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February 2013

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RE: [council] potential annex to Jeff's draft letter
by Winterfeldt, Brian Feb. 1, 2013

Feb. 1, 2013

Dear Jonathan: Thank you for picking up the pen for this final iteration to seek the middle ground. We have attached just a few very minor cleanup edits. Our only substantive amendment was to change the last few sentences at the end of the fifth paragraph that noted the IPC position and the need for a minority statement-which were not likely intended to remain in the final letter-into a very brief footnote acknowledging that position. Hopefully this slight adjustment is agreeable for everyone. Thank you, Brian Brian J. Winterfeldt Partner bwinterfeldt(a)steptoe.com<mailto:bwinterfeldt@steptoe.com> Steptoe +1 202 429 6260 direct +1 202 903 4422 mobile +1 202 429 3902 fax Steptoe & Johnson LLP - DC 1330 Connecticut Avenue, NW Washington, DC 20036 www.steptoe.com<http://www.steptoe.com/> +1 212.506.3935 direct +1 212.506.3950 fax Steptoe & Johnson LLP - New York 1114 Avenue of the Americas New York, NY 10036 This message and any attached documents contain information from the law firm Steptoe & Johnson LLP that may be confidential and/or privileged. If you are not the intended recipient, please do not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete this message. ------------------------------------------- From: Jonathan Robinson[SMTP:JONATHAN.ROBINSON@IPRACON.COM] Sent: Thursday, January 31, 2013 11:07:23 AM To: Winterfeldt, Brian; 'Thomas Rickert' Cc: 'Mason Cole'; john(a)crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; council(a)gnso.icann.org<mailto:council@gnso.icann.org> Subject: RE: [council] potential annex to Jeff's draft letter Auto forwarded by a Rule All, I have made an attempt to produce what I will refer to as a final draft. I have based it on Jeff's original letter and made a good faith attempt to include a significant part of Brian's / the IPC input. Some key points: 1. I have not provided it in redline and clean versions. Apologies. 2. I have added (and made minor edits to) the agreed appendices 3. Please note carefully the last sentence in the second paragraph and provide any input on the accuracy of this. 4. I have retained paragraph 3 which attempts to define "policy" from past experience. 5. I have not made reference to the staff note on policy and implementation. Rationale: This is an important piece of work in a critical area but it has been subject to very limited community feedback so far. 6. I have not attempted to provide the rationale for why "... the Council thought it best to adopt a holistic approach to the issue of special protection ..." I think that's it. We have here a communication that we have worked hard on and the attempt to deliver a considered and reasonable response should be taken as that. I understand that it may not go far enough to accommodating the IPC's requirements and if so, we should consider a form of minority position. My preference is to work with and perhaps make a final refinement of a letter we can all sign off on. Please provide any final input as you see fit and I will use that to produce a final copy. I think we can get away with sending it tomorrow if necessary (and still date it today) but that's it as far as extending the deadline. Thanks for all the contributions and effort so far. Jonathan From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Jonathan Robinson Sent: 30 January 2013 22:01 To: 'Winterfeldt, Brian'; 'Thomas Rickert' Cc: 'Mason Cole'; john(a)crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; council(a)gnso.icann.org<mailto:council@gnso.icann.org> Subject: RE: [council] potential annex to Jeff's draft letter Thanks. I'll take the risk then with this contentious and high-profile issue! Jonathan. From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Winterfeldt, Brian Sent: 30 January 2013 21:17 To: 'Thomas Rickert'; Jonathan Robinson Cc: 'Mason Cole'; john(a)crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; council(a)gnso.icann.org<mailto:council@gnso.icann.org> Subject: RE: [council] potential annex to Jeff's draft letter Mine as well. Best, Brian Brian J. Winterfeldt Partner bwinterfeldt(a)steptoe.com<mailto:bwinterfeldt@steptoe.com> Steptoe From: Thomas Rickert [mailto:rickert@anwaelte.de] Sent: Wednesday, January 30, 2013 4:10 PM To: Jonathan Robinson Cc: 'Mason Cole'; john(a)crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; Winterfeldt, Brian; council(a)gnso.icann.org<mailto:council@gnso.icann.org> Subject: Re: [council] potential annex to Jeff's draft letter Well stated, Jonathan! You have my support for that. Thomas Am 30.01.2013 um 22:06 schrieb "Jonathan Robinson" <jonathan.robinson(a)ipracon.com<mailto:jonathan.robinson@ipracon.com>>: I am wondering if I might have to pick up the pen for the final iteration and seek to find the middle ground? After all, my name is likely to be on the bottom of the letter. Jonathan From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org<mailto:council@gnso.icann.org>] On Behalf Of Mason Cole Sent: 30 January 2013 20:28 To: john(a)crediblecontext.com<mailto:john@crediblecontext.com> Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; council(a)gnso.icann.org<mailto:council@gnso.icann.org> Subject: Re: [council] potential annex to Jeff's draft letter I too support #1. I didn't necessarily find Jeff's letter to be over-aggressive. That said if the council thinks it's a good idea to make the language relatively more diplomatic, I don't object, provided the content of the message isn't changed. On Jan 30, 2013, at 10:22 AM, john(a)crediblecontext.com<mailto:john@crediblecontext.com> wrote: I am fully in support of #1. We need to respond substantively, just is a less flammable way. Berard --------- Original Message --------- Subject: RE: [council] potential annex to Jeff's draft letter From: "Jonathan Robinson" <jonathan.robinson(a)ipracon.com<mailto:jonathan.robinson@ipracon.com>> Date: 1/30/13 10:02 am To: "'David Cake'" <dave(a)difference.com.au<mailto:dave@difference.com.au>>, "'Neuman, Jeff'" <Jeff.Neuman(a)neustar.us<mailto:Jeff.Neuman@neustar.us>> Cc: "'Winterfeldt, Brian'" <bwinterfeldt(a)steptoe.com<mailto:bwinterfeldt@steptoe.com>>,council(a)gnso.icann.org<mailto:council@gnso.icann.org> All, I believe we are heading to one of two options: 1. Adopt the substance of Jeff's draft with agreed changes. I believe that we will need to reflect Brian's / the IPC input on this and so it may need some changes in order to do so. 2. Write to Heather / the GAC indicating that we are working on this but need a little more time. Consider also that want to limit the extent to which we go into the Policy vs Implementation issue here since this is the subject of a broader and longer term initiative. Thanks. Jonathan From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of David Cake Sent: 30 January 2013 17:49 To: Neuman, Jeff Cc: Winterfeldt, Brian; council(a)gnso.icann.org<mailto:council@gnso.icann.org> Subject: Re: [council] potential annex to Jeff's draft letter I am supportive of Jeff's position - I'm in favour of sending the letter as it was drafted (with the suggested changes from Thomas in the appendix). I believe Brian's suggestions would change the letter in such a way that it would no longer represent the views of the majority of council. Regards David On 30/01/2013, at 6:54 AM, "Neuman, Jeff" <Jeff.Neuman(a)neustar.us<mailto:Jeff.Neuman@neustar.us>> wrote: Thank you for this Brian. I think we face a dilemma here because your revisions not only gut the letter that was written by us, but also in many respects represents a complete reversal of the positions taken by most of the members of council on the previous council calls. We can of course make some updates based on the new paper ICANN staff just released, but remember that that was not out when I initially sent the letter. So, we now have two versions of the letter which I do not believe cannot be reconciled. If it just the IPC that supports this new version, then we should send the original version and allow the IPC to include comments as a minority report. If, however, there is other support for this version, then we have an issue to work through. With respect to the comments raised in the e-mail below: o We disagree with the notion that "the impact of the instant PDP is to challenge, or at least question, not only the GAC's proposed criteria for protection," or "the GAC's determination to advance protection for the specific two organizations that meet that criteria." This was carefully considered by the Council when it chose to implement the PDP and rejected by those voting in favor of the PDP. o I don't believe we said that the sole remit of the PDP was to look at exceptions, but rather, that was listed as an example. o I have no objection of including a footnote that the IPC did not support the PDP, but to change the entire letter simply because one constituency didn't agree to not seem to be the right approach. o The policy framework put out by ICANN staff is still under discussion and should not be used for any other purpose until that document has been thoroughly vetted. We appreciate the fact that the IPC believes that the definition of policy is overbroad, but we have taken this definition from what has been used in the past by ICANN in actual situations to look at actual issues to determine whether it is in scope for the policy process. It is the only community accepted definition that there is. o On the legal issue of intermediary liability, I could cite a number of legal cases in the US, including the Lockheed Martin case, Brookfield, etc. but we wanted to keep the letter short and to the point. I also have a case we litigated in Belgium that states the same thing that could be cited involving the droit.biz domain name. In short, we as a council need to decide what to do. The registries are in favor of sending the letter as it was drafted (with the tweaks from Thomas on the Appendix). The IPC comments would drastically change the letter in a way that defers to the GAC on everything policy-related, which we believe represents a contravention of the ICANN Bylaws (where the GNSO is charged with policy making for gTLDs) and a potential break down of the multi-stakeholder process. Don't get me wrong, the governments are vital for the multi-stakeholder process to work and we believe their opinions/advice should be weighed heavily. But they cannot be the "be-all-end-all" of policy with respect to gTLDs. This is not only an issue with respect to the IOC/RC and IGOs, but also Whois, law enforcement activities, etc. We need to find a way to all work together. Best regards, Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org>[mailto:owner-council@gnso.icann.org<mailto:council@gnso.icann.org>] On Behalf OfWinterfeldt, Brian Sent: Tuesday, January 29, 2013 8:16 PM To: council(a)gnso.icann.org<mailto:council@gnso.icann.org> Subject: RE: [council] potential annex to Jeff's draft letter Dear all: As you may already be aware, I have a different point of view on the Council's response to the GAC with respect to the ongoing IGO-INGO PDP. Having informally spoken to GAC representatives about this issue, here are some personal comments, that are shared by IPC leadership, as well as a proposed redline that I would like to have on record and I hope the Council will take into consideration. o The rather broad scope of the current IGO INGO PDP, which considers "whether there is a need for special protections at the top and second level" of all gTLDs, has the practical effect of second guessing GAC advice with respect to international legal norms and public policy. In other words, whether intentional or unintentional, the impact of the instant PDP is to challenge, or at least question, not only the GAC's proposed criteria for protection, but also the GAC's determination to advance protection for the specific two organizations that meet that criteria. o Please bear in mind that the GAC was careful to propose protections for Red Cross designations, Olympic words and a finite list of IGO acronyms for new gTLDs only. I cannot recall anyone ever recommending or requesting such protection in all existing gTLDs as well. Thus, the Council's response to the GAC needs to fully explain any underlying rationale for the unilateral decision to broaden the scope of the instant PDP well beyond GAC advice to include existing gTLDs. o The Council's current draft response to the GAC seems to suggest that the GNSO's primary remit of policy development relating to the IOC/Red Cross is "to determine what, if any, exceptions (i.e. for pre-existing, non-commercial, and/or geographical use) should apply in the domain name context-particularly at the second level and in both new and existing TLDs." If this is ultimately our position as a Council, then I believe it is best to gently back away from the current PDP, at least with respect to the Red Cross designations and Olympic words, in favor of something much more expeditious and narrow. o As you may recall, the original IPC position on this issue is that IOC/Red Cross protection should not be subject to a PDP. That position is not reflected in the letter, and it should be reflected, even if it is reflected as a minority view. o The proposed definition of "policy" in the letter is overbroad, subjective and particularly inappropriate in light of the recent policy versus implementation discussion framework published by ICANN policy staff. I believe it is better to simply admit that there is no bright line test and recognize that this issue is ripe for further discussion within the ICANN community. o To clarify, I do not believe that the GAC is asking for protection of the entire .INT list of names. Rather, it is my understanding that the list of IGOs that qualify under the GAC's criteria (i.e. are treaty-based organizations) is a discrete list of around only 200 acronyms. o Finally, the Council should not support anything, regardless of its substance, that may be interpreted as a legal opinion on intermediary liability, such as the statement that, "(To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.)" Conclusions such as these should be fleshed out and substantiated with objective facts, research or citations. Please contact me if you would like to discuss any of these comments or proposed amendments further. Thank you, Brian Brian J. Winterfeldt Partner bwinterfeldt(a)steptoe.com<mailto:bwinterfeldt@steptoe.com> Steptoe +1 202 429 6260 direct +1 202 903 4422 mobile +1 202 429 3902 fax Steptoe & Johnson LLP - DC 1330 Connecticut Avenue, NW Washington, DC 20036 www.steptoe.com<http://www.steptoe.com/> +1 212.506.3935 direct +1 212.506.3950 fax Steptoe & Johnson LLP - New York 1114 Avenue of the Americas New York, NY 10036 This message and any attached documents contain information from the law firm Steptoe & Johnson LLP that may be confidential and/or privileged. If you are not the intended recipient, please do not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete this message. ------------------------------------------- From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org> on behalf of Jonathan Robinson[SMTP:JONATHAN.ROBINSON@IPRACON.COM<smtp:JONATHAN.ROBINSON@IPRACON.COM>] Sent: Monday, January 28, 2013 1:32:24 AM To: 'Thomas Rickert'; 'GNSO Council List' Subject: RE: [council] potential annex to Jeff's draft letter Auto forwarded by a Rule Many thanks Thomas, I'll certainly plan to review today. Jeff (as lead) and others, please note that this is due for completion this week since I told Heather we'd reply to her in January. Thanks, Jonathan -----Original Message----- From: owner-council(a)gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Thomas Rickert Sent: 27 January 2013 17:29 To: GNSO Council List Subject: [council] potential annex to Jeff's draft letter All, as discussed, please find attached a text that could be used as an Annex to the draft letter prepared by Jeff in response to the GAC to illustrate the complexity of the matter. The intention was to keep it very brief (a bit over a page), but still show that there are some issues that need to be resolved. Thanks, Thomas

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