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 I believe Brian's suggestions would change the letter in such a way that it would no longer represent the views of the majority of council.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@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@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf OfWinterfeldt, Brian Sent: Tuesday, January 29, 2013 8:16 PM To: 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@steptoe.com
Steptoe
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------------------------------------------- From: owner-council@gnso.icann.org on behalf of Jonathan Robinson[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@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