May 2016 - Gnso-igo-ingo-crp

Mp3, Attendance and AC Chat IGO-INGO WG Call 19 May 2016
by Michelle DeSmyter May 19, 2016

May 19, 2016

Dear All, Please find the attendance and MP3 recording for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 19 May 2016 at 16:00 UTC at: http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-19may16-en.mp3 <http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-19may16-en.mp3> On page: http://gnso.icann.org/en/group-activities/calendar#may The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<http://gnso.icann.org/en/group-activities/calendar#nov> Attendees: Professor Edward Swain - Individual George Kirikos - Individual Jim Bikoff - IPC Mason Cole - RySG Paul Tattersfield - Individual Petter Rindforth - IPC Phil Corwin - BC Jay Chapman - Individual Apologies: Paul Keating - NCUC ICANN staff: Steve Chan Berry Cobb Mary Wong Michelle DeSmyter ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/ Wiki page: https://community.icann.org/x/0gmOAw Thank you. Kind regards, Michelle DeSmyter ------------------------------- Adobe Connect chat transcript for Thursday, 19 May 2016 Michelle DeSmyter:Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the Thursday, 19 May 2016. Mary Wong:Welcome, George! George Kirikos:Hi Mary. George Kirikos:Hi Jay. Jay Chapman:Hello George, Hi Mary & Michelle. I'm not on phone line - just listening in Mary Wong:Hello Jay! Michelle DeSmyter:sounds good - welcome Jay George Kirikos:Welcome Petter. Petter Rindforth:Hi George George Kirikos:I think attendance would be higher if there was a lottery held each meeting, e.g. $10 Amazon gift certificates. :-) Mary Wong:@George, are you offering to doante? :) George Kirikos:I don't have as much funds, as say ICANN. (see IRS Form 990) :-) George Kirikos:Welcome Paul. Mary Wong:Haha Paul Tattersfield:Hi George, everyone George Kirikos:I think we have to wait for the professor. Petter Rindforth: welcome! Jay Chapman:Welcome Professor Swain! George Kirikos:Should we put the report into the Adobe screen? George Kirikos:(draft report, even) Mary Wong:Nope, not on SOI :) Jay Chapman:SOI Update: I am a memeber of the BC now Philip Corwin:Finally in the room Jay Chapman:should be in my SOI Mary Wong:Thanks, Jay George Kirikos:I suppose the IGOs didn't submit any comments to us today? (and no one showed up) Mary Wong:@George, no, we have not received anything from the IGOs. George Kirikos:Phil has his hand up. George Kirikos:Which is the waiver for everyone, not targeted at IGOs. George Kirikos:Certainly non-IGOs would love to not agree to the waiver too. George Kirikos:(or, ore precisely, the mutual jurisdiction) Mary Wong:@George, yes, but that may also be why they are open to binding arbitration as the appelllae mechanism. Mary Wong:*appellate George Kirikos:They'd have been vulnerable in the alternative, had they initiated in court initially (instead of going the UDRP route). George Kirikos:Privity of contract -- good phrase to note. Mary Wong:We have no ability to set terms for Registration Agreements other than by amendment/addition to the Registrar Accreditation Agreement and/or through binding Consensus Policy. George Kirikos:If Jim can send that case to the mailing list, that would be useful. Petter Rindforth:agree George Kirikos:When will we get the final memo? George Kirikos:(after revisions) George Kirikos:(maybe a few weeks?) George Kirikos:Great. Mary Wong:Note that we have a WG meeting scheduled for Helsinki on June 27 George Kirikos:That would allow the IGOs to give their final feedback, if any, too. George Kirikos:And/or the GAC. George Kirikos:Do we know which members (countries) of the GAC have the "ear" of the IGOs? (i.e. the GAC speaks as one body, but practically, it's likely just a handful of countries that have a concern) Mary Wong:I don't know the answer to that, George George Kirikos:Since none of them have participated with us, it makes it even harder to do that outreach, etc. Mary Wong:We (staff) can certainly reach out to our contacts for the IGO/GAC "small group" Mary Wong:It may be just as important to have Board members participate in our Helsinki session, frankly. Mary Wong:Will do, Petter and everybody. George Kirikos:Perhaps the professor should be sent the transcript of today's call, too, to help his memory. George Kirikos:(and/or the MP3) Mary Wong:If Prof Swaine gets us his final memo by mid-June we can shoot for a pre0Helsinki WG meeting on 23 June George Kirikos:Maybe last week's call, too. Mary Wong:@George, we will make sure he has them, thanks George Kirikos:Great work, everyone. Have a nice day! Philip Corwin:Bye all Jay Chapman:Thanks, All Mary Wong:Thanks and bye! Paul Tattersfield:Thank you bye all

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Motion to Dismiss
by Bikoff, James May 19, 2016

May 19, 2016

All, attached is a copy of the decision I mentioned during our call today. Best, Jim James L. Bikoff<http://www.sgrlaw.com/attorneys/profiles/bikoff-james/> | Attorney at Law 202-263-4341 phone 202-263-4329 fax www.sgrlaw.com<http://www.sgrlaw.com> jbikoff(a)sgrlaw.com<mailto:jbikoff@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 [cid:image019f74.JPG@c41b462d.498ce55d]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.

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Welcome to New Council Liaison Keith Drazek
by Phil Corwin May 12, 2016

May 12, 2016

On this morning's GNSO Council call, Keith Drazek of Verisign and a Councilor for the Registry Stakeholder Group volunteered to be our new Liaison to Council so as to keep them informed of our activities. I have already taken steps to bring Keith up to date on our progress and remaining work. He has great expertise and experience and I know we all welcome him to our WG. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey

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Mp3, Attendance & AC Chat / IGO-INGO Curative Rights Protection PDP WG Meeting 12 May 2016
by Michelle DeSmyter May 12, 2016

May 12, 2016

Dear All, Please find the attendance and MP3 recording for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 12 May 2016 at 16:00 UTC at:http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-12may16-en.mp3 <http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-12may16-en.mp3> On page: http://gnso.icann.org/en/group-activities/calendar#may The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<http://gnso.icann.org/en/group-activities/calendar#nov> Attendees: George Kirikos - Individual Paul Tattersfield - Individual Phil Corwin - BC Jay Chapman - Individual Nat Cohen - BC Apologies: Mason Cole - RySG Osvaldo Nova - ISPCP Petter Rindforth - IPC ICANN staff: Steve Chan Berry Cobb Mary Wong Glen de Saint Gery Michelle DeSmyter ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/ Wiki page: https://community.icann.org/x/9iCfAg Thank you. Kind regards, Michelle DeSmyter ------------------------------- Adobe Connect chat transcript for Thursday, 12 May 2016 Michelle DeSmyter:Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the Thursday, 12 May 2016. George Kirikos:Hi everyone. Philip Corwin:Hello all Paul Tattersfield:Hello George Kirikos:Welcome Phil. George Kirikos:Hey Paul. Philip Corwin:I believe that petter will be unable to join today, so that I will be handling all the Chair duties Jay Chapman:Hi Everyone George Kirikos:Hi Jay. Paul Tattersfield:Hi George, interesting extensive comments George Kirikos:The little box to the top right of the chat window lets people change their chat text colour, by the way, to add some flair/style. :) Paul Tattersfield:oh that box wonder how you all did it in ther RPM WG Mary Wong:We compiled all three sets of comments/questions into a single document Mary Wong:In order of receipt - George, Paul, Phil Mary Wong:Ye Mary Wong:yes Jay Chapman:I'm not on the phone line. I appreciate the comments made - no specific remarks at this time Mary Wong:Thanks, Jay. Jay Chapman:agree with George's point. Michelle DeSmyter:Welcome Nat! Nat Cohen:Hi Everyone Nat Cohen:Thanks George - just listening in Mary Wong:@George, one problem with that is I don't know if/how ICANN can compel IGOs to always do that kind of "assignment", Mary Wong:Thanks, George - got it Jay Chapman:bottom of page 3 George Kirikos:Can we put up Paul Keating and/or Phil's on the whiteboard? George Kirikos:Sorry. George Kirikos:I see it now. Mary Wong:@Phil, all, one question staff has for all of you - if tehre are any commens/questions that you do NOT think need to go to Prof. Swaine. Mary Wong:OK, just making sure :) Mary Wong:(and nothing to do with the fact that I also used to be a law professor who, yes, will have been used to questions and criticisms :)) George Kirikos:I don't think we'd actually get to that point, but putting it out there as something we might have to consider. George Kirikos:Since, registrants buying a domain name deserve to know which specific domains are affected. George Kirikos:(e.g. via the IGO reserved list, etc) Mary Wong:If there is no change to a Consensus Policy, it is still possible to impose obligations on registrars - but that will have to be via contract (RAA amendment) Paul Tattersfield:The differing levels of immunity afforded to IGO's adds even more complexity Mary Wong:@Phil, it is certainly an option for the WG to consider distinguishing between the types of IGOs that are on the GAC list, e.g. UN agencies as distinct from other IGOs. Jay Chapman:and since it's denovo at the court level it's not actually an appeal George Kirikos:BTW, do we know whether the IGOs are planning to give feedback to the Swaine report, and/or our previous letters to the IGOs? Mary Wong:@George, we do not. Mary Wong:At least, staff has not heard anything one way or the other about that. George Kirikos:Even the UN Agencies might not have immunity, e.g. if they don't have a treaty with a certain country, or do business within a certain country (e.g. some African UN agency might not have immunity in Europe against a European domain name registrant, etc.). George Kirikos:It'd likely "depend", just as the Professor said, on th circumstances. George Kirikos:100% of cases have said that assigning rights to an agent is OK (albeit, that's only 1 out of 1 cases). :-) Paul Tattersfield:Would it be worth asking if the Professor knows of any other alternatives to UNICTRAL? Mary Wong:@Paul, there are definitely alternatives, such as the ICC Rules. Mary Wong:Arbitrators rely on the applicable laws in a dispute - part of the proceeding being a legally binding determination (compared to, say a mediation) Mary Wong:Parties can also specify the number and qualifcations of the arbitrator(s) who would hear and determine the dispute George Kirikos:So, an IGO might specify a Swiss judge (or retired judge), whereas a Canadian registrant might specify Canadian judges/retired judges. Mary Wong:Besides the UNCITRAL and ICC Rules, other options include the London Court of Int'l Arbitration and the American Arbitration Association (AAA) ICDR Rules. George Kirikos:But, in a Canadian action, it'd be 100% Canadian judges. Mary Wong:@Goerge, yes - but it would be difficult to compare the results in a court vs arbitration, since the latter is a legally binding substitute for the former (agreed as such between the parties) Paul Tattersfield:Agree Immunity seems to be too fluid, it varies by degree, entity and jurisdiction as such it would be very hard not to be creating additional rights which the majority of IGO's would not be afforded in any other sphere. George Kirikos:Is the plan to have Professor Swaine attend next week's call? George Kirikos:(will he have enough time?) Mary Wong:Yes, and we will confirm with Prof Swaine again George Kirikos:We've bent over backward to be inclusive of the IGO reps. George Kirikos:Yes, it's his report, ultimately. Mary Wong:Thanks Phil George, everyone! George Kirikos:Bye everyone. Have a great day. Paul Tattersfield:Thanks everyone bye Jay Chapman:thanks all

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My Questions and Observations on the Swaine Memo
by Phil Corwin May 11, 2016

May 11, 2016

IGO CRP WG Members: My personal questions and observations on the Swaine memo are attached. They are organized by section. Questions are preceded by a "Q." I look forward to our call at 1600 UTC tomorrow. Best regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey

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Swaine report -- questions/comments
by George Kirikos May 11, 2016

May 11, 2016

Here are some of my thoughts/observations: A. Preliminary Comment --------------------------------- 1. It would be great if all paragraphs of a future draft or final report were numbered sequentially in some manner, to make it easier to reference/cite them in future comments/analysis. B. Questions ----------------- 1. Page 8 appears very confused. (both the paragraph above "Discussion", and the paragraph after it). The base scenario, in the absence of the UDRP, is that the IGO would file a complaint in court, thereby explicitly waiving any immunity, as they brought the action. The "imagined scenario" used in the paper is not helpful at all, because "legitimate expectations" absent the UDRP for an IGO are vary. "Immunity" is only a defense to an action, so of course the IGO will have "legitimate expectations" in defending a lawsuit that it did not initiate. However, "legitimate expectations" when an IGO *initiates* a dispute are quite different! The legitimate expectations are that if it initiates a court case, then it waives immunity. So, I believe the professor needs to go back and look at that, because the statement "imagining that scenario usefully isolates the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity *absent* the UDRP and its concessions" is simply wrong, because of that asymmetry (between initiating vs defending a dispute). Thus, one can't *isolate* the question by focusing on one, because the answers are different due to that asymmetry. Indeed, if one reads on, this has important bearings on the paper. "If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large." Absent the UDRP, immunity is *non-existent* for the IGO that initiates a dispute in court. Thus, "any compromises required by the UDRP" in reality do "loom less large." This goes to the heart of everything (i.e. argues for the maintenance of the status quo). Indeed, if one jumps to page 23, the professor writes: "Beyond tolerating an infringement of its interests, an IGO might in principle elect instead to proceed first (or solely) to court. This is undoubtedly unappealing, because it would accomplish waiver by other means. Even so, that would be the alternative were the UDRP not to exist in its present form; it is not as though a preexisting or independent privilege were being conditioned or withdrawn. IGOs might also take some consolation from the advantages afforded them by the UDRP, which—but for cases in which judicial review is later sought by a losing registrant—affords them an efficient recourse to which they are not otherwise entitled." which again reinforces my position (i.e. that the legitimate expectation absent the UDRP is that the IGO *would* waive immunity when filing a complaint in court). So, combining pages 8 and 23, there's really only one valid conclusion, namely that "any compromises required by the UDRP" in reality do "loom less large." 2. Did the Professor consider the fact that UDRP panels do not actually have the power to implement the transfer of the domain name? i.e. they render a verdict, but it's up to the *registrar* to actually transfer the domain name? For example, Facebook recently transferred the Instagram.com domain name to its own registrar, in response to a possible adverse decision in a Chinese court, see: http://domainincite.com/20290-facebook-under-chinese-court-threat-transfers… RegistrarSEC is located in the USA: http://www.internic.net/registrars/registrar-2475.html If a Chinese court made an adverse ruling, and the registrar refused the transfer, the Chinese "winner" would still need to sue in a US court to force the registrar to transfer the domain. (i.e. it's one thing for a US registrar to be in contempt of a Chinese court order; it's another thing entirely for a US registrar to be in contempt of a US court order) Even if an IGO won a UDRP, isn't there a real scenario where a registrar refuses the transfer, and the IGO is thus compelled to seek enforcement via the courts. (thereby, once again, waiving immunity) Similarly, the original registrant might sue ICANN and/or the registrar and/or the registry, to freeze the status quo (not requiring the IGO to participate, regardless of its immunity), and seek declaratory relief in the absence of the IGO. i.e. until such time as the domain name actually transfers to the IGO, the domain name isn't yet "property" of the IGO that enjoys immunity. Indeed, one might consider the use of an "in rem" lawsuit to dispute a UDRP decision (if permitted by the court) -- Ontario law has already decided that domain names of an Ontario registrant at an Ontario registrar are Ontario property. While the IGO might assert "immunity" (if it was not waived), the property itself (the object of the in rem action) would be unable to make that same assertion. Litigation involving interpretation of the RAA would likely ensue, if ICANN and/or the IGO sought enforcement against the registrar. Even if enforcement was sought against the registry operator, that also requires going to the courts (and waiving immunity). Indeed, even if a UDRP is won by the IGO, and the domain name is transferred to the IGO (say, at the original registrant's registrar), given all domain name registration agreements contain language consenting to the jurisdiction of the courts in that jurisdiction, isn't that in itself a waiver? (e.g. the language in the Tucows registration agreement is, via http://www.loffs.com/Domains/Legal/master.html) "GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN ONTARIO AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS." For Network Solutions (https://www.networksolutions.com/purchase-it/dynamic-service-agreement-popu…) "Notwithstanding the forgoing, for the adjudication of third party disputes (i.e., disputes between yourself and another party, not Network Solutions) concerning or arising from use of domain names registered hereunder, you acknowledge and agree that you shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (i) of the domain name holder's domicile, and (ii) where Network Solutions' principal place of business is located, currently Jacksonville, Florida." Section 3.7.7.10 of the RAA requires such terms: https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en "3.7.7.10 For the adjudication of disputes concerning or arising from use of the Registered Name, the Registered Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of the Registered Name Holder's domicile and (2) where Registrar is located." Thus, even if the waiver of immunity was eliminated in the UDRP, that change would be ineffective unless every ICANN-accredited registrar also modified its registration agreement (giving new immunity to IGOs that doesn't exist today, for their own domain name registrations, regardless of whether the dispute was UDRP-related or not). If this "immunity" was so important to IGOs, it begs the question as to why they've not fought for it within the RAA? (indeed, by their own domain name registrations, it seems they've made the decision to waive immunity, one they make routinely when it's to receive a commensurate benefit) 3. The professor discussed policy alternatives (even though this was not asked for). I'd like to ask the Professor to give his thoughts as to whether it wouldn't be more consistent with the language of section 1(a) of Article 6ter http://www.wipo.int/article6ter/en/legal_texts/article_6ter.html to simply authorize the Attorney Generals or other authorities of the relevant "countries of the Union" (i.e. the attorney general in the same jurisdiction as the domain name registrant) to bring the UDRP on behalf of an IGO, to meet their country's treaty obligations. e.g. if a domain name registrant of Example.com is in China, the Chinese authorities could bring the action in the UDRP. Any appeal could be to the Chinese courts, which of course the Chinese authorities would be subject to already (so there's no issue of immunity involved). Although, as noted previously, some governments might decline to do so. See http://www.state.gov/s/l/38648.htm (as reiterated by the professor in footnote 8), leaving it up to the IGOs to file in court to enforce their perceived rights. The fact that the US State Department explicitly gave that opinion in that letter (i.e. "These laws satisfy U.S. obligations under article 6ter.....Responsibility for evaluating potentially infringing use of trademarks and other intellectual property, and for taking enforcement action when deemed appropriate, however, rests with the party whose interests are affected.") should not be overlooked. Those are sufficient, and it's not up to us to make new law. However, some governments might be willing to step in (given they have made this an issue in the GAC) and file the UDRP on behalf of an IGO, if they're sympathetic in certain circumstances. Indeed, we've seen the US and other governments do domain name seizures for counterfeits, for example (do a Google search for "domain name seizures", so it seems inconsistent that law enforcement would choose not to get involved if they were permitted to file UDRPs on behalf of IGOs. This avoids the issue of immunity of IGOs entirely, just as in the assignment/agent "workaround" (page 25, footnote 89) which we've previously discussed. 4. While the professor provides examples where parties entering into an contract with an IGO have agreed to binding arbitration mechanisms, can he provide any examples that exist where those IGOs are *not* a party to the contract? (e.g. consider the case of a random person in the United States or Canada starts selling "UNESCO" or "WORLD BANK" cookies, isn't it true that the relevant IGO cannot compel those persons into arbitration? what makes domain names so "special" compared to other kinds of trademark infringement where IGOs must go to the courts?) Indeed, can the professor provide any examples where the immunity "shield" of IGOs was transformed into a "sword" that compelled unrelated 3rd parties into a forced arbitration in a dispute initiated by IGOs?? 5. Page 30 says " At the same time, it would not require that an IGO waive immunity to which it would otherwise be entitled." I think we've already established (question #1 above) that absent the UDRP, where the complainant is an IGO, they'd not have a legitimate expectation of immunity, where they're the ones initiating the legal dispute in a court. C. Important Takeaways / Comments ------------------------------------------------- 1. "The merits of such an action will depend on the law of the jurisdiction concerned…" (page 2) And "Results may vary, of course, by jurisdiction." (page 7) These are very important statements. No non-judicial alternatives to national courts are in a superior position to rule on "the law of the jurisdiction concerned" than the courts (including appeals courts) of that jurisdiction. Replacing those courts with non-judicial facsimiles is thus highly prejudicial to a registrant who would rely on those national courts and their interpretations of national law. Indeed, the inability of a registrant to appeal to those national courts would mean that UDRP panelists would be in a position to persistently deviate in their rulings from the relevant national laws, instead of having their decisions circumscribed by those laws. The same applies to binding arbitrations (under alternatives discussed by the professor later on). It would also mean that the UDRP "test" would become de facto law (as would the remedies, i.e. transfer or cancellation), whereas a court could award money damages, grant injunctive relief to stop a particular confusing usage (but allow one to retain the domain name for other uses), etc. or find a different legal test, according to its own national laws. 2. The document is replete with non-neutral language, for example, "curing the immunity concession presently made by IGOs" (last paragraph of page 3) implies (a) the contractual term is somehow defective (it's not), and (b) that it's a "concession" (a more appropriate word might be "term"). This happens throughout the document (I'm not going to point out each occurrence). It would be like calling the filing fees of the UDRP a "concession made by IGOs" -- it's not, it's just a term that applies to all complainants, with IGOs being no exception. 3. "What is more controversial…" (page 6) That's not controversial at all. If it's "controversial", it's as controversial as compelling a domain registrant to participate in the UDRP in the first place. See comment #2. 4. "except insofar as in any particular case it has expressly waived its immunity." (page 12) An important takeaway, that it's not "out of the ordinary" for IGOs to waive immunity - it's explicitly contemplated by UN Charters, treaties, etc. 5. "To an extent, this is simply a matter of balancing equities." (page 28) This ignores the fact that the UDRP was *already* a product of compromise. It's like saying to domain name registrants, "you've reached a compromise" (i.e. you wanted "X", and got "Y" (which is less than "X"). Now you're coming back to them and wanting them to *start* from "Y", and compromise again to reach "Z" (which is less than "Y")?? Without getting anything in return? We're not talking about trivial or minor things to give up, either (e.g. changing the length of a response from 5000 to 4000 words, or something). We're talking about giving up access to the national courts, which is huge. (indeed, in the Universal Declaration of Human Rights, Article 8, etc..) Once again, above that on page 28, I note the non-neutral language of the "forced concession made by IGOs submitting to Mutual Jurisdiction" (there's no forced concession, given that they are free to not use the UDRP at all, which is simply an extra option beyond filing a court case, where there's no immunity). Page 27 is already describing things in terms of a contract of adhesion, i.e. "the IGO’s counterpart would not be entering into this alternative procedure of its free will" 6. We're not tasked to create "new law". Deviating from the status quo (a non-mandatory UDRP procedure, given the appeal mechanism to national courts, which thus cannot override national law), into a forced arbitration, one where the national courts are no longer an option for registrants would be the creation of "new law", since such a system would decouple itself and not be bound to follow national laws (given there's no appeal mechanism to the national courts). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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REMINDER: Action items and meeting schedule following the Working Group call earlier today
by Steve Chan May 10, 2016

May 10, 2016

Dear WG Members, This message is a reminder that clarifying questions and comments in regards to Professor Swaine’s legal memorandum should be sent to the WG mailing list no later than 2359 UTC on Wednesday 11 May. Please note that while not required, it may be beneficial to put questions/comments raised on the 5 May WG call into writing to facilitate their transmission to Professor Swaine. In addition, Professor Swaine has indicated that he expects to be available to participate on the 19 May WG call, though this is contingent upon receiving a volume of questions/comments from the WG that he is able to manage. Best, Steve From: <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Mary Wong <mary.wong(a)icann.org> Date: Thursday, May 5, 2016 at 1:07 PM To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: [Gnso-igo-ingo-crp] Action items and meeting schedule following the Working Group call earlier today Dear all, Please note the following action items that came out of the Working Group call held earlier today as well as the proposed dates, days and times of the next few meetings of our Working Group. - All Working Group members with clarifying questions and/or specific comments as to perceived inaccuracies or additional information needed in Professor Swaine’s 22 April legal memorandum should send any such questions and/or comments via email to this mailing list by no later than 2359 UTC on Wednesday 11 May. - Staff will compile these into two lists – one of questions and one of comments – to be discussed by the Working Group on the next Working Group call, to be scheduled for Thursday 12 May at 1600 UTC. Please be sure to review any questions or comments received via the mailing list before that time, to ensure constructive discussion during the call. The purpose of this call will be to agree on the list of questions and comments to be sent to Professor Swaine for his review and responses. - Subject to Professor Swaine’s availability, the next Working Group call following the one on 12 May will be on Thursday 19 May at 1600 UTC, and will include a Q&A/discussion session with him. Professor Swaine may also choose to provide initial responses via email ahead of such a call. If Professor Swaine is not available on 19 May, we will try to schedule that session for the first week of June. - The Working Group co-chairs will coordinate with ICANN staff to seek GAC/IGO input for and participation at the Helsinki meeting, where we are scheduled to hold a meeting (currently set for Monday 27 June, 1330-1445 Helsinki time). - Our aim will be to produce an Initial Report, to be published for public comment, by late summer 2016. Professor Swaine’s expert opinion will be one form of input to the Working Group as we develop our preliminary recommendations. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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Action items and meeting schedule following the Working Group call earlier today
by Mary Wong May 5, 2016

May 5, 2016

Dear all, Please note the following action items that came out of the Working Group call held earlier today as well as the proposed dates, days and times of the next few meetings of our Working Group. - All Working Group members with clarifying questions and/or specific comments as to perceived inaccuracies or additional information needed in Professor Swaine’s 22 April legal memorandum should send any such questions and/or comments via email to this mailing list by no later than 2359 UTC on Wednesday 11 May. - Staff will compile these into two lists – one of questions and one of comments – to be discussed by the Working Group on the next Working Group call, to be scheduled for Thursday 12 May at 1600 UTC. Please be sure to review any questions or comments received via the mailing list before that time, to ensure constructive discussion during the call. The purpose of this call will be to agree on the list of questions and comments to be sent to Professor Swaine for his review and responses. - Subject to Professor Swaine’s availability, the next Working Group call following the one on 12 May will be on Thursday 19 May at 1600 UTC, and will include a Q&A/discussion session with him. Professor Swaine may also choose to provide initial responses via email ahead of such a call. If Professor Swaine is not available on 19 May, we will try to schedule that session for the first week of June. - The Working Group co-chairs will coordinate with ICANN staff to seek GAC/IGO input for and participation at the Helsinki meeting, where we are scheduled to hold a meeting (currently set for Monday 27 June, 1330-1445 Helsinki time). - Our aim will be to produce an Initial Report, to be published for public comment, by late summer 2016. Professor Swaine’s expert opinion will be one form of input to the Working Group as we develop our preliminary recommendations. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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attendance and mp3 / IGO-INGO Curative Rights Protection PDP WG Meeting - Thursday, 05 May 2016 at 16:00 UTC
by Terri Agnew May 5, 2016

May 5, 2016

Dear All, Please find the attendance and MP3 recording for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 05 May 2016 at 16:00 UTC at: http://audio.icann.org/gnso/gnso-crp-pdp-05may16-en.mp3 On page: http://gnso.icann.org/en/group-activities/calendar#may The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<http://gnso.icann.org/en/group-activities/calendar#nov> Attendees: David Maher - PIR George Kirikos - Individual Kathy Kleiman - NCSG Lori Schulman - IPC Mason Cole - RySG Paul Tattersfield - Individual Petter Rindforth - IPC Phil Corwin - BC Jay Chapman - Individual Osvaldo Nova - ISPCP Paul Keating - NCUC Rudi Vansnick - NPOC Apologies: Jim Bikoff - IPC ICANN staff: Steve Chan Berry Cobb Mary Wong Glen de Saint Gery Terri Agnew ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/ Wiki page: https://community.icann.org/x/9iCfAg Thank you. Kind regards, Terri Agnew ------------------------------- Adobe Connect chat transcript for Thursday, 05 May 2016 Terri Agnew:Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the Thursday, 05 May 2016 Petter Rindforth:Hi Terri, had som problem to connect to Adobe. Worked after my 3rd login. Petter Rindforth:May be my new security system ;-) Terri Agnew:@Petter, I will send you an email to check your plug in's they may need updated Petter Rindforth:Thanks! Terri Agnew:I sent you a private AC chat George Kirikos:Hi everyone. Osvaldo Novoa:Hello all Paul Tattersfield:Hello everyone Philip Corwin:Terri, send me that email as well -- Adobe Chat is working for me on IE but not on Chrome Terri Agnew:@Philip will do Philip Corwin:Thx George Kirikos:Sorry, I got disconnected by the phone. George Kirikos:I'm calling back in. Terri Agnew:George is back on audio George Kirikos:I'm back on the phone. Jay Chapman:Agree with sending out, Phil, and with a timely response request as Petter suggests Rudi Vansnick:+1 Paul Tattersfield:Agree it is a great memo. @ Phil -The degree of immunity seems very fluid and it seems to vary not only by IGO and jurisdiction but also by time (presidential wish/decree etc.) Terri Agnew:Welcome Paul Keating paul keating:sorry all for being late. Mary Wong:@George, I believe it was made clear to Prof Swaine that we are asking about jurisdictional immunity of an IGO. paul keating:@George, Immunity means taht your complaint is dismissed as a matter of course without examination of your claim. Terri Agnew:Welcome Lori Schulman George Kirikos:Perhaps written comments by next week? (Friday May 13th?) paul keating:Petter, can we agree on a process for submitting comments? otherwise we end up with numerous emails, each of which are organized in a different method. paul keating:Petter we also need to have a call to review the comments so we can direct Prof. Swaine as to any relevant matter. George Kirikos:Right, Paul, it's a defense to an action. Lori:Sorry I am late. I can be on for about 30 minutes before I have to leave. George Kirikos:But, what is immunity actual protecting? Lori:I liked the suggestions. Terri Agnew:Welcome David Maher Mary Wong:Immunity from suit in a particular jurisdiction, in this case, right? George Kirikos:Page 2: "The merits of such an action will depend on the law of the jurisdiction concerned." This is a VERY IMPORTANT statement. Assigning that role to some 3rd party arbitration, instead of the relevant national court is very, very dangerous. It usurps the power of those national courts to adjudicate the case, and set forth what the relevant law is, whether the case is meritorious. paul keating:@Phil - As to the gerater weight - absolutely not. That is one of teh main issues of the UDRP today. Swain's comments are essentially that the immunity issue depends upon teh application of teh law in tehjurisdiction in whihc any post-UDRP action is filed. paul keating:I tend to agree. The issue is to direct furtehr questions to Swain for clarification and NOT to ask him to edit to our liking. Philip Corwin:Agreed -- if we push beyond clariufication for changes in language it would undermine its status as the views of an INDEPENDENT exoert paul keating:@Phil, I agree completely Lori:+1 paul keating:@Phil, clarifications should be separately stated in a supplemental document. George Kirikos:Perhaps comments by May 16th? (two weekends from today) George Kirikos:(that's a Monday) Mary Wong:We are aiming for 19 May, two weeks from now - to give him time to consider responses. But that will depend on us getting him our questions within the next few days or week maximim. Mary Wong:@George, that works too George Kirikos:We should have more time to make our own comments.....maybe schedule another call for 3 weeks? paul keating:Perhaps questions and "comments" should be different? Questions for clarifications are ok in 1 Week and a call to identify and solidify the questions to be asked (they all cost money no?) and then a deadline from Swain for any supplemental. paul keating:comments are then a part of teh final report paul keating:questions are what he needs to respond to to clarify. Comments are just enditorial Terri Agnew:Kathy Kleiman has joined audio paul keating:Phil, do we have a target for issuing a report> paul keating:? Philip Corwin:@Paul--as soon as we can responsibly do so -- and I would hope that is between Helsinki and the final 2016 ICANN meeting paul keating:Can we solidify then that what is requested in 1 week are QUESTIONS to Swain regarding his memo? e.g. things in need of clarification. Opinions, etc should follow later as per Petter's comment. paul keating:@Mary, I have a real issue with this memo being released to others outside of this WG absent our report. Mary Wong:@Paul, we were asked for it Paul Tattersfield:the report has "Prvileged and Confidential DRAFT v.3" on the top of it paul keating:Mary, please clarify that any information exchanged within any WG is thus public? Mary Wong:@Paul, as long as it is part of a WG call that is recorded or on a mailing list discussion, yes, it is public. Mary Wong:This is why Prof Swaine supplied us with a synopsis for ICANN55; he was not comfortable with his work at that stage being published. paul keating:ok gthanks Lori:@ Paul, to Mary's point, I don't think that the report is confidential. Lori:the privilege asserted is from the attorney to the client but once released to the team, I believe that the privilege is waived paul keating:Phil, I think a letter from you both as co-chairs is appropriate. I tshould also request their input for the purposes of our report as a WG. George Kirikos:If the IGOs are going to be given more time to make comments, shouldn't we give ourselves the same time? (i.e. otherwise we'll be going back to the Professor multiple times) Lori:The privileged is waived by ICANN because of the nature of ICANN's work paul keating:@Phil, To echo Petter, this memo is only one (1) item that forms the basis for our report. It is not THE basis for the report. Philip Corwin:I think it cabn be the basis of an excellent discussion in Helsinki paul keating:so I would be careful how I described it to the public prior to the nexst meeting. Philip Corwin:Corect Paul. It is only to provide an expert legal opinion relating to the immunity issue George Kirikos:So, what are the deadlines for the first set of clarifications?? Lori:Agree with Phil. This will form a good basis for discussion but is not dispositive Lori:My Adobe status icons don't appear to be working. Lori:Can we ask the professor for a high level executive summary for laymen paul keating:Perhaps we could: Lori:Can you hear me? George Kirikos:Yes, Lori. George Kirikos:Very softly, though. Lori:My mic is not working George Kirikos:One can dial in by phone. Philip Corwin:We hear you, but faintly. Terri Agnew:@Lori, let me know if a dial out is needed. We can hear you but very faint paul keating:I am opposed to any layman summary. The summary will only lead to confusion arising out of potential inconsistencies bewteen his actual memo and his layman summary. Sorry, not to be a lawyer but...... Petter Rindforth:we hear you Terri Agnew:@Lori, yes we can hear you paul keating:yes George Kirikos:Yes, we can hear you. George Kirikos:We lost you. Paul Tattersfield:@Paul +1 Terri Agnew:@Lori, we lost you, please let me know if a dial out is needed Philip Corwin:Now we don't hear you George Kirikos:Best to use the telephone. Lori:please dial out +202=704-0408 paul keating:I think the analysis in less legaleze is the job of the WG George Kirikos:1-866-692-5726 Lori:I am in Switzerland Philip Corwin:Lori, give Terri your number and she'll call you George Kirikos:Switzerland = 0800-120-032 Lori:+1-202-704-0408 George Kirikos:Or, 41-44-580-6398 George Kirikos:Executive Summary = "It Depends" :-) Terri Agnew:@Lori, the op will dial out in a moment paul keating:Perhaps we could (1) prepare a list of materials to consider in the context of the report, and (2) assign people to provide the initial draft, and (3) schedule a review session. Philip Corwin:No, George -- "It's complicated" ;-) George Kirikos::-) paul keating:Petter +1 Terri Agnew:Lori is on audio paul keating:Lori, Good points. However, that is really our task in our report. The opinion is just like relying on a legal opinion in a case by a court. George Kirikos:The exec summary might be the middle paragraph of page 3 starting with "The overall answer, then, is contingent." David Maher (PIR):@paul +1 George Kirikos:Sorry, what was that date again? May 13th for comments? Steve Chan:16 May George Kirikos:Ok, May 16th would be good, to give time to go through it thoroughly. George Kirikos:(I've read it twice already) paul keating:Mary, I suggest questions due by 12th. Summarize and WG call by 17th and move foward from there. paul keating:FASTER PLEASE paul keating:I agree with your timing. Mary Wong:OK, got it paul keating:Lets push and the worst case is he is not available. Mary Wong:We will seek confirmation of Prof Swaine's availability for the 19th Mary Wong:We will also send a note to the mailing list with all these dates George Kirikos:Determine his availability first, because otherwise we're rushing to put together our notes, when we otherwise wouldn't. paul keating:questions by 11th. call on 12th. call asap with Swain. George Kirikos:Plus, the IGOs/GAC don't seem to be in a rush. They should get the same deadlines we do. Steve Chan:@George, I've sent a note to him already for the purpose paul keating:but lets not delay our end George Kirikos:BTW, are we now permanently going to meet on Thursdays, to not conflict with the RPM WG ? Rudi Vansnick:need to go, another call coming soon paul keating:deadline for questions? set call next Philip Corwin:yes, thursday calls Jay Chapman:Mary, looking ahead - what is the presently scheduled day & time for our WG's meeting in Helsinki? paul keating:I have to leave but thank you for everyone's input. Great call. Paul Tattersfield:UTC+2? Mary Wong:Yes, 27 June (Monday) at 1330 Helsinki time George Kirikos:So, probably something like 4 am Eastern time. Jay Chapman:Thanks George Kirikos:Or, maybe 6 am. George Kirikos:Bye folks. Paul Tattersfield:bye all thanks

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Fwd: [Ntfy-gnso-igo-ingo-crp] Meeting invitation: new IGO-INGO Access to Curative Rights Protection Mechanisms Working Group- Thursday, 05 May 2016 - 16:00 UTC
by Kathy Kleiman May 5, 2016

May 5, 2016

Hi Paul, I think this is it. I'm coming on too... Best, Kathy -------- Forwarded Message -------- Subject: [Ntfy-gnso-igo-ingo-crp] Meeting invitation: new IGO-INGO Access to Curative Rights Protection Mechanisms Working Group- Thursday, 05 May 2016 - 16:00 UTC Date: Fri, 29 Apr 2016 16:29:27 +0000 From: Terri Agnew <terri.agnew(a)icann.org> To: Ntfy-gnso-igo-ingo-crp(a)icann.org <Ntfy-gnso-igo-ingo-crp(a)icann.org> CC: gnso-secs(a)icann.org <gnso-secs(a)icann.org> Dear All, The next meeting of the new IGO-INGO Access to Curative Rights Protection Mechanisms Working Group is scheduled on Thursday, 05 May 2016 at 16:00 UTC 09:00 PDT, 12:00 EDT, 17:00 London, 18:00 CEST For other times: http://tinyurl.com/gm6k8un *Adobe Connect_ WITH AUDIO enabled:_**__*https://icann.adobeconnect.com/crp/ For those of you using the Adobe Connect audio, you may do so by activating your computer microphone via the Adobe room (Using a headset is preferable here). *Please confirm your dial-out requests to GNSO Secretariats * gnso-secs(a)icann.org <mailto:gnso-secs@icann.org> ______________________________________________________________________ Participant passcode: IGO *Dial in numbers:* *Country* *Toll Numbers* *Freephone/ Toll Free Number* ARGENTINA 0800-777-0519 AUSTRALIA ADELAIDE: 61-8-8121-4842 1-800-657-260 AUSTRALIA BRISBANE: 61-7-3102-0944 1-800-657-260 AUSTRALIA CANBERRA: 61-2-6100-1944 1-800-657-260 AUSTRALIA MELBOURNE: 61-3-9010-7713 1-800-657-260 AUSTRALIA PERTH: 61-8-9467-5223 1-800-657-260 AUSTRALIA SYDNEY: 61-2-8205-8129 1-800-657-260 AUSTRIA 43-1-92-81-113 0800-005-259 BELGIUM 32-2-400-9861 0800-3-8795 BRAZIL 55-11-3958-0779 0800-7610651 CHILE 1230-020-2863 CHINA CHINA A: 86-400-810-4789 10800-712-1670 CHINA CHINA B: 86-400-810-4789 10800-120-1670 COLOMBIA 01800-9-156474 CROATIA 080-08-06-309 CZECH REPUBLIC 420-2-25-98-56-64 800-700-177 DENMARK 45-7014-0284 8088-8324 ESTONIA 800-011-1093 FINLAND 358-9-5424-7162 0-800-9-14610 FRANCE LYON: 33-4-26-69-12-85 080-511-1496 FRANCE MARSEILLE: 33-4-86-06-00-85 080-511-1496 FRANCE PARIS: 33-1-70-70-60-72 080-511-1496 GERMANY 49-69-2222-20362 0800-664-4247 GREECE 30-80-1-100-0687 00800-12-7312 HONG KONG 852-3001-3863 800-962-856 HUNGARY 36-1-700-8856 06-800-12755 INDIA BANGALORE: 91-80-61275204 INDIA MUMBAI: 91-22-61501629 INDIA INDIA A: 000-800-852-1268 INDIA INDIA B: 000-800-001-6305 INDIA INDIA C: 1800-300-00491 INDONESIA 001-803-011-3982 IRELAND 353-1-246-7646 1800-992-368 ISRAEL 1-80-9216162 ITALY MILAN: 39-02-3600-6007 800-986-383 ITALY ROME: 39-06-8751-6018 800-986-383 ITALY TORINO: 39-011-510-0118 800-986-383 JAPAN OSAKA: 81-6-7878-2631 0066-33-132439 JAPAN TOKYO: 81-3-6868-2631 0066-33-132439 LATVIA 8000-3185 LUXEMBOURG 352-27-000-1364 8002-9246 MALAYSIA 1-800-81-3065 MEXICO GUADALAJARA (JAL): 52-33-3208-7310 001-866-376-9696 MEXICO MEXICO CITY: 52-55-5062-9110 001-866-376-9696 MEXICO MONTERREY: 52-81-2482-0610 001-866-376-9696 NETHERLANDS 31-20-718-8588 0800-023-4378 NEW ZEALAND 64-9-970-4771 0800-447-722 NORWAY 47-21-590-062 800-15157 PANAMA 011-001-800-5072065 PERU 0800-53713 PHILIPPINES 63-2-858-3716 1800-111-42453 POLAND 00-800-1212572 PORTUGAL 8008-14052 ROMANIA 40-31-630-01-79 RUSSIA 8-10-8002-0144011 SAUDI ARABIA 800-8-110087 SINGAPORE 65-6883-9230 800-120-4663 SLOVAK REPUBLIC 421-2-322-422-25 0800-002066 SOUTH AFRICA 080-09-80414 SOUTH KOREA 82-2-6744-1083 00798-14800-7352 SPAIN 34-91-414-25-33 800-300-053 SWEDEN 46-8-566-19-348 0200-884-622 SWITZERLAND 41-44-580-6398 0800-120-032 TAIWAN 886-2-2795-7379 00801-137-797 THAILAND 001-800-1206-66056 TURKEY 00-800-151-0516 UNITED ARAB EMIRATES 8000-35702370 UNITED KINGDOM BIRMINGHAM: 44-121-210-9025 0808-238-6029 UNITED KINGDOM GLASGOW: 44-141-202-3225 0808-238-6029 UNITED KINGDOM LEEDS: 44-113-301-2125 0808-238-6029 UNITED KINGDOM LONDON: 44-20-7108-6370 0808-238-6029 UNITED KINGDOM MANCHESTER: 44-161-601-1425 0808-238-6029 URUGUAY 000-413-598-3421 USA 1-517-345-9004 866-692-5726 VENEZUELA 0800-1-00-3702 Thankyou. Kind regards, Terri

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