All, As you likely know, I am a big fan of following policies that are a product of experience and asserting that commitment in a spirit of comity. It is for the latter reason that I found Jeff's draft jarring. It was on solid ground but it was unnecessarily aggressive. Because of that, I think Brian has helped soften the delivery of the message in ways we ought to adopt. But for as thick a velvet glove as we can wear, the key message we need to make -- protections are policy -- is made: "In any case, the Council believes that policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context – particularly at the second level and in both new and existing TLDs." Even Brian's amendment notes that there is room to maneuver between the laws cited by the GAC. For that reason alone, the GAC ought to appreciate the need for the Council to act. Simply, the PDP we are pursuing is a prudent approach to setting ground rules for the protections we all believe are necessary. I am in agreement with Brian that we need not pick unnecessary fights, particularly with the government reps with whom we are seeking to build a more effective working relationship. Cheers, Berard --------- Original Message ---------Subject: RE: [council] potential annex to Jeff's draft letter From: "Winterfeldt, Brian" <bwinterfeldt@steptoe.com> Date: 1/29/13 5:15 pm To: "council@gnso.icann.org" <council@gnso.icann.org> 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 +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 +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@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