Robin asked that this be forwarded to council. Regards David Begin forwarded message:

From: Robin Gross <robin@ipjustice.org> Subject: [PC-NCSG] memory refreshment on telling you circumventing community consensus policy was wrong Date: 10 April 2013 11:23:43 PM AWST To: Fadi Chehade <fadi.chehade@icann.org> Cc: NCSG-Policy Policy <PC-NCSG@ipjustice.org>, Ray Plzak <plzakr@gmail.com>, Steve Crocker <steve@shinkuro.com>, Jonathan Robinson <jonathan.robinson@ipracon.com>

Dear Fadi,

Since you told the GNSO Council on Sunday that no one had ever told you it would be wrong for you to do an end run around community consensus policy by going forward with the TMCH meetings in Brussels (and then LA), I thought I should refresh your memory of at least 2 people who told you that what you were setting out to do was wrong: a Stakeholder Group Chair and a Constituency Chair. Please see the emails below from myself and Bill Drake warning you about this to refresh your memory.

Because you told the GNSO Council that no one told you it was wrong, I request that my and Bill's emails below should also be forwarded to the GNSO Council to tell our side of the story.

Thank you, Robin Gross

Begin forwarded message:

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From: Robin Gross <robin@ipjustice.org> Date: October 26, 2012 5:11:14 PM PDT To: Fadi Chehade <fadi.chehade@icann.org> Cc: William Drake <william.drake@uzh.ch> Subject: Re: why holding the meeting in Brussels next week to consider unraveling community consensus policy is a really bad idea for ICANN

Dear Fadi,

Thank you for responding to Bill since much of what you say below is exactly the kind of clarification that I am asking for regarding this Brussels meeting.

I am extremely grateful to your commitment to uphold the proper development process and your commitment that the meeting will not re-open previously negotiated GNSO policy. However it is also important to understand that by "reviewing the IPC/BC proposal", the meeting *is* considering re-opening matters that were decided by the GNSO in the STI. So while you may have no intention of over-riding GNSO-approved policy, that is what several of the points of IPC/BC's proposal ask for and apparently it is on the agenda.

Furthermore, every person I have spoken with who knew about this meeting has stated a different understanding of its purpose, another reason a clarification from you to the community would be appropriate. One participant said his understanding was it was to "deal with only TMCH issues," another said it was only "an educational opportunity for ICANN staff to better understand how the technology and encryption work". When you and I spoke, you said it was "resolve IPR and new gtld issues and hammer out a framework for a solution". I understand that the IPC/BC are busy working now in 3 different working groups this week to develop new proposals to present to you next week on matters beyond technical or implementation details, and on both TMCH and URS. Several of these proposals have already been rejected by the community, but be prepared to see them again next week, when NCSG can't be there.

Once this meeting was scheduled, even if only originally for technical implementation white boarding, certain constituencies have seized upon it as an opportunity to hit you with new demands at a time when NCSG will not be there to present the other side of the argument. Without clear parameters placed around this meeting, aggressive lobbyists will use it accordingly, despite the intentions behind the originator that it not turn into a lobby session.

When you say you were inviting the "impacted constituencies" to Brussels, please understand that non-commercial users are every bit as impacted by these rules as the IPC. These rights are two sides of the same coin, and when you give more rights to the IPC, you are taking them away from the general public including noncommercial users -- and a balance must be struck in that bargain. NCSG is every bit as impacted as IPC on the implementation of these rules and should have equal participation rights in the discussion as commercial users.

Unlike the CSG, NCSG operates on a SG-wide basis on policy matters. It is explicitly stated in the NCSG Charter that policy positions are taken by the NCSG Policy Committee, not individual constituencies within the NCSG. So the NCSG Policy Committee is the proper venue to take policy proposals (such as the IPC-BC proposal) to for consideration in the NCSG. I know CSG operates based on constituencies, but NCSG develops policy positions on a SG-level so that difference should be factored in to how one approaches NCSG on policy.

Unfortunately no one in the CSG shared the IPC-BC's proposals with the NCSG Policy Committee, or with the NCUC, and I haven't seen any discussion of it on the NPOC mailing list either, so any CSG commitments to socialize their proposal with the rest of the GNSO are missing some gigantic holes. NCSG only knows about it because you called to tell me about the Brussels meeting and the related 8-point demand letter a couple days ago. Now we are scrambling to respond and will file a formal response early next week, but the community was circumvented and has yet to be approached by the proponents of last week's proposals.

It is unfortunate the Brussels meeting is happening without a balance of participation from all of the impacted stake-holders. And NCSG definitely will take you up on your offer to meet with us separately about these issues and we agree it is only appropriate for an 'equal time meeting' given these circumstances. We can hold your meeting with NCSG in the US, perhaps a couple weeks after after the Brussels meeting? (as soon as possible, but with many people in Baku I know that will be difficult).

I understand that you are not knowingly going into the Brussels meeting intending to change GNSO Policy, but others will, so I hope you will prepare accordingly, including make a clear announcement in advance that changing GNSO-approved-policy is not on the table for Brussels.

Of course I'm available to discuss this matter further at any time and look forward to scheduling the "equal time meeting" for NCSG at your earliest opportunity. Thank you very much.

Best, Robin

On Oct 26, 2012, at 2:37 PM, Fadi Chehade wrote:

...

Hi Bill,

Good to hear from you. I truly appreciate your comments. Let me clarify.

1. I am the one who called for the meeting. No one lobbied me on this matter. I received a high-level briefing on complex issues and realized I needed to learn more.

2. This is intended to be an informal white board brainstorming session to generate new thinking that advances TMCH discussions. The aim is to generate straw man proposals that can be shared with the broader community for discussion and consideration.

3. The session will include the following items (accorded equal time/focus): • Design implementation solution for trademark registration • Design implementation solution for trademark sunrise management • Design implementation solution for trademark claims management • Review IPC/BC proposal • Review framework for contract with the Clearinghouse providers with the parties in direct operation with the Clearinghouse. The contract will be publicly posted.

4. Given the informality of the session, I asked representatives of the constituencies directly impacted with the implementation and contractual implications of the Clearinghouse to help me develop a proposal.

5. I am personally facilitating the white board discussion (partly to learn and partly to birth a solution design rapidly).

6. On the issue of the RPMs: I wish to assure you that I am extremely respectful of the policy process and I will not come back with a solution that undermines the multi-stakeholder consensus without following proper process. This is my personal commitment to you and to our great community that has labored very hard to reach this point.

7. The new requests from the IPC/BC constituencies have been made public and I wanted to better understand them - so I used the opportunity we were all together to hear them out. I also personally contacted Robin on Skype to invite someone from your constituency on this item of the agenda -- so your community can participate initially and, more importantly, prepare for the public discussion on the matter. Given that the IPC/BC proposal discussion will only occupy a 1/5 of our two days (3 hours), i suggested that your representative can join via video-link from the ICANN office or Skype. Accommodation of time zones is always difficult and the arrival of certain parties is dictating the agenda timing but we will do our best to accommodate time zones of remote participants. I also offered Robin that if you all wished to meet with me first to share your views without the other stakeholders present, that I would be happy to take the time.

I hope the above helps clarify my intent and assure you that your input below was helpful and appreciated. I am here at your service to make this a success.

Sincerely, Fadi

p.s. if helpful, you are welcome to share my clarifications with your colleagues.

From: William Drake <william.drake@uzh.ch> Date: Thursday, October 25, 2012 6:42 AM To: Fadi Chehade <fadi.chehade@icann.org> Cc: "Gross, Robin" <robin@ipjustice.org> Subject: Re: [Kabob] why holding the meeting in Brussels next week to consider unraveling community consensus policy is a really bad idea for ICANN

Hello Fadi

I couldn't agree more with Robin's message. The repeatedly demonstrated penchant of powerful stakeholders to do end runs around the consensus based community processes whenever they don't get their maximum preferred outcomes has been one of the most sustained and pernicious threats to the multi-equal stakeholder model you champion. People who have issues should bring these back to the community processes from which they came, rather than undermine collective trust internally and leave ICANN (rightfully) open to all kinds of accusations externally. I believe the correct way to deal with such ploys would be to simply turn down requests for such meetings and ask for written inputs to which the community can respond asynchronously and in full.

Best,

Bill

On Oct 25, 2012, at 2:28 AM, Robin Gross wrote:

...

Dear Fadi,

Thank you for informing me of a possible meeting in Brussels next week to consider re-opening the issues related to trademark protections for new gtlds that were previously agreed to by the entire community. However, NCSG is extremely concerned about the proposed Brussels meeting and I don't believe any compromise hammered out in Brussels next week will withstand any serious public scrutiny.

Surely we learned something from the bad IRT experience and won't repeat it in Brussels next week with a one-sided, hastily thrown together at the last minute meeting to unravel years of negotiated compromise from many communities, and all to please a single interest. Changes proposed by the BC and IPC include big substantive changes to existing policy, not purely minor implementation details. It would be a huge mistake for ICANN to go ahead with the Brussels meeting next week and subject ICANN to criticism that GNSO policy is again thrown-out by last-minute, end-run lobbying by the strongest army.

Even if throwing-out GNSO agreed policy is not a concern, the lack of balance among impacted interests of the participants allowed to participate in Brussels, is another concern. Unbalanced inputs obviously lends to unbalanced outcomes. I understand that at least 4 members of the Intellectual Property Constituency plus several more from the Business Constituency will be present in the Brussels meeting to advocate for making these changes to the Applicant Guidebook. One single member from the Non-Commercial Stakeholders Group (NCSG) has been invited to attend -- that is already an imbalance of at least 7 in the CSG to 1 in the NCSG in the make-up of those invited to participate in the discussion over the expansion of rights of those 7 against that 1. 7 vs. 1 is a long way from equality among stakeholders. The lack of equality of participation in Brussels among the interests who negotiated the compromise this meeting is set to unravel is untenable.

And realistically, without travel support from ICANN, no members of the NCSG will be able to fly to Brussels next week to engage in these negotiations to re-work the rights of all registrants. Unlike the CSG which advocates for commercial industries, NCSG does not have any industry support that will fly NCSG members around the world to represent the rights of noncommercial users in ICANN policy. NCSG is, by definition, non-industry considerations of policy matters, so cannot match participation levels of enormous industries with huge budgets. NCSG's budget is $0 and always has been. No one pays for the public interest perspective to be at the table. Although NCSG represents the interests of all non-commercial users of the Internet, which is everyone at one moment or another of the day, these considerations won't make their way into the final policy because participation is prohibitively expensive for the noncommercial interest.

It is theoretically possible for someone from NCSG - on the other side of the world from Brussels - to join the meeting via a remote link in the middle of their night in their pajamas, but it is not possible to be effective when your body is in the middle of its night. You've worked at your real job all day and will have to again tomorrow. How to really participate in a meeting in the middle of the night? We can't. Not in a meaningful way. Thus there will be no meaningful participation by even a single NCSG member to represent the views of 1/4 of the GNSO - the part that represents the public interest in ICANN policy.

Without any meaningful representation from the public interest, or the rights of registrants, or the rights of nom-commercial users, this meeting is entirely one-sided and will be guaranteed to produce a one-sided result.

NCSG members have expressed concern to me over the lack of any kind of public announcement of this meeting by ICANN so they don't know if they can talk about it publicly and begin to get the public engaged in the discussion. How can we be considering holding a meeting to decide if we throw out years of hard fought compromises without a public announcement that there will be such a meeting and explaining its purpose and who is invited to participate? It is important for ICANN's commitment to transparency that the public be informed of this proposed discussion and its importance to the new gtld process and allowed to react.

NCSG members are concerned about the lack of clear purpose for this Brussels meeting - what is the agenda and what on the table for discussion? Is a chance to re-argue old policy battles? The GNSO makes policy recommendations. Not a group of trademark attorneys lobbying staff in such a way that no other voice will be heard, ensuring that the GNSO's policy recommendations will be cast aside. The entire GNSO unanimously approved the trademark recommendations in the STI Report - including the BC and IPC. All sectors of the community participated in those working groups and hammered out those compromises. Everyone lost something - that is supposed to be the nature of compromise. The STI work is now regarded as the cross-community poster-child example for how to do it right to achieve a community consensus. We can't throw that result out in favor of the disaster IRT model, a one-sided effort that produced proposals the community soundly rejected and the poster child example for "how NOT to make policy". Surely we have learned from that experience and won't try to reproduce it next week!

Going forward with the Brussels meeting only creates an incentive, even rewards those stakeholders who abandon their commitments, while punishes those who are willing to honor their commitments. It is so obvious that is a bad path for ICANN to go down - even with the enormous pressure of the trademark lobby. At some point someone at ICANN has to find the strength to tell the trademark industry "enough" to the constant clawing for greater and greater rights at the expense of other legitimate interests. Otherwise there will be no end to the lobbying and constant manipulations.

I'm not opposed to discussing these issues. But it shouldn't be in Brussels next week in a way that is sure to return a one-sided result. We can hold calls, video meetings, discussions on mailing lists, etc to hash-out any truly non-substantive implementation details. But by its exclusionary design, the Brussels meeting is sure to produce a one-sided result favoring the IPC and excluding the rights of registrants and non-commercial interests including the public interest. It will open a Pandora's box, set the precedent to lobby the CEO for changes to GNSO-agreed-to policy, and subject ICANN to criticism that things haven't really changed as we'd hoped. Let's learn from past mistakes (the IRT) and uphold community-wide consensus policies (the STI). This is a crucial issue for ICANN to get right and show it can follow its own rules and processes in the face of pressure.

Of course I'm happy to talk with you further about this proposed meeting and will continue to try to find some way to include a noncommercial user in it is some way. I just wanted to share with you the initial feedback I've received from members while we scramble to react to the IPC/BC proposal. Thanks again for alerting NCSG that this meeting had been proposed for next week, but please try to understand why we think it is a bad idea to actually hold this meeting in this way at this time. Thank you. Now back to the World Series.

All best, Robin

IP JUSTICE Robin Gross, Executive Director 1192 Haight Street, San Francisco, CA 94117 USA p: +1-415-553-6261 f: +1-415-462-6451 w: http://www.ipjustice.org e: robin@ipjustice.org

IP JUSTICE Robin Gross, Executive Director 1192 Haight Street, San Francisco, CA 94117 USA p: +1-415-553-6261 f: +1-415-462-6451 w: http://www.ipjustice.org e: robin@ipjustice.org

IP JUSTICE Robin Gross, Executive Director 1192 Haight Street, San Francisco, CA 94117 USA p: +1-415-553-6261 f: +1-415-462-6451 w: http://www.ipjustice.org e: robin@ipjustice.org

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