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<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@gnso.icann.org<mailto: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> [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
Thank-you Brian. Appreciate the effort that you have put in here. Others, please be aware that we are very close to the end of January, the time in which I promised to reply to Heather. On a related note, Brian, I now see that I overlooked your comments on the initial letter. Apologies, it seems that they got overlooked in the run-up to the holidays at the end of the year. Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Winterfeldt, Brian Sent: 30 January 2013 01:16 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 <mailto:bwinterfeldt@steptoe.com> 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 <http://www.steptoe.com/> 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: <mailto:owner-council@gnso.icann.org> 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: <mailto:owner-council@gnso.icann.org> owner-council@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
Dear Brian,
oThe 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.
Under this scope, the PDP would not only examine the need for special protections in new gTLDs but also under the existing ones. One may argue whether this is necessary or distracting (see the next point), but I do not see it as directly challenging the GAC advice. I personally would have preferred a more direct reference to the level of protections required. After all, the term "special protections" is not particularly conclusive as to what these protections are actually supposed to be, and also the GAC has been rather opaque on what kind of protections they envision. It is the duty of the GNSO to fill the GAC advice with life and I agree that the language describing the scope of the PDP should have been more clear on that.
oPlease 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.
While I also cannot recall any such request or recommendation, I fail to see why new gTLD should be treated differently from existing gTLDs. If it is determined that a form of special protection is necessary, why would such a need not also apply to existing TLDs?
oThe 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.
Would it not be the job of the PDP to make exactly that determination as part of their deliberations?
oThe 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.
I would not call it inappropriate just because there is no clear line in the sand. Best, Volker Greimann
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 Of Winterfeldt, 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<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@gnso.icann.org<mailto: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> [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
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
+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
I also support Jeff's position. I think we should and the letter as drafted including the IPC position as a minority report. Best regards, Osvaldo El 30/01/2013, a las 09:50, "David Cake" <dave@difference.com.au<mailto:dave@difference.com.au>> escribió: 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<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@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@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@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@gnso.icann.org<mailto: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> [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 ________________________________ El presente correo y cualquier posible archivo adjunto está dirigido únicamente al destinatario del mensaje y contiene información que puede ser confidencial. 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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@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@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@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 <mailto:bwinterfeldt@steptoe.com> 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 <http://www.steptoe.com/> 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: <mailto:owner-council@gnso.icann.org> 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: <mailto:owner-council@gnso.icann.org> owner-council@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
Hi Jonathan, I would support option 1. and request a minority opinion from the IPC to be attached to the letter. By doing so we could hit our deadline. Best, Volker
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@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@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@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:
oWe 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.
oI 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.
oI 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.
oThe 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.
oOn 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> [mailto:owner-council@gnso.icann.org <mailto:council@gnso.icann.org>]*On Behalf Of*Winterfeldt, Brian *Sent:*Tuesday, January 29, 2013 8:16 PM *To:*council@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.
oThe 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.
oPlease 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.
oThe 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.
oAs 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.
oThe 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.
oTo 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.
oFinally, 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 <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@gnso.icann.org <mailto: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>[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
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
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@ipracon.com> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com>, 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@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@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@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 +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
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@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@ipracon.com> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com>, 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@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@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@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
+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
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@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mason Cole Sent: 30 January 2013 20:28 To: john@crediblecontext.com Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; 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@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@ipracon.com> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com>, 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@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@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@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 <mailto:bwinterfeldt@steptoe.com> 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 <http://www.steptoe.com/> 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: <mailto:owner-council@gnso.icann.org> 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: <mailto:owner-council@gnso.icann.org> owner-council@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
Well stated, Jonathan! You have my support for that. Thomas Am 30.01.2013 um 22:06 schrieb "Jonathan Robinson" <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@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mason Cole Sent: 30 January 2013 20:28 To: john@crediblecontext.com Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; 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@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@ipracon.com> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com>,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@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@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@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
+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
Mine as well. Best, Brian Brian J. Winterfeldt Partner bwinterfeldt@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@crediblecontext.com; 'David Cake'; 'Neuman, Jeff'; Winterfeldt, Brian; 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@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@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@crediblecontext.com<mailto:john@crediblecontext.com> Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; 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@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@ipracon.com<mailto:jonathan.robinson@ipracon.com>> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au<mailto:dave@difference.com.au>>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us<mailto:Jeff.Neuman@neustar.us>> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com<mailto:bwinterfeldt@steptoe.com>>,council@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@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@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@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@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@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@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@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@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
Thanks. I'll take the risk then with this contentious and high-profile issue! Jonathan. From: 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@crediblecontext.com; 'David Cake'; 'Neuman, Jeff'; council@gnso.icann.org Subject: RE: [council] potential annex to Jeff's draft letter Mine as well. Best, Brian Brian J. Winterfeldt Partner 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@crediblecontext.com; 'David Cake'; 'Neuman, Jeff'; Winterfeldt, Brian; 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@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@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mason Cole Sent: 30 January 2013 20:28 To: john@crediblecontext.com Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; 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, <mailto:john@crediblecontext.com> 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" < <mailto:jonathan.robinson@ipracon.com> jonathan.robinson@ipracon.com> Date: 1/30/13 10:02 am To: "'David Cake'" < <mailto:dave@difference.com.au> dave@difference.com.au>, "'Neuman, Jeff'" < <mailto:Jeff.Neuman@neustar.us> Jeff.Neuman@neustar.us> Cc: "'Winterfeldt, Brian'" < <mailto:bwinterfeldt@steptoe.com> bwinterfeldt@steptoe.com>, <mailto:council@gnso.icann.org> 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: <mailto:owner-council@gnso.icann.org> owner-council@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; <mailto:council@gnso.icann.org> 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" < <mailto:Jeff.Neuman@neustar.us> 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: <mailto:owner-council@gnso.icann.org> owner-council@gnso.icann.org[mailto:owner- <mailto:council@gnso.icann.org> council@gnso.icann.org] On Behalf OfWinterfeldt, Brian Sent: Tuesday, January 29, 2013 8:16 PM To: <mailto:council@gnso.icann.org> 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 <mailto:bwinterfeldt@steptoe.com> 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 <http://www.steptoe.com/> 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: <mailto:owner-council@gnso.icann.org> 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: <mailto:owner-council@gnso.icann.org> owner-council@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
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@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@crediblecontext.com; 'David Cake'; 'Neuman, Jeff'; 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@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@crediblecontext.com; 'David Cake'; 'Neuman, Jeff'; council@gnso.icann.org Subject: RE: [council] potential annex to Jeff's draft letter Mine as well. Best, Brian Brian J. Winterfeldt Partner 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@crediblecontext.com; 'David Cake'; 'Neuman, Jeff'; Winterfeldt, Brian; 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@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@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mason Cole Sent: 30 January 2013 20:28 To: john@crediblecontext.com Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; 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, <mailto:john@crediblecontext.com> 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" < <mailto:jonathan.robinson@ipracon.com> jonathan.robinson@ipracon.com> Date: 1/30/13 10:02 am To: "'David Cake'" < <mailto:dave@difference.com.au> dave@difference.com.au>, "'Neuman, Jeff'" < <mailto:Jeff.Neuman@neustar.us> Jeff.Neuman@neustar.us> Cc: "'Winterfeldt, Brian'" < <mailto:bwinterfeldt@steptoe.com> bwinterfeldt@steptoe.com>, <mailto:council@gnso.icann.org> 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: <mailto:owner-council@gnso.icann.org> owner-council@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; <mailto:council@gnso.icann.org> 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" < <mailto:Jeff.Neuman@neustar.us> 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: <mailto:owner-council@gnso.icann.org> owner-council@gnso.icann.org[mailto:owner- <mailto:council@gnso.icann.org> council@gnso.icann.org] On Behalf OfWinterfeldt, Brian Sent: Tuesday, January 29, 2013 8:16 PM To: <mailto:council@gnso.icann.org> 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 <mailto:bwinterfeldt@steptoe.com> 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 <http://www.steptoe.com/> 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: <mailto:owner-council@gnso.icann.org> 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: <mailto:owner-council@gnso.icann.org> owner-council@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
Jonathan, I think you have done an excellent job with this letter and support sending it as it is. Best regards, Osvaldo El 31/01/2013, a las 10:08, "Jonathan Robinson" <jonathan.robinson@ipracon.com<mailto:jonathan.robinson@ipracon.com>> escribió: 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@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@crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; council@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@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@crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; council@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@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@crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; Winterfeldt, Brian; council@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@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@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@crediblecontext.com<mailto:john@crediblecontext.com> Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; council@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@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@ipracon.com<mailto:jonathan.robinson@ipracon.com>> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au<mailto:dave@difference.com.au>>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us<mailto:Jeff.Neuman@neustar.us>> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com<mailto:bwinterfeldt@steptoe.com>>,council@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@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@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@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@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@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@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@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@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 <Letter to ICANN GAC 31 January 2013.doc> ________________________________ El presente correo y cualquier posible archivo adjunto est� dirigido �nicamente al destinatario del mensaje y contiene informaci�n que puede ser confidencial. Si Ud. no es el destinatario correcto por favor notifique al remitente respondiendo anexando este mensaje y elimine inmediatamente el e-mail y los posibles archivos adjuntos al mismo de su sistema. Est� prohibida cualquier utilizaci�n, difusi�n o copia de este e-mail por cualquier persona o entidad que no sean las espec�ficas destinatarias del mensaje. ANTEL no acepta ninguna responsabilidad con respecto a cualquier comunicaci�n que haya sido emitida incumpliendo nuestra Pol�tica de Seguridad de la Informaci�n This e-mail and any attachment is confidential and is intended solely for the addressee(s). If you are not intended recipient please inform the sender immediately, answering this e-mail and delete it as well as the attached files. Any use, circulation or copy of this e-mail by any person or entity that is not the specific addressee(s) is prohibited. ANTEL is not responsible for any communication emitted without respecting our Information Security Policy.
Thanks Osvaldo & John B for additional support / input. Jonathan -----Original Message----- From: Novoa, Osvaldo [mailto:onovoa@Antel.com.uy] Sent: 31 January 2013 22:01 To: Jonathan Robinson Cc: Winterfeldt, Brian; Thomas Rickert; Mason Cole; john@crediblecontext.com; David Cake; Neuman, Jeff; council@gnso.icann.org Subject: Re: [council] potential annex to Jeff's draft letter Jonathan, I think you have done an excellent job with this letter and support sending it as it is. Best regards, Osvaldo El 31/01/2013, a las 10:08, "Jonathan Robinson" <jonathan.robinson@ipracon.com<mailto:jonathan.robinson@ipracon.com>> escribió: 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@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@crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; council@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@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@crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; council@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@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@crediblecontext.com<mailto:john@crediblecontext.com>; 'David Cake'; 'Neuman, Jeff'; Winterfeldt, Brian; council@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@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@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@crediblecontext.com<mailto:john@crediblecontext.com> Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; council@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@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@ipracon.com<mailto:jonathan.robinson@ipracon.com>> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au<mailto:dave@difference.com.au>>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us<mailto:Jeff.Neuman@neustar.us>> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com<mailto:bwinterfeldt@steptoe.com>>,council@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@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@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@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@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@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@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@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@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 <Letter to ICANN GAC 31 January 2013.doc> ________________________________ El presente correo y cualquier posible archivo adjunto est� dirigido �nicamente al destinatario del mensaje y contiene informaci�n que puede ser confidencial. Si Ud. no es el destinatario correcto por favor notifique al remitente respondiendo anexando este mensaje y elimine inmediatamente el e-mail y los posibles archivos adjuntos al mismo de su sistema. Est� prohibida cualquier utilizaci�n, difusi�n o copia de este e-mail por cualquier persona o entidad que no sean las espec�ficas destinatarias del mensaje. ANTEL no acepta ninguna responsabilidad con respecto a cualquier comunicaci�n que haya sido emitida incumpliendo nuestra Pol�tica de Seguridad de la Informaci�n This e-mail and any attachment is confidential and is intended solely for the addressee(s). If you are not intended recipient please inform the sender immediately, answering this e-mail and delete it as well as the attached files. Any use, circulation or copy of this e-mail by any person or entity that is not the specific addressee(s) is prohibited. ANTEL is not responsible for any communication emitted without respecting our Information Security Policy.
you have my vote for that! Berard --------- Original Message ---------Subject: RE: [council] potential annex to Jeff's draft letter From: "Jonathan Robinson" <jonathan.robinson@ipracon.com> Date: 1/30/13 1:06 pm To: "'Mason Cole'" <mcole@5x5com.com>, john@crediblecontext.com Cc: "'David Cake'" <dave@difference.com.au>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us>, "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com>, council@gnso.icann.org 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@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mason Cole Sent: 30 January 2013 20:28 To: john@crediblecontext.com Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; 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@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@ipracon.com> Date: 1/30/13 10:02 am To: "'David Cake'" <dave@difference.com.au>, "'Neuman, Jeff'" <Jeff.Neuman@neustar.us> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@steptoe.com>, 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@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@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@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 +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
I think we should go on with option 1, we cannot go on always extending our deadlines. Best regards, Osvaldo El 30/01/2013, a las 10:03, "Jonathan Robinson" <jonathan.robinson@ipracon.com<mailto:jonathan.robinson@ipracon.com>> escribió: 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@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@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@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@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@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@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@gnso.icann.org<mailto: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> [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 ________________________________ El presente correo y cualquier posible archivo adjunto est� dirigido �nicamente al destinatario del mensaje y contiene informaci�n que puede ser confidencial. Si Ud. no es el destinatario correcto por favor notifique al remitente respondiendo anexando este mensaje y elimine inmediatamente el e-mail y los posibles archivos adjuntos al mismo de su sistema. Est� prohibida cualquier utilizaci�n, difusi�n o copia de este e-mail por cualquier persona o entidad que no sean las espec�ficas destinatarias del mensaje. ANTEL no acepta ninguna responsabilidad con respecto a cualquier comunicaci�n que haya sido emitida incumpliendo nuestra Pol�tica de Seguridad de la Informaci�n This e-mail and any attachment is confidential and is intended solely for the addressee(s). If you are not intended recipient please inform the sender immediately, answering this e-mail and delete it as well as the attached files. Any use, circulation or copy of this e-mail by any person or entity that is not the specific addressee(s) is prohibited. ANTEL is not responsible for any communication emitted without respecting our Information Security Policy.
Brian, all, I have checked the respective minutes of the GNSO Council meetings and confirmed that both the motions on the resolution on the initiation of the PDP as well as the adoption of the charter of the WG were carried unanimously. Am I correct in understanding that the IPC, while it supported both the initiation of the PDP as well as the scope of the work as laid out in the charter, now wishes to have its opposition to the PDP reflected in the letter? Can you please clarify? Thanks Thomas Am 30.01.2013 um 02:15 schrieb "Winterfeldt, Brian" <bwinterfeldt@steptoe.com>:
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
<Draft Council Response re IGO-INGO PDP.doc>
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
participants (9)
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David Cake -
john＠crediblecontext.com -
Jonathan Robinson -
Mason Cole -
Neuman, Jeff -
Novoa, Osvaldo -
Thomas Rickert -
Volker Greimann -
Winterfeldt, Brian