July 2017 - Gnso-igo-ingo-crp

The Dangers of Option #2: lack of multiple levels of appeal
by George Kirikos July 31, 2017

July 31, 2017

Hi folks, During one of the conference calls a few weeks ago, I mentioned the Moobitalk case in the French courts, which went through *multiple* levels of the courts, before the correct decision was achieved by the domain name owner, see: http://www.lexology.com/library/detail.aspx?g=5899d5f9-3bbc-416e-a9a5-7233a… http://www.dreyfus.fr/en/marques/france-a-domain-name-transferred-by-udrp-d… Similarly, the important Tucows v Renner case went through multiple levels of the courts, going to the Ontario Court of Appeal: https://www.canlii.org/en/on/onca/doc/2011/2011onca548/2011onca548.html Furthermore, Renner even appealed to the Supreme Court of Canada, although their application for leave to appeal to the Supreme Court was denied, see: https://www.canlii.org/en/ca/scc-l/doc/2012/2012canlii28261/2012canlii28261… fully exercising their rights to attempt to appeal to the highest possible court in the land. Today I stumbled upon another domain dispute in the German courts: http://www.lexology.com/library/detail.aspx?g=55be88b3-76bd-41f8-ac0c-ea552… while not involving a UDRP, apparently (the decision appears to have been anonymized, as the domain name isn't listed, and the parties aren't identified), it too went through multiple levels of the courts (the Frankfurt Higher Regional Court, after starting in the Frankfurt Regional Court). These cases all demonstrate the inherent dangers of Option #2, which only permits the binding arbitration itself, and no further appeals. One of the protections that ensures due process and holds judges accountable is the ability to appeal their judgements. A judge or arbitrator or panelist whose decisions cannot be appealed is potentially far more dangerous, prone to reckless and incorrect decisions, because their level of accountability is lower (thus the higher level of scrutiny for Supreme Court judges in most nations, combined with the "dilution" of individual power by having 9 judges in total at the Supreme Court of Canada or the Supreme Court of the United States. Given the desire of most active judges to advance in their careers, to be appointed to a higher court, a history of overturned decisions on appeal does not bode well for them, and acts as a further incentive to get things right. These dangers aren't present with Option #1. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Option #6 -- adjusting the UDRP language of paragraph 4(k) itself
by George Kirikos July 31, 2017

July 31, 2017

Hi folks, Over the weekend, I was thinking about some of the topics that came up in the last 2 or 3 conference calls, especially as it relates to how registrars handle court challenges to a UDRP dispute, and I believe I found a new option, let's call it Option #6, which might be a path forward. Different opinions were put forth regarding how a registrar might handle an "in rem" or "quasi in rem" court challenge brought by a UDRP respondent (i.e. the domain name registrant). In my view (and after talking to my own registrar), the registrar would likely maintain the status quo, until *all* litigation concerning the domain name was complete. Others held the view that registrars might not do that, given that paragraph 4(k) of the rules: https://www.icann.org/resources/pages/policy-2012-02-25-en only specifically contemplates "in personam" court cases brought by the UDRP respondent (domain owner) against the party who filed the UDRP (i.e. the UDRP complainant). The relevant part of paragraph 4(k) is: "We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that *****you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted****** under Paragraph 3(b)(xiii) of the Rules of Procedure. " (emphasis added, via the asterisks) However, if the wording was changed very slightly, it would clarify the situation with regards to "in rem" and/or "quasi in rem" suits, i.e. the language in the asterisk section above could become: "you have commenced a lawsuit ***concerning the domain name**** in a jurisdiction to which the complainant has submitted" i.e. by changing "against the complainant" to "concerning the domain name", the latter language would cover not only in personam actions brought against the UDRP complainant, but also cover both in rem and quasi in rem actions too. [Aside: the language of the UDRP is actually very poorly worded; by the language of 4(k) as it stands now, it doesn't even say that the lawsuit against the UDRP complainant even needs to relate to the domain name under dispute! i.e. you could sue for *any* cause of action, even unrelated to the domain name, and by a strict reading of the 4(k) language, the registrar has to not implement the decision! We'll need to fix that in 2018 or 2019 or beyond, in the RPM working group PDP...] As discussed previously, with an in rem or quasi in rem case, the only issue in dispute is the fate of the domain name itself, and thus avoids issues of "immunity" entirely for the IGO. The IGO is not a named party (but would receive notice of the property dispute, so it could intervene if it wants to). Furthermore, the "best" way to proceed in such a court action by a domain name registrant, in the event of a UDRP filed by an IGO, would involve both the in rem *and* in personam filings, in a single lawsuit (when I spoke with one my lawyers last week about this scenario, she advised that it should be possible to have both methods in a single lawsuit; indeed, judicial economy would prefer that to two separate cases). Now, if we go back to the scenario where we are concerned about "what happens if an IGO successfully asserts immunity in the courts", that would only result in a dismissal of the in personam aspect of the lawsuit. It would leave unaffected the in rem or quasi in rem aspect of the case. Thus, the domain name owner still has a suitable forum *in the courts* to determine the fate of the domain name, and would not be required to go to any binding arbitration to appeal the UDRP decision. The court action would still be there, in its in rem or quasi in rem context. So, I put this forth as "Option #6", and ask that a few minutes of time be allocated to discussing it at the next meeting (after Paul Keating discusses any revisions to Option #5 that he might have). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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A clean appraisal regarding NGOs
by Paul Keating July 31, 2017

July 31, 2017

All, After much consideration a light has suddenly appeared. We need do nothing in this case at all. The answers exist in the current Policy. Here is a summary of my proposal. I ask that it be discussed at the next call and if necessary we retain counsel to determine if it is legally sound. The current UDRP requires that complainants waive any claim as against the ADR provider. There is no similar provision for respondents. The result is that Complainants waive claims against that ADR provider. Respondents do not. Complainants: (xiii) Conclude with the following statement followed by the signature (in any electronic format) of the Complainant or its authorized representative: "Complainant agrees that its claims and remedies concerning the registration of the domain name, the dispute, or the dispute's resolution shall be solely against the domain-name holder and waives all such claims and remedies against (a) the dispute-resolution provider and panelists, except in the case of deliberate wrongdoing, (b) the registrar, (c) the registry administrator, and (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees, and agents." "Complainant certifies that the information contained in this Complaint is to the best of Complainant's knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument." Respondents: (viii) Conclude with the following statement followed by the signature (in any electronic format) of the Respondent or its authorized representative: "Respondent certifies that the information contained in this Response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument." The current UDRP provides for a Mutual Jurisdiction (MJ) designation. All complainants MUST designate an MJ. An MJ is (generally): Location of registrar per ICANN Location of registrant as stated in the WHOIS There is some uncertainty as to whether the Mutual Jurisdiction selection constitutes a waiver of Sovereign Immunity. An order of an ADR provider must be complied with unless a losing respondent commences a legal action in the MJ within a 10-business-day period. The issue with NGOs is that they do not wish to subject themselves to potential liability of national courts - Sovereign Immunity. Legally, there are 3 potentially interested parties: (1) Respondent, (2) Complainant (NGO), and (3) ADR Provider. A court may generally only issue orders directing an interested party to do (or refrain from doing) something. This might be, ³pay the claimant damages². It might be ³refrain from doing XXX². Very few courts will order a person to DO something other than pay damages. Courts are most likely to order an interested party to NOT DO something. The reason for this is that the standard for ordering a person to do something is higher than the standard to actual NOT do something. This bears relation to unique legal issues like specific performance (an order that a party must do something). Such remedies are rare in the US although more normal in Europe. What I propose is that we essentially ignore the NGOs in this issue and instead focus on the other parties having an interest in this issue and thus subject to the court¹s order the ADR provider. The current UDRP obligates the complainant to waive claims against the ADR provider to protect the ADR provider from damages resulting from its decisions. There is no similar waiver by the Respondent. The common practice amongst attorneys is to name any person or entity that potentially has a relationship to the potential remedy. This is done so that the court can issue an order that has the actual force of law. The court can only order people to do something if they have appeared before the court or had an opportunity to do so. In the context of a typical UDRP, there are 4 parties that have potential control over the remedy or an interest: 1. Registrant 2. Complainant 3. Registrar 4. ADR Provider Typically, in post-UDRP an attorney would name as defendants only the complainant and the registrar. The reason for this is that in most post-UDRP decisions the ADR is seen as a neutral party. However, in US jurisdiction, court orders are often challenged by naming the court as a defendant. The purpose of this practice is to ensure that any appeals court decision is properly directed at the lower court ordering it to do (or not do) something. The most common remedy sought is to invalidate a prior order of the lower court. Thus, the lower court is often named as a real party in interest so that any decision by the appeals court can name the lower court ordering it to invalidate or enforce (or modify) its prior decision. My proposal recognizes that the ADR provider is a necessary party to any post-UDRP litigation so that the court can actually order the appropriate remedy. As a result, the participation of the NGO in the litigation should have no legal bearing on whether or not the underlying UDRP decision is or is not enforced. Any recognition of the NGO¹s sovereign immunity should only impact whether or not the NGO is liable in any manner to the respondent (plaintiff). Thus, a plaintiff who names the ADR provider and Registrar should be able to obtain a court order granting relief (e.g. a confirmation that the domain name should not be transferred) without regard to whether the NGO did nor did not participate in the litigation. In other words, any claim by the NGO concerning Sovereign Immunity would have no impact on whether the domain were transferred. Indeed its only impact would be to prevent any order that the NGO do (e.g. pay damages) or refrain from doing (stop issuing demands) anything. The point is that WE DO NOT NEED TO DO ANYTHING to address the concerns of the NGOs as presented to the Working Group. Sorry it took me so long to remember basic legal theory. Anyone having an issue with the above analysis PLEASE feel free to poke holes all over it. Regards Paul

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MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 27 July 2017
by Terri Agnew July 27, 2017

July 27, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording and chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 27 July 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-27jul17-en.mp3 AC Recording: <https://participate.icann.org/p1y6ocluh8o/?OWASP_CSRFTOKEN=a734cab52dd0f74b 6487850c643c955ffb306ed2d345023772faa3091aafe84d> https://participate.icann.org/p1y6ocluh8o/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: <https://gnso.icann.org/en/group-activities/calendar> https://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos Petter Rindforth Paul Tattersfield Phil Corwin Osvaldo Novoa David Maher Apologies: Jay Chapman Mason Cole Paul Keating ICANN staff: Mary Wong Steve Chan Terri Agnew ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki Agenda page: <https://community.icann.org/x/_gAhB> https://community.icann.org/x/_gAhB Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for Thursday, 27 July 2017 Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 27 July 2017 at 16:00 UTC for 90 minutes Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_- 5FgAhB <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ -5FgAhB&d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFp CIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=IBivpYQhwy1Dq-oPjqG8e7P3HxCKKQsqWHty3N3yS Cc&s=IBftNSm05XpP08pHWOBoOLjHnc_FF28R354O2tgyjAc&e> &d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=IBivpYQhwy1Dq-oPjqG8e7P3HxCKKQsqWHty3N3ySCc&s=IB ftNSm05XpP08pHWOBoOLjHnc_FF28R354O2tgyjAc&e= George Kirikos:Hi folks. Petter Rindforth:@George: Not surprised to see that you are already "on board" George Kirikos:Hey Petter. I just logged in a few seconds before you did. :-) George Kirikos:How are things in Sweden today? Petter Rindforth:Nice and sunny George Kirikos:Perhaps blasting out an email reminder might be wise? Petter Rindforth:Good idea - Mary, can you send a reminder, please George Kirikos:It looks like it already went out. Mary Wong:Terri is way faster than I am George Kirikos:There must be a way to automate those, to make it even easier. :-) Mary Wong:@George, I just realized that I did not update the Options 3, 4 and 5 document to add the missing bit from your proposal for Option 4 that I inadvertently omitted the first time around. My apologies! (but I think you already noted that last week, and please feel free to do so again this week if need be.) George Kirikos:That's alright, Mary. Mary Wong:Thanks George! Philip Corwin:Hello all Osvaldo Novoa:Hello all! George Kirikos:I saw Valerian and the City of a Thousand Planets last night. This PDP is like "ICANN and the Working Group of a Thousand Days" (and counting) :-) Paul Tattersfield:Hello everyone George Kirikos:Hey Paul. George Kirikos:Hi Phil & Osvaldo too. (sorry, has stepped away and missed your entrances!) George Kirikos:*has = had George Kirikos:Perhaps dispose of Option 5 quickly? I think the premise was incorrect, as I pointed out at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.html (i.e. there is still a certification by the respondent, albeit via the providers' supplemental rules) Terri Agnew:everyone can scroll themselves George Kirikos:Page 2 of the doc on screen. Mary Wong:Paul Keating's new proposal (Option 5) starts on Page 2 George Kirikos:"3. Alternative Proposal" = Option 5. George Kirikos:It's obviously wrong, though, see the email I sent. There is a waiver. George Kirikos:Understand the fairness aspect. George Kirikos:His proposal did have a saving grace, if the respondent sued in court immediately without agreeing to the certification. See my comments at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000786.html Mary Wong:@Petter, you may need to reboot AC. The document is on the screen in AC. Terri Agnew:@Petter, you may need to log out and back in, or try a different browser Philip Corwin:I definitely see it on my screen George Kirikos:It's definitely in the Supplemental Rules, Petter. George Kirikos:Is that the Pirate Bay case? Mary Wong:In the UK, for instance, you can ask the court to order specific performance (mentioned by Paul), but that is usually only when damages are considered inadequate as a primary remedy. George Kirikos:That Swedish case is discussed at: https://urldefense.proofpoint.com/v2/url?u=https-3A__torrentfreak.com_court- 2Dorders-2Dpirate-2Dbay-2Ddomains-2Dforfeited-2Dstate-2D160512_ <https://urldefense.proofpoint.com/v2/url?u=https-3A__torrentfreak.com_court -2Dorders-2Dpirate-2Dbay-2Ddomains-2Dforfeited-2Dstate-2D160512_&d=DwICaQ&c= FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0 AIgn-H4xR2EBk&m=IBivpYQhwy1Dq-oPjqG8e7P3HxCKKQsqWHty3N3ySCc&s=UMEvMm5KKdiK69 VDt4tH8LsdCT997HxHECCBAfGq0yU&e> &d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=IBivpYQhwy1Dq-oPjqG8e7P3HxCKKQsqWHty3N3ySCc&s=UM EvMm5KKdiK69VDt4tH8LsdCT997HxHECCBAfGq0yU&e= George Kirikos:No, Paul K. was referencing the UDRP rules, see: Complainant: 3(b)(xiii) George Kirikos:https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en Paul Tattersfield:I don't believe in most jurisdictions that the mutual jurisdiction clause would extend to a waiver of execution Mary Wong:@Paul T (taking off my staff hat and putting back my (creaky and ancient) lawyer hat), I think that's right. George Kirikos: 5(c)(viii) is for the respondent. George Kirikos:Yes, I'm sure the updated UDRP will change that language. Probably just an oversight when it was implemented, to skip the correct certification language within the rules. George Kirikos:That's why the supplemental rules are fixing it. George Kirikos:Actually, Paul K. *did* cite the paragraphs, see: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000784.html George Kirikos:Complainants: (xiii) George Kirikos:Respondents: (viii) George Kirikos:See his email. :-) HE just missed the fact that the ADR providers stuff the language into their Supplemental Rules, to cover the respondent. George Kirikos:Was Option 2 amended? THe PDF was dated July 16th, though? Philip Corwin:And my point is that if respondents are being required by Supplemental Rules to waive future claims against the UDRP provider themn why not the Complainant as well? Whether such mutual waiver is relevant to our work is a separate issue. George Kirikos:The Risk Analysis would allow a great structured approach to analyzing the Options, so they can be ranked by each participant in the PDP, in my opinion. George Kirikos:It was already started for Options 1 & 2. George Kirikos:GAC list is meaningless. It's a court that determines if we ever get to Option 2, i.e. if they "buy" the IGO's claimed immunity. Paul Tattersfield:Phil +1 Mary Wong:@George, yes, that is one of the permutations, if indeed arbitration is to be recommended as a step after the court. George Kirikos:No, not in relation to Option 2. Paul Tattersfield:Given it's the same principle matter can an IGO even assert immunity? If they brought an action in a court they couldn't then cite immunity if the defendant challengeed an initial determination. George Kirikos:@Paul T: The IGO is defending the lawsuit (domain name owner brings the lawsuit). IGO is asserting immunity as a defense to the lawsuit. Mary Wong:@Paul, right - the IGO will not initiate the court action as that essentially wipes out jurisdictional immunity. George Kirikos:No messages to that list since June. George Kirikos:http://mm.icann.org/pipermail/discussion-igo-rc/ George Kirikos:Here's the proposed timeline: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20170726/957d8ae 1/PDPCompletionTimeline-DRAFT-0001.pdf George Kirikos:It contemplates finishing in December. George Kirikos:That schedule has fewer than 10 scheduled WG meetings, so we're in the home stretch. Mary Wong:You can end the public comment period before 4 Nov, if appropriate, and still do a session at ICANN60 before finalizing the report. Paul Tattersfield:Same expert? George Kirikos:Expert on what question, though? Mary Wong:@Petter, yes, that was our assumption - that the WG will not choose to consult another legal expert, this time on the arbitration elements or some other legal topic. George Kirikos:I think we've thoroughly researched all the topics at this point. Mary Wong:@George, we were thinking that the arbitration issue may merit feedback - whether as an expert opinion or just through seeking public comment. Mary Wong:(as we are not experts in international arbitration) George Kirikos:ICANN itself has arbitration elements within the new gTLD program for registry operators. George Kirikos:So, it's within their knowledge base, presumably. George Kirikos:Although, they specify a provider. If Option 2 is adopted (directly, or via a part of Option 4), it may be more broad, though, e.g. any suitable arbitration provider, not necessarily picked/certified by ICANN. George Kirikos:Although, I think Option 1 is still the best pick, simply nullify the UDRP decision in the event an IGO successfully asserts immunity. George Kirikos:Option 1 is easier to implement, too. :-) George Kirikos:When you have ICANN oversight, you get situations where UDRP panelists involve themselves in reverse domain name hijackings, with ICANN sitting on their hands. https://urldefense.proofpoint.com/v2/url?u=http-3A__domainnamewire.com_2016_ 05_20_udrp-2Dpanelist-2Dreverse-2Ddomain-2Dname-2Dhijacking_ <https://urldefense.proofpoint.com/v2/url?u=http-3A__domainnamewire.com_2016 _05_20_udrp-2Dpanelist-2Dreverse-2Ddomain-2Dname-2Dhijacking_&d=DwICaQ&c=FmY 1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIg n-H4xR2EBk&m=IBivpYQhwy1Dq-oPjqG8e7P3HxCKKQsqWHty3N3ySCc&s=Oad9plAZXh1vPYAE7 LqTOpuF9_5j5pPadOJgBrlswoo&e> &d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=IBivpYQhwy1Dq-oPjqG8e7P3HxCKKQsqWHty3N3ySCc&s=Oa d9plAZXh1vPYAE7LqTOpuF9_5j5pPadOJgBrlswoo&e= George Kirikos:Online system?!?!? George Kirikos:That was already the UDRP ---- this is supposed to mimic the courts, e.g. discovery, cross-examination, etc. Philip Corwin:If online means a video meeting then perhaps. If it means just submitting papers then no. George Kirikos:Here's a couple of Canadian arbitration providers, as listed by one of Canada's largest law firms: https://urldefense.proofpoint.com/v2/url?u=http-3A__blg.com_en_News-2DAnd-2D Publications_Publication-5F4034 <https://urldefense.proofpoint.com/v2/url?u=http-3A__blg.com_en_News-2DAnd-2 DPublications_Publication-5F4034&d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJ ms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=IBivpYQhwy1Dq-oP jqG8e7P3HxCKKQsqWHty3N3ySCc&s=ZiafRClRNh57WCKDC7mp3r9RtgZQJ4jW5JSsMrrS5SQ&e> &d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=IBivpYQhwy1Dq-oPjqG8e7P3HxCKKQsqWHty3N3ySCc&s=Zi afRClRNh57WCKDC7mp3r9RtgZQJ4jW5JSsMrrS5SQ&e= George Kirikos:(BLG.com is one of my law firms, for disclosure) George Kirikos:Do we have a decision as to how long the comment period will be, and also whether we are going to have it? George Kirikos:i.e. the 2 chairs weighed in, but we didn't ask the group or vote, etc. Philip Corwin: We will make decisions on whether to have a comment period after we decide on elements of the final report. Premature now George Kirikos:Last week we have 11 or 12. George Kirikos:*had Mary Wong:Staff will send out the action items from this meeting, drawing WG members' and Paul K's attention to furthering discussion on the Options (and Paul K for Option 5). George Kirikos:We can have email discussions too, when there aren't scheduled working group meetings. George Kirikos:So, work can still get done. Philip Corwin:Yes, we can have email exchanges throughout August George Kirikos:Have a nice day, folks! Philip Corwin:Bye all Paul Tattersfield:thanks all bye

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Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
by Paul Keating July 27, 2017

July 27, 2017

I apologies to all but due to work commitments I was unable to complete my task for the group in terms of modifying my proposal. Paul Keating From: <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Mary Wong <mary.wong(a)icann.org> Date: Wednesday, July 26, 2017 at 9:44 PM To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July > Dear all, > > For the next Working Group call, scheduled for Thursday 27 July at 1600 UTC, > the co-chairs would like to continue discussions on the topics from last week, > i.e. the additional options to Recommendation #4 that were raised by George > Kirikos and Paul Keating (and which are being referred to as Options 3, 4 and > 5), as well as the necessary elements of any arbitration option that may be > incorporated into Recommendation #4. You will find the documents that were > used on the call last week for both these topics attached. > > In addition, the Working Group is being asked to decide if it wishes to > publish its draft Final Report for public comment, as was suggested in the > community session at ICANN59. Staff has worked with the co-chairs to develop a > proposed timeline for the completion of our work to take into account that > option as well as the possibility of canceling a few calls due to the > unavailability of one or both the co-chairs in August please see the > attached for a sense of the dates. > > Thanks and cheers > Mary > > > > From: Mary Wong <mary.wong(a)icann.org> > Date: Monday, July 17, 2017 at 19:30 > To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> > Subject: FOR REVIEW/DISCUSSION: Updated Arbitration Elements paper, Options 3 > & 4, plus new suggestion > > > Dear Working Group members, > > Please find attached, as requested, an updated version of the Co-Chairs¹ Paper > on Arbitration Elements. The updates were made based on suggestions and > discussions on the last Working Group call of 12 July 2017. > > As also noted on that call, the next Working Group call will include a further > discussion of the updated paper, as well as suggsted Options #3 and #4 (to the > Working Group¹s preliminary recommendation 4). Staff has taken the liberty of > extracting the relevant portions of these two suggestions, as well as adding > the latest suggestion from Paul Keating to the mailing list a few days ago, > and compiling them into the second attached document for your convenient > reference. > > Briefly, here is the origin of the additional suggestions: > * Option 3 (from Paul Keating, suggested on the Working Group call of 15 June > 2017): https://community.icann.org/x/SEfwAw > * Option 4 (suggested by George Kirikos via email to the mailing list on 27 > June): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html > * Additional alternative suggestion from Paul Keating via email to the Working > Group mailing list on 14 July: > http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000784.html > <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000784.html> > > We hope the documents are useful. > > Thanks and cheers > Mary > _______________________________________________ Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Proposed agenda and documents for Working Group meeting on Thursday 27 July
by Mary Wong July 26, 2017

July 26, 2017

Dear all, For the next Working Group call, scheduled for Thursday 27 July at 1600 UTC, the co-chairs would like to continue discussions on the topics from last week, i.e. the additional options to Recommendation #4 that were raised by George Kirikos and Paul Keating (and which are being referred to as Options 3, 4 and 5), as well as the necessary elements of any arbitration option that may be incorporated into Recommendation #4. You will find the documents that were used on the call last week for both these topics attached. In addition, the Working Group is being asked to decide if it wishes to publish its draft Final Report for public comment, as was suggested in the community session at ICANN59. Staff has worked with the co-chairs to develop a proposed timeline for the completion of our work to take into account that option as well as the possibility of canceling a few calls due to the unavailability of one or both the co-chairs in August – please see the attached for a sense of the dates. Thanks and cheers Mary From: Mary Wong <mary.wong(a)icann.org> Date: Monday, July 17, 2017 at 19:30 To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: FOR REVIEW/DISCUSSION: Updated Arbitration Elements paper, Options 3 & 4, plus new suggestion Dear Working Group members, Please find attached, as requested, an updated version of the Co-Chairs’ Paper on Arbitration Elements. The updates were made based on suggestions and discussions on the last Working Group call of 12 July 2017. As also noted on that call, the next Working Group call will include a further discussion of the updated paper, as well as suggsted Options #3 and #4 (to the Working Group’s preliminary recommendation 4). Staff has taken the liberty of extracting the relevant portions of these two suggestions, as well as adding the latest suggestion from Paul Keating to the mailing list a few days ago, and compiling them into the second attached document for your convenient reference. Briefly, here is the origin of the additional suggestions: * Option 3 (from Paul Keating, suggested on the Working Group call of 15 June 2017): https://community.icann.org/x/SEfwAw * Option 4 (suggested by George Kirikos via email to the mailing list on 27 June): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html * Additional alternative suggestion from Paul Keating via email to the Working Group mailing list on 14 July: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000784.html We hope the documents are useful. Thanks and cheers Mary

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Attempt at Achieving Full Consensus -- Option #4
by George Kirikos July 26, 2017

July 26, 2017

Hi folks, After today's call, I was doing some brainstorming, and wish to present a skeleton proposal for a new Option #4, as a possible viable alternative to Options #1, #2 and #3. First, my strong inclination remains with Option #1, with Option #3 (the limited waiver adjustment to the UDRP language, as opposed to a full waiver as is currently the case, as mentioned by Paul Keating) being my second choice. However, here's my idea for Option #4: (a) For all domains with a creation date prior to the adoption of our final report (say January 1, 2018, for the sake of argument), we go with Option #1 (i.e. this reflects the grandfathering we've discussed previously for existing domain names already created, thereby not taking away the legal rights of registrants (or successors in interest, i.e. transfers) of currently registered domain names. (b) For all domains with a creation date past January 1, 2018, we go with Option #2 (not the current document that was sent to the mailing list today, but a much more polished and thoroughly reviewed version, with stronger due process protections for registrants, including a 2nd level of appeals if necessary and also with the full "open court principle" in effect for all documents/evidence, for all those cases (not just decisions, but also all filings, cross-examinations, etc. in the case) with copies to be maintained on a public website by ICANN (as they do now for their "Litigation" section of their website. (c) All UDRP/URS providers must flag *all* of their disputes involving IGOs as complainants, sending the information to ICANN which will maintain a public record of them (like they used to do for UDRPs, but stopped doing). Not only does ICANN have to track any arbitrations invoked in point (b) above, but ICANN must also track any/all court disputes invoked and subject to point (a) (i.e. the grandfathered domain names), and obtain (at ICANN's expense) all the relevant public court documents/filings/evidence. (d) And here's the key insight, that follows from (a), (b) and (c) -- at the earliest date of (i) five years or (ii) after 10 (or some other number) disputes involving IGOs via Option #2 (i.e. counting just non-grandfathered domains, where the arbitration system might offer less due process than the courts), ICANN shall convene a "review" working group to analyze all of the cases involving IGOs (both grandfathered and non-grandfathered), for the limited purpose of reviewing whether or not the arbitration system has adequately served those domain name registrants (i.e. offered the equivalent level of justice as the court system). Should that review find that the level of due process was equivalent to the courts (i.e. no outrageous decisions/outcomes/process failures, etc. that offends the sensibilities of community, etc.), then Option #2 could continue (for newly created domains only; grandfathered domains would always stay grandfather via Option #1). In the event that arbitration turns out to be an abysmal failure, i.e. subject to forum shopping issues, etc., then newly created domains would revert back to Option #1 (vitiation), just like the grandfathered domain names. That working group shall also seek the input of all parties to the disputes, to get their input on the success of the procedure. So, in other words, we "try out" Option #2, just for newly created domains, while preserving full legal rights under Option #1 for grandfathered domains. Then we impose the obligation upon ICANN, the UDRP/URS providers, and the arbitration providers (via the mandated open court principle) to provide a future "review working group" the ability to go back and double check that there were no negative consequences in the decision to "try out" Option #2 as an experiment. (I was going to use the term "unforeseen consequences", but I think we *can* foresee some of those potential consequences already!) Lastly, we build in a clause that should ICANN fail to complete such a review within 7 years total (measured from the adoption of our final report, i.e. January 1, 2018 for the sake of argument plus 7 years would be January 1, 2025), then Option #2 is eliminated, and we go back to Option #1. Call this a "self-termination" clause, to ensure that a future review itself isn't gamed. i.e. the default is that we go back to Option #1 for everyone, except if a full review determines we can continue with Option #2 for newly created domains. The entire justification of this PDP was due to the new gTLD process. So, this recommendation would say "fine, experiment on newly created domains, both new gTLDs and legacy TLDs to boot; review and assess, and either continue it if no negaitve consequences, or kill it and revert to Option #1 if there are problems". This solves a lot of the issues where ICANN makes bad policies, and then never reviews them (i.e. UDRP being reviewed after 20 years!). Here, we're *building in* the mandatory review as part of our consensus decision-making, if folks agree to go this route. Furthermore, we're empowering that future review working group, *and* ensuring they have all the data that's needed to do a proper review. As we've seen from other working groups, most ICANN policies never contemplated being reviewed, and thus never mandated ongoing data collection. Here, we'd be requiring that data collection from the start. This proposal is still in skeleton form, but I'm posting it now, while the ICANN meeting is ongoing in Joburg, in the hopes we can get some feedback potentially from anyone there, as it might help break an impasse (although, I still believe Option #1 is the best, by a great margin, for reasons previously discussed in depth). Of course, anyone in this PDP with thoughts can post to the mailing list as well, or we can also discuss during a future regular PDP call. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 20 July 2017
by Terri Agnew July 20, 2017

July 20, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording and chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 20 July 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-20jul17-en.mp3 AC Recording: <https://participate.icann.org/p2npgopqmme/?OWASP_CSRFTOKEN=3011643f1f7b0839 e912cc31b822a52f47df76a428b3e4dce623421de5d0964f> https://participate.icann.org/p2npgopqmme/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: <https://gnso.icann.org/en/group-activities/calendar> https://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos Petter Rindforth Paul Tattersfield Phil Corwin Jay Chapman Mason Cole Osvaldo Novoa David Maher Nat Cohen Poncelet Ileleji Paul Keating Apologies: none ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang Terri Agnew ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki Agenda page: <https://community.icann.org/x/ZXrwAw> https://community.icann.org/x/ZXrwAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for Thursday, 20 July 2017 Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 20 July 2017 at 16:00 UTC for 90 minutes Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_Z XrwAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ ZXrwAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=gLT8tC_FT16L-fjjNvWzwY0Ub0vh-6deJwKcz2fS7T 4&s=i96hne7_g0VDZyWcYaVIhQzed29RC5P4WSx9KVn-ndk&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=gLT8tC_FT16L-fjjNvWzwY0Ub0vh-6deJwKcz2fS7T4&s=i9 6hne7_g0VDZyWcYaVIhQzed29RC5P4WSx9KVn-ndk&e= George Kirikos:Hi folks. George Kirikos:How much for a quorum? Terri Agnew:this groups has 18 members Paul Tattersfield:Hi George & Petter Terri Agnew:**28 members Steve Chan:@George, there are no prescribed numbers for deciding whether or not to conduct a WG call. It's up to the discretion of the WG leadership Philip Corwin:Waiting on audio operator George Kirikos:We're up to 5 now, so that's looking better (was just 2 earlier). Petter Rindforth:waiting... Terri Agnew:alerting op Osvaldo Novoa:Hello all! George Kirikos:Welcome Osvaldo. Philip Corwin:Wait now up to 4 minutes! Petter Rindforth:still waiting.... :-( George Kirikos:If we changed the call to start at 11:55 am (Eastern), one would zip through the operators. :-) George Kirikos:[skips their 'peak' at the top of the hour] Jay Chapman:waiting on phone operator to pick up Jay Chapman:thanks, sorry not meaning to pile on :) Philip Corwin:Finally on audio, waiting one minute for Petter Terri Agnew:of course if any dial outs are needed, please let me know Nat Cohen:Yes, I'm on audio. Hello everyone. Poncelet Ileleji:Hello all George Kirikos:Without wasting too much time on this, whatever's in the UDRP doesn't preclude any other kinds of litigation to resolve the ownership of the UDRP. See: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000800.html George Kirikos:Just because ICANN delineates one procedure doesn't mean it's the only option for a registrant. George Kirikos:*resolve the ownership of the domain, rather George Kirikos:It's not "another arbitration" since UDRP is not an arbitration. Terri Agnew:Welcome Paul Keating Paul keating:hi. i am text only right now. will try to dial in George Kirikos:It didn't make sense. Mary Wong:We can try to rephrase or, if directed, delete this sentence. Mary Wong:Based on Phil's comment, maybe rephrasing is better. Mary Wong:@Phil, yes, that was the intention, hence these went under a Preliminary Notes intro. George Kirikos:Whether it's an IGO or not is obviously decided by the court itself (i.e. that's how they were able to assert immunity successfully). George Kirikos:i.e you only get to Option 2 if it's an IGO recognized by that court AND had immunity. Paul keating:@phil. who would add igos to the GAc list? Paul Tattersfield:The GAC list could be problematic as not all IGO's on it have the right to imunity George Kirikos:It might be an IGO in Africa, but not be recognized as such in Canada (not a member of that specific treaty), for example. Mary Wong:@Paul, as the list was prepared by the GAC, staff has assumed that the GAC will update. When it sent the list over, the GAC specififed that they may update it either every 3 years or when the next gTLD round is launched. Paul keating:@phil, what is the relevant jurisdiction and how determined? registration agreement? location of registrant? complaint? George Kirikos:This document didn't capture all the past comments, in any event (perhaps can repeat them in writing on the list). Mary Wong:This is also the list that the current implementation of the adopted IGO-INGO recommendations is using, so there is a consistency consideration as well. Mary Wong:@eorge, the new preliminary notes only tried to capture substantive comments that may need amendment to the UDRP to be effective, not all the comments that were made while the topic was being discussed. George Kirikos:Some jurisdictions/nations don't have arbitrations, by the way. (something I read when researching IGOs) Paul keating:so it would be the jurisdiction in which the action had been pending? George Kirikos:The jurisdiction where the court ruled in favour of the IGO on immunity, presumably. George Kirikos:Anyhow, Option 3. George Kirikos:It's not really an either/or for Option 3 --- it can be done in parallel to #1, #2 or #3, even. George Kirikos:Not just a monetary award ---- also a counterclaim, based on other causes of action. George Kirikos:(e.g. employment law, etc.) George Kirikos:IGO, not NGO. Paul Tattersfield:Are the IGO's concerns about damages real? Wouldn't the mutual jurisdiction clause just be a waiver of jurisdictional immunity rather than immunity from execution which would normally require a separate explicit waiver in most jurisdictions? George Kirikos:"quasi in rem" Mary Wong:@Paul T, I believe you are right that they have mostly been concerned with jurisdictional immunity. To my knowledge we've not heard any concerns that enforcing a panel decision by transfer (for instance) would raise immunity issues for IGOs. George Kirikos:Right, it's the IGO making an express, but limited, waiver --- specifying that it's just a dispute over the domain that is to be decided by the relevant national court. George Kirikos:(asserts it is an IGO, or is determined by a court to be an IGO) :-) George Kirikos:To avoid the fake IGOs. George Kirikos:Damages, but also other causes of action unrelated to the domain (e.g. employment lawsuit, etc.). George Kirikos:https://www.law.cornell.edu/wex/quasi_in_rem "When hearing quasi in rem actions, a court may only affect a named defendant's interest in a specific named piece of property." George Kirikos:That's I think what we're trying to achieve. George Kirikos:+1 Paul K. Mary Wong:There is also a separate (different) legal issue of immunity when it comes to UN employees. George Kirikos:Some registrars don't like being added to such a lawsuit, though. :-) George Kirikos:Right, the in rem action is exactly the kind of thing I was talking about, to counter Petter's example. George Kirikos:But, you don't have to rely on the ACPA, to assert in rem. You can assert "in rem" or "quasi in rem" under non-statutory, common law principles. Mary Wong:Thanks, Paul - that's helpful to know (about the ACPA process). Mary Wong:@Paul, that's where I'm coming from; the sense that not many other jurisdictions will entertain these actions either in the same way or at all. Mary Wong:@Phil, I believe several countries were considering an ACPA-type statute but, as Paul says, we're not aware of any that actually did so. Poncelet Ileleji:Much appreciated @Paul George Kirikos:.uk DRP, yes. Mary Wong:Paul K has just said, very clearly, what staff was trying to distinguish as well - the difference between a court action ending (or being dismissed) for lack of jurisdiction and when the court dismisses an action based on examination of substantive merits (which can only proceed if there is not a jurisdictional problem). Philip Corwin:BTW, Paul, I like the fact that your proposal only requires and amendment to the UDRP Rules, not the underlying Policy Philip Corwin:Policy changes will be much more difficult to advance beyond this WG George Kirikos:Contract of adhesion --- courts will ignore that kind of overbroad language. :-) George Kirikos:Compulsion --- harder to disobey a court's order, when they're a party. George Kirikos:(easier to ignore an ex parte order) George Kirikos:Or challenge that ex parte order. George Kirikos:Right, but "in rem" involves only the property. e.g. XYZ vs a Boat Located on Lake Ontario. George Kirikos:4k only specifies a court of "competent jurisdiction" --- doesn't have to be in the same as the mutual one. George Kirikos:I think that 2nd option (#5) is moot, anyhow. George Kirikos:It had the fatal flaw I already identified. George Kirikos:I.e. the supplemental rules were missed. George Kirikos:You mean re-draft Option 3, the limited waiver. Mary Wong:@George, apologies that staff inadvertently did not paste the last phase of your proposal into this document. Thanks for catching it! George Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.htm l George Kirikos:Is the message, that poked a big hole. Mary Wong:Paul's other suggestion starts in the middle of Page 2 of the document on screen George Kirikos:Option #4: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html George Kirikos:"open justice" Mary Wong:@George, can you repeat the rationale for limiting this Option to new registrations, as I missed it? Thanks Paul Tattersfield:Thanks Mary especially your penultimate question saved me having to ask George Kirikos:URS has no transfer option. Petter Rindforth:UDRP is also used for a great number of traditional ccTLDs Paul keating:agreed Mary Wong:Actually, both will be problematic legally, sorry ("vitiate" and "nullify") Paul Tattersfield:Is there a way of presenting any acceptable options once worked through to the IGOs & GAC to see if they are acceptable to them before we produce our final report? - A second preliminary report perhaps? Mary Wong:@Paul T, yes there is - the Working Group can publish a draft Final REport for public comment BEFORE submitting the report to the Council for action. Mary Wong:In addition, it may be worth considering also engaging in a dialogue with the GAC and IGOs at that time. Paul Tattersfield:thanks, Mary Mary Wong:You're most welcome, Paul! George Kirikos:Same bat time, same bat channel. Terri Agnew:The next IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call will take place on Thursday, 27 July 2017 at 16:00 UTC for 90 minutes George Kirikos:We should also start a Risk Analysis of all the options, at some point. Paul Tattersfield:Very interesting meeting - thanks Paul & George, very helpful to hear your proposals explained today George Kirikos:(which we started a few weeks back) George Kirikos:(i.e. Steve had a document that started the RIsk Analysis) Jay Chapman:Staff, my advance apology -i will be unable to attend next week's call George Kirikos:Bye folks. Mary Wong:THanks, Jay, we will note. Paul Tattersfield:Bye all Jay Chapman:thanks, all Mary Wong:Thanks Phil and all! Terri Agnew:@Jay,noted

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- Proposed Agenda for WG call on Thursday 20 July 2017 at 1600 UTC
by Steve Chan July 20, 2017

July 20, 2017

Dear WG Members, The proposed agenda for the upcoming WG call this Thursday 20 July 2017 at 1600 UTC is as follows; please also note that this call has been scheduled for 90 minutes: Roll call/updates to Statements of Interest Discuss co-chairs’ updated Arbitration Elements paper in relation to Recommendation #4 Option 2 Discuss Option 3, Option 4, and additional suggestion from Paul Keating Next steps and AOB For your convenience, I’ve attached the documents that Mary distributed on 17 July. Best, Steve Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

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Misplaced deference to GAC advice, distortion of ICANN processes, pre-decided conclusions
by George Kirikos July 20, 2017

July 20, 2017

Hi folks, In case you missed it, there was a nice article in The Register today that relates to GAC advice, see: "Amazon may still get .amazon despite govt opposition – thanks to a classic ICANN cockup" https://www.theregister.co.uk/2017/07/19/dot_amazon_icann/ ---- quote ---- "An explanation of the NGPC's reasons for denying the applications was particularly important in this matter, given the absence of any rationale or reasons provided by the GAC for its advice and the fact that the record before the NGPC failed to substantially support the existence of a well-founded and merits-based public policy reason for denying Amazon's applications." Moreover, the panel noted that it was "unable to discern a well-founded public policy reason" for turning the application down and revealed that ICANN's New gTLD Program Committee had not even discussed, let alone relied on, the conclusions of an independent expert who had been hired to dig into the issue. ---- end of quote ---- This sounds quite familiar, just as the GAC issues 'advice' regarding our policy work and fails to support that advice with well-founded reasoning. We're obligated as a group to do the hard work, and not be influenced by surrounding "politics", otherwise we'd be repeating the mistakes made in this .AMAZON matter. As The Register stated, we should be firmly opposed to: https://www.theregister.co.uk/2017/07/19/dot_amazon_icann/?page=2 "Distorting their own processes to arrive at a pre-decided conclusion." Domain name registrants shouldn't be the pawns who are sacrificed in the political games being played by IGOs in their secret machinations with the GAC. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Allocation of time for Options #3 and #4 for next week's agenda
by George Kirikos July 19, 2017

July 19, 2017

Hi folks, Just to followup on yesterday's call, I'd like time to be allocated on the agenda (next week, or whenever) to discussion of Option #3 (i.e. the limited waiver as opposed to general waiver of immunity, as put forth by Paul Keating in the past, as a way to addressing some of the fears of IGOs), as well as Option #4 which I sent to the mailing list several weeks ago: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html representing a hybrid approach, whereby existing domains (by creation date) are grandfathered under Option #1, "new" domains (by creation date) are handled under Option #2, and most importantly there'd be a mandatory review system in place to ensure that there are no unforeseen consequences to due process. That mandatory review guards against an outcome which was supposed to be used in rare circumstances (perhaps 1 or 2 cases per year) explodes in usage with outcomes that deviate from those of the court system. I'd be available to "take the lead" in discussing Option #4 on the next call or any other time this is scheduled (including discussion on the mailing list, if folks had questions to raise in written form). I don't know Paul Keating's schedule, but perhaps he could be consulted if he wants to take the lead on discussions of Option #3 during an upcoming call (although I'm familiar enough with its pros/cons to discuss it too, as I'm sure others are, since it's been an idea that been touched upon for a long time in this PDP, but not discussed deeply or formally at the group level. By the way, I don't see Option #3 as an "either/or" alternative to Option #1, #2, or #4 --- it's more a parallel option that can be added on to any of the other options. i.e. it's going back to the language of the UDRP itself and clarifying the precise nature of the waiver of immunity (which then might affect how a court handles the immunity question, should the UDRP outcome ever be challenged in the courts). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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FOR REVIEW/DISCUSSION: Updated Arbitration Elements paper, Options 3 & 4, plus new suggestion
by Mary Wong July 17, 2017

July 17, 2017

Dear Working Group members, Please find attached, as requested, an updated version of the Co-Chairs’ Paper on Arbitration Elements. The updates were made based on suggestions and discussions on the last Working Group call of 12 July 2017. As also noted on that call, the next Working Group call will include a further discussion of the updated paper, as well as suggsted Options #3 and #4 (to the Working Group’s preliminary recommendation 4). Staff has taken the liberty of extracting the relevant portions of these two suggestions, as well as adding the latest suggestion from Paul Keating to the mailing list a few days ago, and compiling them into the second attached document for your convenient reference. Briefly, here is the origin of the additional suggestions: * Option 3 (from Paul Keating, suggested on the Working Group call of 15 June 2017): https://community.icann.org/x/SEfwAw * Option 4 (suggested by George Kirikos via email to the mailing list on 27 June): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html * Additional alternative suggestion from Paul Keating via email to the Working Group mailing list on 14 July: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000784.html We hope the documents are useful. Thanks and cheers Mary

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Alternative word(s) for 'vitiate'
by George Kirikos July 14, 2017

July 14, 2017

Hi folks, During yesterday's call, Mary mentioned that the word 'vitiate' might not be the best choice. I've always like "set aside", but another alternative that came to mind today was "nullify". https://www.merriam-webster.com/dictionary/nullify "1 : to make null (see 1null 1); especially : to make legally null and void nullify a law 2 : to make of no value or consequence (see consequence 3) a promise later nullified" Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 13 July 2017
by Terri Agnew July 13, 2017

July 13, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording and chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 13 July 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-13jul17-en.mp3 AC Recording: <https://participate.icann.org/p5274qbiyij/?OWASP_CSRFTOKEN=3011643f1f7b0839 e912cc31b822a52f47df76a428b3e4dce623421de5d0964f> https://participate.icann.org/p5274qbiyij/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: <https://gnso.icann.org/en/group-activities/calendar> https://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos Petter Rindforth Paul Tattersfield Phil Corwin Jay Chapman Mason Cole Apologies: none ICANN staff: Mary Wong Steve Chan Berry Cobb Maryam Bakoshi Terri Agnew ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki Agenda page: <https://community.icann.org/x/R2XwAw> https://community.icann.org/x/R2XwAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for Thursday, 13 July 2017 Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 13 July 2017 at 16:00 UTC for 90 minutes . Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_R 2XwAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ R2XwAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GLdQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1 A&s=gkE_X4CfLHxQlH3fbJkXYVVugKIMjRHY0mUh-7ApjzM&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GLdQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1A&s=gk E_X4CfLHxQlH3fbJkXYVVugKIMjRHY0mUh-7ApjzM&e= George Kirikos:Hi folks. Paul Tattersfield:Hi George, Everyone George Kirikos:Hey Paul. Paul Tattersfield:This looks very cool is it near you George? Paul Tattersfield:https://pbs.twimg.com/media/DDHaEsVXUAALFkS.jpg:large George Kirikos:No, I'm in Toronto. That appears to be somewhere in Western Canada? (perhaps the Rocky Mountains?) Paul Tattersfield:Ah a long way lol - Banff George Kirikos:I found a very interesting article about the UN and Immunity, in relation to fraud, which had a very interesting quote. See: https://urldefense.proofpoint.com/v2/url?u=http-3A__www.foxnews.com_world_20 16_07_12_fraud-2Dwhat-2Dfraud-2Dwatchdogs-2Dfind-2Dun-2Din-2Dstate-2Dnear-2D denial-2Dabout-2Dinternal-2Dcorruption.html <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.foxnews.com_world_2 016_07_12_fraud-2Dwhat-2Dfraud-2Dwatchdogs-2Dfind-2Dun-2Din-2Dstate-2Dnear-2 Ddenial-2Dabout-2Dinternal-2Dcorruption.html&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mS VzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GL dQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1A&s=DdTKmZH2sH5GA0nfsoE8bxLliM_SWjf0_U 8OAnkLV7E&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GLdQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1A&s=Dd TKmZH2sH5GA0nfsoE8bxLliM_SWjf0_U8OAnkLV7E&e= George Kirikos:"And follow-up often just ends: the U.N. bureaucracy is reluctant to prosecute fraudsters even when discovered. The reason: it may involve lifting "the immunity of witnesses and related United Nations documents, and may exposure the United Nations organizations to counter-claims." George Kirikos:So, the question is: If countries don't change their fraud laws, to allow these actual fraudters to be prosecuted, why should ICANN be changing its rules? What's different about domain names? George Kirikos:This provides even further support for Option #1. Jay Chapman:don't have scroll ability yet Mary Wong:@Jay, you should do. Maybe reboot AC? Terri Agnew:@Jay, try logging in with a differnt browser George Kirikos:Links to everything at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000781.html Jay Chapman:thanks George Kirikos:It wasn't the only basis -- just evidence of TM (not proof). George Kirikos:WIPO is trying hard to eliminate court action. Unacceptable. George Kirikos:+1 Petter. Non-commercial entities can hold TMs. Indeed, ICANN holds TMs. Paul Tattersfield:Ckass 35 for chariable fund raising Mary Wong:I think the comment was directed not toward the entity holding a TM, but the use to which a TM must be put (i.e. use in commerce) Paul Tattersfield:Class 36! bad typo George Kirikos:I think more broadly, a trademark right comes from being an indicator of source for wares/services. George Kirikos:So, to the extent that an IGO is a source of any services, then it would broadly qualify. George Kirikos:Sometimes, "services" might be as broad as "advocacy" or "communications to the public", etc. George Kirikos:It's such a low burden. Petter Rindforth:Agree, "commercial" is an old way to describe trademarks George Kirikos:IGOs can always use law enforcement/courts in cases of emergencies. George Kirikos:If "crime" is so obvious, why is the "first step" going to ICANN, rather than going to the police? Mary Wong:On the question of creating a new form of URS - note that our Charter has a two-step instruction: first consider if the existing mechanisms adequately address the needs of IGOs and INGOs, and, secondly, if not, whether a new, narrowly tailored DRP should be developed. Paul Tattersfield:The quickest way is to ask the registrars for scam sites most are very helpful and very timely Mary Wong:In relation therefore to the question of whether it is within scope to develop a new rapid takedown procedure - presumably, if the WG agrees that this is not necessary it is because the WG believes that existing mechanisms (i.e. the URS in this case) does indeed adequately address IGO needs? George Kirikos:And hosting companies, or payment processors, etc. Paul Tattersfield:exactly George Paul Tattersfield:Is there a situation where a state or an IGO can inovke immunity for a counter claim or an appeal on a matter initially determined by a court? George Kirikos:But, the UDRP decision should NOT be respected --- de novo means "start from a fresh slate". That's why Option 1 is the option that makes most sense, since the IGO would have failed in its undertakings made, the price paid for utilizing the UDRP. George Kirikos:I disagree. "Secret advice" can't form the basis/foundation for our work. Petter Rindforth:Having servered 16 years as panelist, I agree wih Phils conclusion George Kirikos:As I noted, there could be counter-measures to that (e.g. in rem, sue the registrar/registry etc) Mary Wong:@Paul T, I'm far from an expert but it would seem logical that, once an IGO has submitted to a court's jurisdiction, it cannot piecemeal invoke immunity for a specific part of that suit (e.g. a counterclaim). Paul Tattersfield:agree Mary, however they are only waiving jurisdictional immunity not immunity from execution George Kirikos:@Mary: unless, as Option 3 advocated by Paul Keating, there was only a *limited* waiver in the UDRP, instead of a general waiver of immunity. Mary Wong:On the vitation question (Option 1), staff had also raised the question of whether vitiation is legally correct. George Kirikos:(i.e. the limited waiver would be with respect to just the domain name itself, and nothing else) Paul Tattersfield:I think it worth noting Phil The kind of miscreants and harm that Brian was citing wouldn't even file a UDRP response never start a court action Paul Tattersfield:never mind George Kirikos:@Mary: vitiating has to do with how the Registrars (who are ordered to follow the UDRP) handle the UDRP outcome. George Kirikos:It's not in the courts at all. George Kirikos:i.e. Option #1 says "registrars will disregard the outcome of the UDRP" That is what vitiation achieves. Mary Wong:@George, when we speak of "vitiating" a panel decision, that can have substantive consequences legally. If it is just about how registrars handle the decision, then we may wish to consider using another word instead of "vitiate" (which has a specific legal meaning). George Kirikos:If it achieves the same effect, the wording can change, Mary. Mary Wong:Thanks, George - let's figure it out when we come to the text of the draft Final Report. George Kirikos:http://www.foxnews.com/world/2016/07/12/fraud-what-fraud-watchdogs-f ind-un-in-state-near-denial-about-internal-corruption.html George Kirikos:Here was the quote again: And follow-up often just ends: the U.N. bureaucracy is reluctant to prosecute fraudsters even when discovered. The reason: it may involve lifting "the immunity of witnesses and related United Nations documents, and may exposure the United Nations organizations to counter-claims." George Kirikos:What's so special about domain names, when national govts don't create special procedures to allow IGOs to file cases in the event of fraud? George Kirikos:Due process is *so* important to national authorities that they allow that fraud to continue. George Kirikos:(new hand up, just to add a couple more points re: the specifics of the proposal) Petter Rindforth:Mary: A perfect summary of what I tried to say ;-) Paul Tattersfield:@Mary not all IGOs have immunity - eg EuroControl Paul Tattersfield:Isn't it an ADR? George Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.htm l George Kirikos:http://www.dreyfus.fr/en/marques/france-a-domain-name-transferred-by -udrp-decision-was-finally-returned-to-its-initial-owner/ George Kirikos:An "ADR" is any alternative to courts. :-) George Kirikos:A mediation is also an ADR. George Kirikos:Yes, but those rare cases are going to involve the MOST VALUABLE DOMAIN NAMES. George Kirikos:And, if it's such a "rare case", why is ICANN getting involved --- why not say "it's such a rare case, we'll just let the courts handle it". UDRP wasn't designed for 100% of all potential disputes. Jay Chapman:I agree Phil -very rare. In fact, it will only happen where the domain registrant believes its conduct and domain name are worthy of the utmost protection and defense - that defense should not be limited by us or ICANN George Kirikos:+1 Jay George Kirikos:Forum shopping ---- changing who handles the dispute, i.e. an arbitration panel, vs. a court. Berry Cobb:@Paul - can you provide a souce that states EuroControl does not have immunity? I'm curious as it is listed on the list provided by the GAC. Jay Chapman:Phil, couldn't a domain registrant appeal to a higher court even if the lower court determined that the IGO's immunity to be valid? Paul Tattersfield:The IGOs are not seeking immunity to defend their own assets, they are seeking immunity from a counter claim when they have initiated the original action. George Kirikos:(my hand is new) Mary Wong:@Jay, the success of such an appeal will need to be based on the fact that the initial judge got the law on immunity wrong. Then everything goes back down to the initial court again. Jay Chapman:I understand, Mary - it would be a narrow appeal solely related to the immunity issue Jay Chapman:but an appeal, nonetheless Paul Tattersfield:@Berry yes it is on their list :) - I was looking at quite a few IGOs and their articles I was planning to send something to the list but have been taken away by non ICANN matters - If you have an email address I can send you details before I put them on the list Berry Cobb:@Paul - thanks much. I can just wait until you send to the list. Mary Wong:@Jay, thanks - and this also seems to be what Petter is saying; there is nothing to stop either party from going to court (including appealing from a lower court decision) Jay Chapman:Excellent point on licensee/agent/appointee, George George Kirikos:They wouldn't have to raise that point since they're already in court. George Kirikos:i.e. the contract of adhesion is meaningless, unless you get to BINDING arbitration. George Kirikos:New Hand if others have nothing more. Jay Chapman:have there been any substantive points to consider that argue against the licensee/agent solution? George Kirikos:Not really, Jay. Petter Rindforth:Mary's hand is also up George Kirikos:I had a new hand. George Kirikos:Still 10 minutes left. Paul Tattersfield:Would it be better for any such new (improved) arbitration procedure to be for all UDRP disputes not just IGOs? George Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.htm l Paul Tattersfield:I think they would only be waiving jurisdictional immunity in most jurisdictions George Kirikos:This only goes to the WAIVER aspect. George Kirikos:Personal views, but let's see what others think. Paul Tattersfield:how can you enforce damages if they haven't waived immunity from execution? George Kirikos:Have it on the agenda, so others can input, not just us. George Kirikos:Open court principle , too, for the Option 2. George Kirikos:Multiple possible levels of appeals. George Kirikos:(which some in the chat room seem to support) George Kirikos:Outside our scope to look at arbitration for everyone (that'd be the RPM PDP). George Kirikos:But, I'd be opposed to binding arbitration. I prefer the less rigged system of the courts. George Kirikos:Some IGOs might be only valid in certain countries. George Kirikos:e.g. an IGO in Egypt/Syria might not have immunity in Canada. George Kirikos:(or the USA) Paul Tattersfield:IGOs can only assert immunity in Memberr's jurisdictions George Kirikos:@Paul: and the nature of that immunity will differ, as we know, i.e. functional immunity vs. absolute, etc. George Kirikos:GAC advice was hilarious. George Kirikos:Looks like it was written by WIPO. Jay Chapman:I apprecaite the discussion - thanks to everyone Terri Agnew:The next IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call will take place on Thursday, 20 July 2017 at 16:00 UTC for 90 minutes Jay Chapman:appreciate :) George Kirikos:Bye everyone. Have a great week. Game of Thrones Sunday, woohoo! :-) Paul Tattersfield:Great discussion thanks Phil , Everyone bye all

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Agenda and documents for IGO-INGO Curative Rights PDP Working Group call this week
by Mary Wong July 12, 2017

July 12, 2017

Dear Working Group members, The agenda for our first Working Group call following the open community discussion at ICANN59, scheduled for Thursday 13 July at 1600 UTC, is as follows: 1. Roll call/updates to Statements of Interest 2. Review discussions and feedback from ICANN59 open community session 3. Discuss co-chairs’ Arbitration Elements paper in relation to Recommendation #4 Option 2 4. Agree on any remaining issues to be discussed before Final Report is drafted 5. Consider suggestion to publish Final Report for public comment 6. Next steps For Agenda Item #2, the slides, recording and transcript from the session are available at https://schedule.icann.org/event/B49J/gnso-igo-ingo-curative-rights-protect… For Agenda Item #3, the Co-Chairs’ Discussion Paper is available at the above link, and has also been uploaded to the Working Group wiki page at https://community.icann.org/x/owffAw Thanks and cheers Mary

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Proposed Implementation of GNSO Consensus Policy Recommendations for the Protection of IGO&INGO Identifiers in All gTLDs
by George Kirikos July 8, 2017

July 8, 2017

FYI, ICANN published this last night: https://www.icann.org/public-comments/igo-ingo-protection-2017-05-17-en and conceivably it might impact our work to some degree. More comments later, once I've had time to analyze it fully. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Advice on IGOs from the GAC's Johannesburg Communique
by Mary Wong July 3, 2017

July 3, 2017

Dear Working Group members, You may be interested to know that the GAC Communique from this meeting in Johannesburg (ICANN59) has been released: https://gacweb.icann.org/download/attachments/27132037/GAC%20ICANN59%20Comm… “In respect of IGOs, the GAC advice to the Board is: The GAC reiterates its Advice that IGO access to curative dispute resolution mechanism should: I. be modeled on, but separate from, the existing Uniform Dispute Resolution Policy (UDRP) II. provide standing based on IGOs’ status as public intergovernmental institutions, and III. respect IGOs’ jurisdictional status by facilitating appeals exclusively through arbitration. The GAC expresses concern that a GNSO working group has indicated that it may deliver recommendations which substantially differ from GAC Advice, and calls on the ICANN Board to ensure that such recommendations adequately reflect input and expertise provided by IGOs. RATIONALE This Advice aligns with the view of governments that IGOs perform important public functions for citizens worldwide, and that protecting their identities in the DNS serves to minimize the potential for consumer harm.” Thanks and cheers Mary

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