Thomas, Thank you for getting us started with the discussion of a motion for our next meeting. The general sense of the registry constituency is that we ought to delete the third clause, which provides: "3. that the Council requests the ICANN Board to implement appropriate safeguards for future new gTLD application rounds to ensure that Recommendation 19 is not eroded and that any rights granted to .BRAND TLDs cannot be used for scenarios other than those specifically covered by Specification 13.” (https://community.icann.org/display/gnsocouncilmeetings/Motions+8+May+2014) The rationale is that it is premature now to make suggestions about the rules for future rounds of TLDs. I am still hopeful that we can initiate a "Round 2 Working Group” in London, and we might take this issue up then, but we would prefer to leave future rules out of this particular motion. Bret -- Bret Fausett, Esq. • General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 • Playa Vista, CA 90094-2536 310-496-5755 (T) • 310-985-1351 (M) • bret@nic.sexy — — — — —

It’s actually even simpler than that: the brand owner can simply direct its affiliates to choose from registrar X,Y, and Z as a component of the licensing agreement. J. From: Volker Greimann <vgreimann@key-Systems.net<mailto:vgreimann@key-Systems.net>> Date: Tuesday, April 29, 2014 at 3:17 To: "Winterfeldt, Brian J." <brian.winterfeldt@kattenlaw.com<mailto:brian.winterfeldt@kattenlaw.com>>, GNSO Council List <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] A way forward on the Specification 13 question Hi Brian, I think you misunderstand. We do not assume a Single User-Single Registrant model in our statements. We are fuly aware that the Specification allows registrations also to affiliates and certain licensees. However, by crafting registration policies and accreditation rules carefully, dotBrand owners can differentiate. Just look at .WED for a registry almost no registrar is currently interested in carrying. Further, they can discriminate freely on the registrant level. Therefore, on a purely outcome-oriented level, it is our opinion that everything that is intended to be achieved by this language can already be achieved under the current rules. Finally, outcomes put aside, on a purely legalistic level, we are currently looking at contradicting languages. While Rec 19 recommends one thing, the proposed language sets out to create a loophole for just that thing Rec 19 seeks to prevent. This is inconsistency per definition, no matter how well-intentioned and worthwhile the intent is. To go beyond the language of Rec 19, additional policy work of some form is needed. As many constituencies have argued for a long time, the council does not have the role of deciding or setting aside policy on its own, it merely structures and channels the process. Best regards, Volker Greimann Am 28.04.2014 23:53, schrieb Winterfeldt, Brian J.: Dear James and Volker: Please let me know if I understand correctly the RrSG position based your comments below: · The proposed amendment to Specification 13 is inconsistent with policy recommendation 19 because no discrimination between registrars should be permitted; · Dot Brands possess the sole ability to execute bulk transfers; · Dot Brands, as registrants, are able to choose their own preferred registrars; and · Dot Brands can implement registration policies and requirements to limit the services provided by registrars to only eligible registrants. Forgive me if my encapsulation is wrong, but if I understand the RrSG position correctly, then I am concerned that it may gloss over some important nuances. First, the RrSG position seems based on an assumption that dot Brand registries will be the sole registrant for bulk transfer and registrar selection purposes, whereas Specification Thirteen clearly permits Affiliates and Trademark Licensees to register names as well, thus complicating matters a bit. Second, the RrSG position seems to encourage dot brand registries to discriminate among registrars using registration policies, or perhaps other restrictions or side agreements among Affiliates and Trademark Licensees, at their own peril. Absent any assurances from ICANN legal regarding the propriety of these indirect work-around suggestions, I imagine that dot Brands would be much more comfortable with the direct and formal provision in the Registry Agreement that is presently under consideration by the Council. As I understand it, that is why the provision is necessary in the first place—so dot Brands cannot be alleged to violate the Registry Agreement in accrediting only one or two preferred corporate registrars. I look forward to your responsive feedback. Thank you, Brian Brian J. Winterfeldt Head of Internet Practice Katten Muchin Rosenman LLP 2900 K Street NW, North Tower - Suite 200 / Washington, DC 20007-5118 p / (202) 625-3562 f / (202) 339-8244 brian.winterfeldt@kattenlaw.com<mailto:brian.winterfeldt@kattenlaw.com> / www.kattenlaw.com<http://www.kattenlaw.com/> Re: [council] A way forward on the Specification 13 question * To: Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>, Bret Fausett <bret@xxxxxxxx>, GNSO Council List <council@xxxxxxxxxxxxxx> * Subject: Re: [council] A way forward on the Specification 13 question * From: "James M. Bladel" <jbladel@xxxxxxxxxxx> * Date: Mon, 28 Apr 2014 16:12:52 +0000 * Accept-language: en-US * In-reply-to: <535E1AA3.6090807@key-systems.net<http://gnso.icann.org/mailing-lists/archives/council/msg16070.html>> * List-id: council@xxxxxxxxxxxxxx * Sender: owner-council@xxxxxxxxxxxxxx * Thread-index: Ac9U37pVNGMfDV+cTSyNSj0xaeNagAJSGHAAAKWMf0oAGtHogAAH4hAAAAWYJ4AAWH6IgAAEVA2A * Thread-topic: [council] A way forward on the Specification 13 question ________________________________ Just to add to Volker¹s comments: Registrars have had a vigorous discussion on this topic, and provided feedback from diverse viewpoints. But on the narrow question--whether Spec 13 is compatible with Rec 19‹we generally believe it is not. We recognize that dot-BRAND applicants and TLDs are a new part of the domain name ecosystem, and will have unique interests not shared by other TLDs. For example, we whole-heartedly agree with the proposed restrictions in Spec 13 on ICANN¹s ability to re-delegate a string that was formerly part of a dot-BRAND. However, we do not agree with the assertion that these TLDs must be formally allowed to discriminate among ICANN-accredited registrars. In response to the concerns raised by proponents of Spec 13, about being beholden to a single registrar/service provider, we would point out that, as the Registry and Registrant, they would possess sole authority to execute a bulk transfer to a new exclusive registrar/service provider under existing ICANN policy. Additionally, to address concerns about ³trusted² vs. ³untrusted² registrar/service providers, we would note that, as the Registrant, they would be able to choose the services of any registrar (or group of registrars) of their choosing, without the need to include this language in the Registry Agreement. In fact, this concern is only legitimate in the scenario where the dot-BRAND TLD later extends registrations to unaffiliated third parties. In summary, Registrars do not believe that this component of Spec 13 is compatible with Recommendation 19 of the original new gTLD policy, and that while dot-Brand are likely to encounter concerns unique to their new category of TLD, these issues can be addressed under existing policy. Thanks‹ J. From: Volker Greimann <vgreimann@xxxxxxxxxxxxxxx> Date: Monday, April 28, 2014 at 4:08 To: Bret Fausett <bret@xxxxxxxx>, GNSO Council List <council@xxxxxxxxxxxxxx> Subject: Re: [council] A way forward on the Specification 13 question Dear council-members, after extensive discussion of the question put before us, the RrSG has likewise found this excemption to be inconsistent with both the language as well as with the spirit of the recommendation. The question we have been asked is not whether we like the proposed exemption or can live with it, but rather a very simple one: Is the proposed incorporation of an ability to restrict nondiscriminatory registrar access to dotBrand TLDs is not consistent with the intent and wording of Recommendation 19, or is it not. The recommendation explicitly states that "Registries (...) may not discriminate among (ICANN) accredited registrars". In other words, the language of the Recommendation 19 contradicts the proposed exemption. Therefore, to find the additional language to be consistent with the recommendation requires substantial arguments to that effect that would allow such an interpretation. To find it consistent because one likes the result or can live with the result does not fulfill this requirement. For such cases where implementation would conflict with existing policy, further policy work adjusting or confirming the Policy Recommendation is required. The GNSO Council should take the lead in initiating this policy work. Beyond the grammatical inconsistency of the Recommendation, the intent of the Recommendation also indicates inconsistency. As detailed in the final report on the Introduction of New Generic Top Level Domains, the recommendation was supported by all GNSO Constituencies and Mrs Doria. According to the recollections of members of the new gTLD policy committee at the time the Recommendation was agreed upon, the concept of restricting registrar access was discussed in the context of community TLDs, which are in many ways similar to dotBrands. As registries have the ability under the Registry Agreement to restrict registrar access to their TLDs by establishing reasonable, nondiscriminatory accreditation criteria, it was ultimately agreed that discrimintation between registrars should not be permitted. In fact, the only public comment with regard to this recommendation came from the RyC, which was concerned that small, specialized registries may not be able to find a registrar to carry them. Note that this concern deals with a completely different problem. This concern led to the Vertical Integration Working group and the subsequent board decision allowing vertical integration. The idea of allowing only a few registrars does not appear in the Final Report. Finally, as registrants, dotBrands are perfectly free to discriminate between registrars. The Recommendation only deals with registries. By establishing certain registration requirements and policies, registries can further eliminate the ability of registrars to provide registry services beyond the eligible circle of registrants. Best regards, Volker Greimann Am 26.04.2014 16:54, schrieb Bret Fausett: Feedback: What we have been asked by the Board is to "advise ICANN as to whether the GNSO Council believes that this additional provision is inconsistent with the letter and intent of GNSO Policy Recommendation 19 on the Introduction of New Generic Top-Level Domains.² Policy Recommendation 19 reads: "Registries must use only ICANN accredited registrars in registering domain names and may not discriminate among such accredited registrars.² http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm The discussion section of this policy recommendation does not make for any exceptions for brands. Plainly, as I read the provisions of the .BRAND Specification 13, it is ³inconsistent with the letter and intent of GNSO Policy Recommendation 19.² Now, I personally happen to think that the draft Specification 13 for .BRAND TLDs is a tightly drafted, well-considered exception for a specialized type of TLD that was not being considered carefully when Recommendation 19 was prepared. BUT, it is definitely inconsistent with the policy recommendation we made in August, 2007. Let¹s think about what this means. -- Bret Fausett, Esq. € General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 € Playa Vista, CA 90094-2536 310-496-5755 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-496-5755 FREE end_of_the_skype_highlighting (T) € 310-985-1351 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-985-1351 FREE end_of_the_skype_highlighting (M) € bret@xxxxxxxxxxxxxxx ‹ ‹ ‹ ‹ ‹ On Apr 26, 2014, at 5:14 AM, Thomas Rickert <rickert@xxxxxxxxxxx> wrote: Jonathan, I do hope to get more feedback. So far, I do not really have information to act on, but I am standing by to do what is necessary to meet the deadline. Thanks, Thomas Am 26.04.2014 um 10:29 schrieb Jonathan Robinson <jrobinson@xxxxxxxxxxxx>: Thanks Thomas, You will have seen that the motion deadline is Monday 28th 23h59 UTC so, assuming we will meet the 45 day deadline, we will need a motion on Monday. Let¹s hope we can do that in such a way as to reflect the feedback you have and retain flexibility to modify (if necessary) as we receive further feedback. Let¹s you and I talk on Monday. Jonathan From: Thomas Rickert [mailto:rickert@xxxxxxxxxxx] Sent: 25 April 2014 20:38 To: GNSO Council List Subject: Fwd: [council] A way forward on the Specification 13 question All, this is a gentle reminder to provide me with preliminary feedback. The motions and documents deadline is approaching rapidly and I have only received one response from the registrars so far. Also, I have reached out to Marilyn Cade (CBUC), Tony Holmes (ISPC), Kristina Rosette (IPC), Robin Gross (NCUC), Bruce Tonkin (Registrars) and Ken Stubbs (Registries) as they were listed in the final report of the PDP to cover their respective groups and since they hopefully have first-hand information on the discussions at the time. More people such as Avri, Bret and Alan are still here - please to chime in and respond. Thanks and kind regards, Thomas Anfang der weitergeleiteten Nachricht: Von: Thomas Rickert <rickert@xxxxxxxxxxx> Betreff: Aw: [council] A way forward on the Specification 13 question Datum: 22. April 2014 14:40:58 MESZ An: jrobinson@xxxxxxxxxxxx Kopie: GNSO Council List <council@xxxxxxxxxxxxxx> All, thanks to Jonathan for putting together and sending out the below message. I am more than happy to assist with making sure we get an answer prepared in time. Can I ask Councillors to get back to me offlist (in order not to swamp the list) with a status of the discussions with your respective groups? Certainly, one response per group is sufficient. If there is anything I can help with to facilitate your discussions, please let me know. The earlier I am provided with information on what direction your answers will take, the sooner I will be able to draft a motion and a letter to the NGPC for your review. Thanks, Thomas Am 10.04.2014 um 19:10 schrieb Jonathan Robinson <jrobinson@xxxxxxxxxxxx>: All, Following on from previous dialogue and the Council meeting today, it seems to me that the way forward is to focus as closely as possible on the question being asked and to make every attempt to respond in a timely and effective manner. This means that, assuming it is required, a motion to be voted on needs to be submitted to the Council by 28 April for consideration at the 8 May 2014 meeting. We are being asked (full letter attached for reference) to 1. Š advise ICANN as to whether the GNSO Council believes that this additional provision is inconsistent with the letter and intent of GNSO Policy Recommendation 19 on the Introduction of New Generic Top-Level Domains; or 2. advise ICANN that the GNSO Council needs additional time for review, including an explanation as to why additional time is required. I believe that the question to take to your respective stakeholder groups / constituencies is therefore: Is this additional provision inconsistent with the letter and intent of GNSO Policy Recommendation 19? It will be helpful to have as clear as possible an answer as soon as possible along the following lines: · No. It is not inconsistent (Š with the letter and intent Š). and · Possibly, an explanation as to why it is not inconsistent. and · Are there any other qualifying points that the Council should make in its response to the NGPC? OR · Yes. It is inconsistent ( Š with the letter and intent Š ). and · Possibly, an explanation as to why it is inconsistent. and · Is there a process by which the Council could assist the NGPC in resolving this issue and in what time frame? Please can you all act as quickly as possible to provide an answer to the above. The timing is very tight. We already have an indication of where the BC & the IPC stand on this i.e. no, it is not inconsistent. Someone will need to lead on drafting a motion (for submission to the Council on or before 28 April) and an associated letter to the NGPC. Given the time constraints, this should probably take place in parallel with the consultation work. Can we please have a volunteer to lead this effort and ensure it gets done? Thomas? I have tried to simplify and focus the problem here in the interest of providing a representative, timely and effective response. I trust that in doing so I have not discounted any material points in the discussion to date. Please correct me if I have. Jonathan -- Bret Fausett, Esq. € General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 € Playa Vista, CA 90094-2536 310-496-5755 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-496-5755 FREE end_of_the_skype_highlighting (T) € 310-985-1351 begin_of_the_skype_highlighting [skype-ie-addon-data://res/numbers_button_skype_logo.png] 310-985-1351 FREE end_of_the_skype_highlighting (M) € bret@xxxxxxxxxxxxxxx ‹ ‹ ‹ ‹ ‹ -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. 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Having reflected on the policy implications of the proposed motion, I would like to propose to amend the resolved clauses of the motion to read as follows: ----- 1. that the */proposed /*right to only use up to three exclusive registrars, as contained in Specification 13 is inconsistent with Recommendation 19 as (i) the language of this recommendation of the final report of the GNSO does not stipulate any exceptions from the requirements to treat registrars in a non-discriminatory fashion and (ii) the GNSO new gTLDs Committee discussed potential exceptions at the time, but did not include them in its recommendations, which is why the lack of an exception cannot be seen as an unintended omission, but a deliberate policy statement; 2. that the Council does not object to the implementation of Specification 13 /*subject to the removal of the clause allowing a Registry */*/Operator to designate up to three exclusive Registrars. /* 3. that the Council requests the ICANN Board to implement appropriate safeguards for /*this and */future new gTLD application rounds to ensure that Recommendation 19 is not eroded and that any rights granted to .BRAND TLDs cannot be used for scenarios other than those specifically covered by Specification 13; 4. that the Council reserves the right to initiate a policy development process, potentially resulting in Consensus Policy affecting both existing and future TLDs, */to assess whether /**/exceptions to Recommendation 19 /**/*/or any subsequent provisions /*should be allowable in this circumstance, and under what criteria future requests would be considered. /* ----- Changed/added language is marked in bold-cursive for easier reference. The amendments take into consideration the various concerns voiced by many individuals including myself on the council list in the past weeks. The amended motion would clarify the policy position of the council while at the same time creating a way forward for the community to find a practical solution. It avoids the hollowing-out of policy recommendations at the request of any one interest but offers a constructive path to address any concerns with the existing policy recommendation. Best regards, Volker Greimann Am 07.05.2014 17:21, schrieb Bret Fausett:

I see that the motion does not yet have a second, so I would like to second the motion for tomorrow’s meeting.

-- Bret Fausett, Esq. • General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 • Playa Vista, CA 90094-2536 310-496-5755 (T) • 310-985-1351 (M) • bret@uniregistry.com <mailto:bret@uniregistry.com> — — — — —

Hi Avri, as no policy exception would be required if both the amendment and the motion pass, there would not be a need for a temporary spec. I would be very cautious about allowing an exemption on a temporary basis as such temporary solutions have a tendency to solidify. Best, Volker Am 08.05.2014 15:41, schrieb Avri Doria:

Hi,

Would your amendments make Spec 13 a temporary measure to be eliminated/modified if the PDP recommended it? On first reading I did not think so. I think that might also be an important consideration.

avri

On 08-May-14 09:13, Volker Greimann wrote:

...

Having reflected on the policy implications of the proposed motion, I would like to propose to amend the resolved clauses of the motion to read as follows:

----- 1. that the */proposed /*right to only use up to three exclusive registrars, as contained in Specification 13 is inconsistent with Recommendation 19 as (i) the language of this recommendation of the final report of the GNSO does not stipulate any exceptions from the requirements to treat registrars in a non-discriminatory fashion and (ii) the GNSO new gTLDs Committee discussed potential exceptions at the time, but did not include them in its recommendations, which is why the lack of an exception cannot be seen as an unintended omission, but a deliberate policy statement;

2. that the Council does not object to the implementation of Specification 13 /*subject to the removal of the clause allowing a Registry */*/Operator to designate up to three exclusive Registrars. /*

3. that the Council requests the ICANN Board to implement appropriate safeguards for /*this and */future new gTLD application rounds to ensure that Recommendation 19 is not eroded and that any rights granted to .BRAND TLDs cannot be used for scenarios other than those specifically covered by Specification 13;

4. that the Council reserves the right to initiate a policy development process, potentially resulting in Consensus Policy affecting both existing and future TLDs, */to assess whether /**/exceptions to Recommendation 19 /**/*/or any subsequent provisions /*should be allowable in this circumstance, and under what criteria future requests would be considered. /*

-----

Changed/added language is marked in bold-cursive for easier reference.

The amendments take into consideration the various concerns voiced by many individuals including myself on the council list in the past weeks. The amended motion would clarify the policy position of the council while at the same time creating a way forward for the community to find a practical solution. It avoids the hollowing-out of policy recommendations at the request of any one interest but offers a constructive path to address any concerns with the existing policy recommendation.

Best regards,

Volker Greimann

Am 07.05.2014 17:21, schrieb Bret Fausett:

...

I see that the motion does not yet have a second, so I would like to second the motion for tomorrow’s meeting.

-- Bret Fausett, Esq. • General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 • Playa Vista, CA 90094-2536 310-496-5755 (T) • 310-985-1351 (M) • bret@uniregistry.com <mailto:bret@uniregistry.com> — — — — —

Hi, Apologies, but I find myself still confused by Volker's ammendment as it still allows for:

1. Registry Operator is exempt from complying with the requirements of Specification 9 to the Agreement, notwithstanding the provisions of Section 6 of Specification 9.

What does this exemption entail? avri On 08-May-14 10:17, Avri Doria wrote:

Thank you

On 08-May-14 09:51, Volker Greimann wrote:

...

Hi Avri,

as no policy exception would be required if both the amendment and the motion pass, there would not be a need for a temporary spec. I would be very cautious about allowing an exemption on a temporary basis as such temporary solutions have a tendency to solidify.

Best,

Volker

Am 08.05.2014 15:41, schrieb Avri Doria:

...

Hi,

Would your amendments make Spec 13 a temporary measure to be eliminated/modified if the PDP recommended it? On first reading I did not think so. I think that might also be an important consideration.

avri

On 08-May-14 09:13, Volker Greimann wrote:

...

Having reflected on the policy implications of the proposed motion, I would like to propose to amend the resolved clauses of the motion to read as follows:

----- 1. that the */proposed /*right to only use up to three exclusive registrars, as contained in Specification 13 is inconsistent with Recommendation 19 as (i) the language of this recommendation of the final report of the GNSO does not stipulate any exceptions from the requirements to treat registrars in a non-discriminatory fashion and (ii) the GNSO new gTLDs Committee discussed potential exceptions at the time, but did not include them in its recommendations, which is why the lack of an exception cannot be seen as an unintended omission, but a deliberate policy statement;

2. that the Council does not object to the implementation of Specification 13 /*subject to the removal of the clause allowing a Registry */*/Operator to designate up to three exclusive Registrars. /*

3. that the Council requests the ICANN Board to implement appropriate safeguards for /*this and */future new gTLD application rounds to ensure that Recommendation 19 is not eroded and that any rights granted to .BRAND TLDs cannot be used for scenarios other than those specifically covered by Specification 13;

4. that the Council reserves the right to initiate a policy development process, potentially resulting in Consensus Policy affecting both existing and future TLDs, */to assess whether /**/exceptions to Recommendation 19 /**/*/or any subsequent provisions /*should be allowable in this circumstance, and under what criteria future requests would be considered. /*

-----

Changed/added language is marked in bold-cursive for easier reference.

The amendments take into consideration the various concerns voiced by many individuals including myself on the council list in the past weeks. The amended motion would clarify the policy position of the council while at the same time creating a way forward for the community to find a practical solution. It avoids the hollowing-out of policy recommendations at the request of any one interest but offers a constructive path to address any concerns with the existing policy recommendation.

Best regards,

Volker Greimann

Am 07.05.2014 17:21, schrieb Bret Fausett:

...

I see that the motion does not yet have a second, so I would like to second the motion for tomorrow’s meeting.

-- Bret Fausett, Esq. • General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 • Playa Vista, CA 90094-2536 310-496-5755 (T) • 310-985-1351 (M) • bret@uniregistry.com <mailto:bret@uniregistry.com> — — — — —

Hi, Yes, I understood it was the Code of Conduct, I am still not certain what being a priori exempt from the Code of Conduct entails for the .brands or why it is appropriate. Thanks for helping with my confusion. avri On 08-May-14 10:49, Volker Greimann wrote:

Hi Avri,

spec 9 is the code of conduct, which includes its own exemption language already. We are basically of the opinion that the exemption from Spec 9 is sufficient to achieve many, if not all, of the same goals this new exemption is trying to achieve, but with less breaking of policy porcellain.

Volker

Am 08.05.2014 16:35, schrieb Avri Doria:

...

Hi,

Apologies, but I find myself still confused by Volker's ammendment as it still allows for:

...

1. Registry Operator is exempt from complying with the requirements of Specification 9 to the Agreement, notwithstanding the provisions of Section 6 of Specification 9.

What does this exemption entail?

avri

On 08-May-14 10:17, Avri Doria wrote:

...

Thank you

On 08-May-14 09:51, Volker Greimann wrote:

...

Hi Avri,

as no policy exception would be required if both the amendment and the motion pass, there would not be a need for a temporary spec. I would be very cautious about allowing an exemption on a temporary basis as such temporary solutions have a tendency to solidify.

Best,

Volker

Am 08.05.2014 15:41, schrieb Avri Doria:

...

Hi,

Would your amendments make Spec 13 a temporary measure to be eliminated/modified if the PDP recommended it? On first reading I did not think so. I think that might also be an important consideration.

avri

On 08-May-14 09:13, Volker Greimann wrote:

...

Having reflected on the policy implications of the proposed motion, I would like to propose to amend the resolved clauses of the motion to read as follows:

----- 1. that the */proposed /*right to only use up to three exclusive registrars, as contained in Specification 13 is inconsistent with Recommendation 19 as (i) the language of this recommendation of the final report of the GNSO does not stipulate any exceptions from the requirements to treat registrars in a non-discriminatory fashion and (ii) the GNSO new gTLDs Committee discussed potential exceptions at the time, but did not include them in its recommendations, which is why the lack of an exception cannot be seen as an unintended omission, but a deliberate policy statement;

2. that the Council does not object to the implementation of Specification 13 /*subject to the removal of the clause allowing a Registry */*/Operator to designate up to three exclusive Registrars. /*

3. that the Council requests the ICANN Board to implement appropriate safeguards for /*this and */future new gTLD application rounds to ensure that Recommendation 19 is not eroded and that any rights granted to .BRAND TLDs cannot be used for scenarios other than those specifically covered by Specification 13;

4. that the Council reserves the right to initiate a policy development process, potentially resulting in Consensus Policy affecting both existing and future TLDs, */to assess whether /**/exceptions to Recommendation 19 /**/*/or any subsequent provisions /*should be allowable in this circumstance, and under what criteria future requests would be considered. /*

-----

Changed/added language is marked in bold-cursive for easier reference.

The amendments take into consideration the various concerns voiced by many individuals including myself on the council list in the past weeks. The amended motion would clarify the policy position of the council while at the same time creating a way forward for the community to find a practical solution. It avoids the hollowing-out of policy recommendations at the request of any one interest but offers a constructive path to address any concerns with the existing policy recommendation.

Best regards,

Volker Greimann

Am 07.05.2014 17:21, schrieb Bret Fausett: > I see that the motion does not yet have a second, so I would > like to second the motion for tomorrow’s meeting. > > -- Bret Fausett, Esq. • General Counsel, Uniregistry, Inc. > 12025 Waterfront Drive, Suite 200 • Playa Vista, CA > 90094-2536 310-496-5755 (T) • 310-985-1351 (M) • > bret@uniregistry.com <mailto:bret@uniregistry.com> — — — — — > >

Thanks Tony, Regarding your second point below, I agree on the need for speed at times. My understanding is that developing this is "in scope" for the Policy & Implementation WG as opposed to the SCI. It is something we have begun to refer to as "Policy Advice" or "Policy Guidance" and, as yet, do not have wholly satisfactory mechanisms to deal with it. We can, of course, consult within the GNSO as we have attempted to do on this issue. Jonathan -----Original Message----- From: Tony Holmes [mailto:tonyarholmes@btinternet.com] Sent: 08 May 2014 15:22 To: council@gnso.icann.org Subject: RE: [council] A way forward on the Specification 13 question I agree, it's an important point that Avri has raised and I would also seek clarity on that. I'd also like to support the point that Volker made that we need a faster way to resolve these issues in the future as we're bound by the policy-making tools we have at our disposal. Is that something we could refer to the SCI to look at? Tony -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: 08 May 2014 14:42 To: council@gnso.icann.org Subject: Re: [council] A way forward on the Specification 13 question Hi, Would your amendments make Spec 13 a temporary measure to be eliminated/modified if the PDP recommended it? On first reading I did not think so. I think that might also be an important consideration. avri On 08-May-14 09:13, Volker Greimann wrote:

Having reflected on the policy implications of the proposed motion, I would like to propose to amend the resolved clauses of the motion to read as follows:

----- 1. that the */proposed /*right to only use up to three exclusive registrars, as contained in Specification 13 is inconsistent with Recommendation 19 as (i) the language of this recommendation of the final report of the GNSO does not stipulate any exceptions from the requirements to treat registrars in a non-discriminatory fashion and (ii) the GNSO new gTLDs Committee discussed potential exceptions at the time, but did not include them in its recommendations, which is why the lack of an exception cannot be seen as an unintended omission, but a deliberate policy statement;

2. that the Council does not object to the implementation of Specification 13 /*subject to the removal of the clause allowing a Registry */*/Operator to designate up to three exclusive Registrars. /*

3. that the Council requests the ICANN Board to implement appropriate safeguards for /*this and */future new gTLD application rounds to ensure that Recommendation 19 is not eroded and that any rights granted to .BRAND TLDs cannot be used for scenarios other than those specifically covered by Specification 13;

4. that the Council reserves the right to initiate a policy development process, potentially resulting in Consensus Policy affecting both existing and future TLDs, */to assess whether /**/exceptions to Recommendation 19 /**/*/or any subsequent provisions /*should be allowable in this circumstance, and under what criteria future requests would be considered. /*

-----

Changed/added language is marked in bold-cursive for easier reference.

The amendments take into consideration the various concerns voiced by many individuals including myself on the council list in the past weeks. The amended motion would clarify the policy position of the council while at the same time creating a way forward for the community to find a practical solution. It avoids the hollowing-out of policy recommendations at the request of any one interest but offers a constructive path to address any concerns with the existing policy recommendation.

Best regards,

Volker Greimann

Am 07.05.2014 17:21, schrieb Bret Fausett:

...

I see that the motion does not yet have a second, so I would like to second the motion for tomorrow's meeting.

-- Bret Fausett, Esq. . General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 . Playa Vista, CA 90094-2536 310-496-5755 (T) . 310-985-1351 (M) . bret@uniregistry.com <mailto:bret@uniregistry.com> - - - - -

On 08-May-14 10:22, Tony Holmes wrote:

I'd also like to support the point that Volker made that we need a faster way to resolve these issues in the future as we're bound by the policy-making tools we have at our disposal. Is that something we could refer to the SCI to look at?

I agree, we need some additonal processes. Not short cuts through the PDP as has been suggested in the past but some specific tools for making bottom-up decisions quickly upon request. It is a good topic for the SCI, for the GNSO review, and for the P&I Working group. avri

Volker, Your points are well-made, but the circumstances that led Recommendation 19 to be modified/clarified/excepted by Specification 13 suggest broader implications for all future PDP work. Our back-and-forth on the list shows that when the policies are specifically prescriptive, it is easy to go astray once the real-world elements of the marketplace then test them. But if we focus on outcomes, there is more latitude to act in the face of circumstance -- as long as the result is in line with our intent. In the current case, for example, it was understood though not prescriptively stated that brand tlds were likely to be different players than most gtlds. If the policy work acknowledged that and made it clear that those differences were to be accommodated within the framework of a set of rules governing registrar relationships, then whether the names were open to all comers or to a short list of, say, three, would not matter. Only the nature of the relationship between the registry and registrars would. This is where I am on the question of 19/13. Though I remain open to whatever amendments may be offered today, even without change the motion is a rational response that should be supported. Cheers, Berard --------- Original Message --------- Subject: Re: [council] A way forward on the Specification 13 question From: "Volker Greimann" <vgreimann@key-Systems.net> Date: 5/8/14 6:13 am To: "Bret Fausett" <bret@nic.sexy>, "council@gnso.icann.org" <council@gnso.icann.org> Having reflected on the policy implications of the proposed motion, I would like to propose to amend the resolved clauses of the motion to read as follows: ----- 1. that the proposed right to only use up to three exclusive registrars, as contained in Specification 13 is inconsistent with Recommendation 19 as (i) the language of this recommendation of the final report of the GNSO does not stipulate any exceptions from the requirements to treat registrars in a non-discriminatory fashion and (ii) the GNSO new gTLDs Committee discussed potential exceptions at the time, but did not include them in its recommendations, which is why the lack of an exception cannot be seen as an unintended omission, but a deliberate policy statement; 2. that the Council does not object to the implementation of Specification 13 subject to the removal of the clause allowing a Registry Operator to designate up to three exclusive Registrars. 3. that the Council requests the ICANN Board to implement appropriate safeguards for this and future new gTLD application rounds to ensure that Recommendation 19 is not eroded and that any rights granted to .BRAND TLDs cannot be used for scenarios other than those specifically covered by Specification 13; 4. that the Council reserves the right to initiate a policy development process, potentially resulting in Consensus Policy affecting both existing and future TLDs, to assess whether exceptions to Recommendation 19 or any subsequent provisions should be allowable in this circumstance, and under what criteria future requests would be considered. ----- Changed/added language is marked in bold-cursive for easier reference. The amendments take into consideration the various concerns voiced by many individuals including myself on the council list in the past weeks. The amended motion would clarify the policy position of the council while at the same time creating a way forward for the community to find a practical solution. It avoids the hollowing-out of policy recommendations at the request of any one interest but offers a constructive path to address any concerns with the existing policy recommendation. Best regards, Volker Greimann Am 07.05.2014 17:21, schrieb Bret Fausett: I see that the motion does not yet have a second, so I would like to second the motion for tomorrow's meeting. -- Bret Fausett, Esq. • General Counsel, Uniregistry, Inc. 12025 Waterfront Drive, Suite 200 • Playa Vista, CA 90094-2536 310-496-5755 (T) • 310-985-1351 (M) • bret@uniregistry.com - - - - -