July 2017 - Gnso-igo-ingo-crp

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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