD policy). However we recognized that many areas were falling in between the two situations, and that the processes were very ad-hoc. Examples include the process of consultation on vertical integration, additional trademark protections (IRT team, and GNSO STI team, and most recently the various consultations on the trademark clearinghouse design and yet more proposals for additional trademark protections. The paper stated: " This raises the question whether it would be beneficial to develop a more formalized process for requesting and developing community advice or input that does not require the implementation of a formal PDP and for which the public comment mechanism is not sufficient. As the frequency of use of this function increases, ICANN is now initiating conversation among the community to help formalize this process. A workshop is scheduled at the ICANN Meeting in Toronto to inform this work." The BGC was disappointed about the lack of discussion of this important area in Toronto (I think there were less than 10 people in the room, and about half were Board directors). See the attached slides that pose open questions for the community. However I understand the issue around scheduling problems, and the lack of awareness that the session was discussing the issues you raise. We certainly agree with you that it is an important topic and a source of tension between various parts of the community due to the lack of predictability in the process. I am more than willing to consider other ways to have the conversation. I think the BGC would be happy to have a dialog with a smaller group, or the GNSO could even form a working group to begin discussing this. Basically I am open to ideas from members of the GNSO community for how best to take this forward. Note that I was part of the original "small group" that designed the original PDP within about 30 days with a few teleconferences. The process seems to be right but the timelines have consistently not worked, and there are issues when one or more parties seek to deliberately delay the process rather than focussing on the discussion of content. The deliberately stalling of the PDP process or the lack of genuine willingness to find a compromise is one of the reasons many seek to create ad-hoc mechanisms to go around it. Regards, Bruce Tonkin Chair, Board Governance Committee

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Board resolutions from 26 November
by Jonathan Robinson 30 Nov '12

30 Nov '12

All, Please see below for the link to the board resolutions from 26 November as well as the associated rationale. http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-26nov12- en.htm Jonathan

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FW: ATRT 2 application
by Glen de Saint Géry 29 Nov '12

29 Nov '12

FYI Forwarded From: Alice Jansen Sent: jeudi 29 novembre 2012 05:54 Dear Glen, For your information - This is to notify that we have received an application from Marie-Laure Lemineur who wishes to represent the GNSO on the Accountability and Transparency Review 2 (ATRT 2). Should you wish to compile the GNSO applications on a GNSO wiki page (I recall this is something you did for previous reviews), you will find links to Marie-Laure's documents on the ATRT 2 applications webpage: http://www.icann.org/en/about/aoc-review/atrt/2/applications Kindly note that Wednesday, 5 December 23:59 UTC is the deadline for interested individuals to submit their application (announcement: http://www.icann.org/en/news/announcements/announcement-2-14nov12-en.htm). Please do not hesitate to contact me should you have any questions. Thanks! Very best regards Alice -- Alice Jansen Organizational Reviews Manager ICANN Rond Point Schuman 6, 1st floor B-1040 Brussels Belgium Glen de Saint Géry GNSO Secretariat gnso.secretariat(a)gnso.icann.org http://gnso.icann.org

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Re: POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC regarding IOC/RC Protections)
by Alan Greenberg 29 Nov '12

29 Nov '12

Jeff, well said. For the record, your quote was if not verbatim, pretty close. It was meant to be humorous, but was intended to reflect what has been going on at times, in my opinion. Alan At 29/11/2012 09:55 AM, Neuman, Jeff wrote: >All, > >We have a very serious problem here that needs >immediate attention. I am not referring to the >merits of whether any of these organizations >deserve protection or not, or whether there >should be additional safeguards for IP owners in >the new gTLD process or whether certain Whois >Review team recommendations could be put into >place . Forget all of that. Forget the merits >and substance of these important issues. > >The real issue is that new reliance on the terms >policy vs. implementation. This is the >issue that should receive top priority. To >quote Alan Greenberg (or at least paraphrase), >when one group wants something in place without >using the policy process, they call it >implementation. Those that oppose it, call it >policy. While that statement was made several >times by Alan partly in jest, that statement does have merit. > >Lets look at the following 3 examples: > >1. IOC/RC As the letter sent around by >Jonathan shows, the GAC is thoroughly annoyed >with the GNSO for starting a policy process on >the protection of IOC and Red Cross marks. They >believe (although unstated), that they have >exclusive jurisdiction over these types of >public policy issues and do not want the GNSO to >take years to work out whether these >organizations (which they believe are protected >by law) should receive protections in the new >gTLD process. Without commenting on the merits >of this argument, look at what they have >done. They have called the protections as >nothing more than implementation and >therefore, the GNSO should explain itself as to >why we believe we have a right to start a policy >process on it. After all, implementation can >just be enacted by the Board. There is no need >for the GNSO to get involved, in their viewnor do they want it. > >2. Whois Review Team: The ICANN Board >sought guidance from the entire Internet >community on whether the recommendations >involved implementation or policy. Why? >Because if it is implementation, there is no >need to involve the GNSO community and it can >just be enacted. Those that supported the >recommendations wholeheartedly called them >implementation. Those that opposed the >recommendations called it policy. I believe >that many who called it policy actually truly >believe there are policy issues involved, but >some called it policy, to have it go through the >long drawn out process we call a PDP (with the >hopes that it dies a slow death). Neither side of this debate is blameless. > >3. The now infamous New gTLD >straw-man: For the record, I was a part of >the group that discussed the straw man in >Brussels and LA over the past few weeks. I >found those discussions very useful and >appreciate the efforts being made by the new >ICANN CEO, who I have a tremendous amount of >respect for. I believe he truly will make a >huge positive impact on ICANN for many years to >come. But, now the debate has turned into what >is policy and what is implementation. The >IPC/BC and their representatives have called all >of their proposals implementation. The NCSG, >Registries, Registrars and Applicants have >called much of it policy. ICANN staff has now >weighed in on their thoughts and have classified >certain items as implementation (thereby >negating the need for GNSO policy development), >and other items as policy, thereby requiring >extensive involvement from the GNSO community >note I did NOT say necessarily PDP). > >I believe we all need to take a step back from >the issues immediately and decide once and for >all an agreed upon bottom-up multi-stakeholder >definition of what is policy and what is >implementation. Or at the very least a >framework for making that assessment when issues >arise. I would advocate for a cross community >group made up of members from ICANN staff, the >GNSO, the GAC and others to come together to >figure this issue out, so that we get out of >this rut we are now in. At the same time, we >need to fix the image of the GNSO policy >processes so that they are no longer feared, but >embraced. They need to not be used as vehicles >for delay, but rather utilized for the common good. > >If we are able to do this, I believe many of the >issues we are now having will become easier to >resolve (and we can focus on the merits). If >not, I see these issues getting much worse over >the coming months/years. I believe the future >of the GNSO, and even the multi-stakeholder >model in general hinge on the definition of these 2 words. > >I would be very happy to volunteer to serve on such a group. > >Thanks. > > >Jeffrey J. Neuman >Neustar, Inc. / Vice President, Business Affairs > > >From: owner-council(a)gnso.icann.org >[mailto:owner-council@gnso.icann.org] On Behalf Of Jonathan Robinson >Sent: Thursday, November 29, 2012 5:00 AM >To: council(a)gnso.icann.org >Subject: [council] FW: Letter from the GAC regarding IOC/RC Protections > >All, > >FYI. Please see the attached letter received from the GAC last night my time. > >Jonathan > >From: GAC Secretariat >[<mailto:gacsec@gac.icann.org>mailto:gacsec@gac.icann.org] >Sent: 28 November 2012 21:38 >To: <mailto:jonathan.robinson@ipracon.com>jonathan.robinson(a)ipracon.com >Cc: Steve Crocker; Fadi Chehade; Heather Dryden; >Maria Häll; <mailto:alice@apc.org>alice(a)apc.org; Choon Sai LIM (IDA) >Subject: Letter from the GAC regarding IOC/RC Protections > >Sent on behalf of Heather Dryden, GAC Chair > >Dear Jonathan, > >Attached please find a letter from the GAC >regarding IOC and Red Cross/Red Crescent protections. > >Best regards, > >Jeannie Ellers > >Jeannie Ellers >Manager, GAC Coordination >Internet Corporation for Assigned Names and Numbers >1101 New York Avenue NW, Suite 930 >Washington, DC 20005 >Ph. +1 202 570 7135 >M. +1 310 302 7552

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Letter of 29 November 2012 / Correction to letter of 26 November 2012
by Jonathan Robinson 29 Nov '12

29 Nov '12

All, Please see attached. I have spoken with Brian and apologised for characterising his 15 November 2012 abstention as a vote against the relevant motion. Jonathan

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RE: [council] Proposed Council dates through to December 2013
by john＠crediblecontext.com 29 Nov '12

29 Nov '12

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Update from the New gTLD Program Committee
by Jonathan Robinson 28 Nov '12

28 Nov '12

All, Cherine Chalaby, Chair of the New gTLD Program Committee, has asked me to forward to you, a letter providing an update on their most recent (26 November 2012) meeting. I have also attached an information update I provided to the New gTLD Program Committee immediately ahead of their 26 November meeting. Jonathan

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Interim position of the European Commission concerning the applications for new gTLDs
by Bruce Tonkin 28 Nov '12

28 Nov '12

Hello All, For information the EU has created their own notices for new gTLD applicants. "The Commission has identified a number of new gTLD applications which could possibly raise issues of compatibility with the existing legislation (the acquis) and/or the policy positions and objectives of the European Union." "The presence of a new gTLD in the list is rather a signal that further discussions with the relevant applicant are necessary" See attached for further information. Regards, Bruce Tonkin

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