Hello all, Thank you to the colleagues who have reached out to me privately to help me understand some of your concerns, including those about preventing mission-creep for ICANN and specifically avoiding the concept of “content” (on websites). With those concerns in mind, might I suggest we edit the recommendation as follows: Absent any legal requirements to the contrary, disclosure cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be solely based on the fact that the request is founded on alleged intellectual property infringement in content on a website associated with the domain name. Many thanks to colleagues who have provided input and suggestions, and thank you all for your consideration. Brian J. King Director of Internet Policy and Industry Affairs, IP Group T +1 443 761 3726 clarivate.com [D39D107B] From: King, Brian Sent: Tuesday, June 30, 2020 7:08 PM To: EPDP <gnso-epdp-team@icann.org> Subject: Recommendation #6 Hello EPDP Colleagues, Apologies that I had to leave the call about 15 minutes early today. I was confused and disappointed to read in the recap that after I left the call that some folks wanted to strike the Rec 6 language which previously prohibited CPs from denying requests solely because they pertain to intellectual property content on a website. Please help me understand: why do CPs need to have the ability to deny requests solely because the complained activity is occurring on a website? Insisting on the need to deny requests on this basis alone has very bad optics, especially when CPs already have broad discretion to deny requests based on a subjective balancing test, which Compliance has committed not to second-guess, and when this has already been agreed in the Privacy/Proxy policy. This may very likely be a “hill to die on” for the IPC. I should note that replacing “denied” with some form of “disposition” language was not agreed previously and is not acceptable to the IPC. It should go without saying that we cannot agree to remove IP from the list of categories for which CPs may otherwise automate at their voluntary discretion. I would be surprised if CPs wanted to limit their own flexibility in this regard either. To be clear, we are not trying to expand ICANN’s remit to include policing website content, nor are we saying that IP-related requests must be approved, nor are we asking CPs to suspend or delete domain names based on content. We are merely attempting to reflect the language that was agreed in the Privacy/Proxy policy, and which addresses a huge problem for our Constituency – that far too frequently IP requests are swept aside as “IP = UDRP needed = case closed.” While we are happy to engage in more substantive debate about that separately in the DNS Abuse context, this is a very different conversation. In this conversation, we cannot accept an outcome that allows denial of access to the data needed for self-help solely because the substantive issue is IP-related. It is true that the web host is often not the same entity as the registrar, and the web host is often better suited to address content-related issues. When addressing content issue enforcement, IP owners should go to the web host. However, when domain names are used in connection with content on a website and IP owners need RDS data to enforce IP rights with the domain name registrant, this is within ICANN’s remit. We agreed on this language during our face-to-face meeting in January, and it stood for months thereafter. Given its benign impact on CPs and its overwhelming importance to the IPC, I can’t understand how or why the IPC is expected to agree to remove it now. Please, let’s put this back, put it aside, and focus our work on coming to consensus on real issues. Brian J. King Director of Internet Policy and Industry Affairs, IP Group T +1 443 761 3726 clarivate.com [D39D107B] Confidentiality note: This e-mail may contain confidential information from Clarivate. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this e-mail is strictly prohibited. If you have received this e-mail in error, please delete this e-mail and notify the sender immediately.
