September 2017 - Gnso-igo-ingo-crp

Proposed agenda for Working Group call on 14 September
by Steve Chan Sept. 14, 2017

Sept. 14, 2017

Dear WG Members, Below, please find the proposed agenda for the Working Group call scheduled for 16:00 UTC on 14 September. Roll call/updates to SOI Review of Updated Recommendation 4 Options Diagram and Discussion of Questions Below: Should limitation of the court review or arbitration to disposition of the domain name require mutual agreement of the registrant and IGO, or should we recommend that limitation for one or both appeal forums? Should the registrant be permitted to choose to go directly to arbitration rather than judicial appeal if it wishes to? AOB For agenda item 2, please find an updated diagram, that is intended to take into account discussions from the previous WG meeting. 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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Recordings, attendance & AC Chat from IGO-INGO Curative Rights Protection PDP WG
by Michelle DeSmyter Sept. 7, 2017

Sept. 7, 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, 07 September 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-07sep17-en.mp3 AC Recording: https://participate.icann.org/p6ylzspef6r/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos Petter Rindforth Paul Tattersfield Phil Corwin Jay Chapman Osvaldo Novoa David Maher Apologies: Mason Cole ICANN staff: Mary Wong Berry Cobb Dennis Chang Michelle DeSmyter ** 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/ Wiki Agenda page: https://community.icann.org/x/pgghB Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for Thursday, 07 September 2017 Michelle DeSmyter:Dear All, Welcome to the IGO-INGO Curative Rights Protection PDP Working Group call on Thursday, 07 September 2017 at 16:00 UTC. Michelle DeSmyter:Agenda Wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Michelle DeSmyter:Hi there George and Petter!! George Kirikos:Hi Michelle. Petter Rindforth:Hi there! George Kirikos:Hi Petter. Osvaldo Novoa:Hello all Michelle DeSmyter:Hi there Osvaldo, welcome! George Kirikos:Hi Osvaldo. George Kirikos:Might be wise to send out a '2 minute warning' email? Michelle DeSmyter:absolutely George Kirikos:There's probably a way to automate that, so the reminders get send out a week before the call, a day before, and 5 minutes before. :-) Philip Corwin:dialing in/on hold George Kirikos:Welcome Phil and PaulT. Paul Tattersfield:Hi George, everyone George Kirikos:So, Jay can be added to the "audio only" in the top right pod. George Kirikos:You can tell how they've been lobbied, by the evolution of that advice. George Kirikos:e.g. "no additional protections" in 2012! George Kirikos:+1 Petter. They didn't follow through with that "working with". Mary Wong:Petter and Phil did have a meeting with the GAC leadership in Buenos Aires in June 2015, though. Paul Tattersfield:There seems to be a change of direction after during Hydrabad 2016 after IGO Small Group input Philip Corwin:@Mary--yes it was an early morning "breakfast meeting" -- with no breakfast, -- and NO Coffee! ;-) Mary Wong:@Phil, yeah, I wish I'd known beforehand about the lack of facilities so I could have brought you all some coffee from downstairs! Jay Chapman:Thanks, George, I'm still on the phone, but now arrived and have joined here on AC Paul Tattersfield:Brian referenced a letter at Hyderabad from the UN Secretary Ben Ki-Moon to foreign ministers of the United member States could we as a working group ask for a copy of that latter please? George Kirikos:Great, Jay. Welcome. Mary Wong:@Paul, I think we may have circulated that previously but we'll be happy to (re)circulate. Paul Tattersfield:Thank you Mary that would be very helpful George Kirikos:Not to change the 3-prongs, right. Mary Wong:One thing the group probably should do, as we begin discussions of text for a Final Report, is to take a look at the UDRP and URS policy language just to be sure. George Kirikos:Agrees to arbitration, only in the event they win on immunity in court. Mary Wong:At the filing stage, the IGO will be asked to agree to arbitration (in the limited circumstance per Rec 4). It will have the option also to elect for limited jurisdiction (court to rule only on domain ownership). Mary Wong:@George, yes - conditioned on the criteria the WG has already discussed. George Kirikos:Under what circumstances would an IGO say "NO" to the "limited scope of court action"? George Kirikos:i.e. it seems they would *always* say "YES", because it's a more limited waiver than the existing waiver. Mary Wong:Staff is happy to follow up/respond to Phil's observations as well Mary Wong:May we explain? George Kirikos:This is basically Option #3, for that box. George Kirikos:Diamond, even. Paul Tattersfield:The mutual jurisdiction clause is only a waiver of jurisidictional immunity, they have not given a waiver of immunity from ececution they can iwaive mmunity from execution when ever they choose George Kirikos:Is Phil's a new hand? Maybe Mary should speak, before we forget this point? Paul Tattersfield:bad typo sorry Philip Corwin:Yes, I had a quick response--but Mary goes first Paul Tattersfield:corrected The mutual jurisdiction clause is only a waiver of jurisidictional immunity, they have not given a waiver of immunity from ececution they can assert mmunity from execution when ver they choose George Kirikos:Same point as before --- it seems to me that under those circumstances, Registrant will always say "Yes" to arbitration if the IGO wins on immunity. George Kirikos:i.e. it's codifying "option #2", without having to complicate the chart by pretending there are real choices. One choice always dominates in those boxes. George Kirikos:It's difficult, because a lawsuit might even be filed before making any response to the UDRP. George Kirikos:Right, Mary --- the right hand side is Option #3 or Option #6. Mary Wong:@George, exactly George Kirikos:Refusal to participate = default decision Mary Wong:@Phil, I can respond to that point you just raised George Kirikos:Same as if there's a refusal to participate in the court case. George Kirikos:Since these are all de novo. Philip Corwin:Agree that the risk of an IGO participating in a final scenario arbitration is slim, but we should still adddress since it is not zero Philip Corwin:Thanks for this clarification, Mary Philip Corwin:To clairify, risk of of an IGO's refusal is slim Mary Wong:@Petter, yes taht is the idea too - since MJ is dealt with in the Rules, staff thought the same treatment can be given to the arbitration agreement Mary Wong:Yes Mary Wong:@George, that was shorthand to fit in the box :) Mary Wong:@George, if the registrant goes to court, then nothing on this flow chart will apply, right? George Kirikos:@Mary: it depends, e.g. if the IGO has agreed to quasi in remd, then that might affect things differently. George Kirikos:*quasi in rem. George Kirikos:Or, there's no UDRP decision that "stands". George Kirikos:(if panel hasn't made a decision) Mary Wong:We were avoiding specific or complex legal doctrines - the "limited scope" reference is really, in plain English, that the IGO agrees that a court action will be limited only to a decision on the ownership and disposition of the domain(s) in dispute. George Kirikos:Right, if we can incorporate Options #3, and #6 into Option #2, *and* are able to get a full consensus, then that might be acceptable. George Kirikos:(even elements of option #4, re: record keeping, and review after certain number of cases, etc.) George Kirikos:I took it to a court action. :-) Mary Wong:@George, on that last point, if it helps, the GNSO rules now require that PDP recommendations include (where practicable) notes on periodic review and suggested metrics for such. George Kirikos:(before it was decided) George Kirikos:So did others. George Kirikos:@Mary: right, we just need to make sure that the data is collected (i.e. all the relevant cases, etc.), to make that review easier (e.g. see the problems in the RPM PDP, cough cough!) Philip Corwin:I think we can certainly discuss including in the Final report a recommendation that the results of whatever we recommend be reviewed in the future, either after the passage of a set amount of time or a set number of arbitrations (whichever comes first) George Kirikos:i.e. data is collected automatically as part of the policy. Paul Tattersfield:set number of arbitrations lol George Kirikos:@PaulT: handles the scenario where there are suddenly hundreds of IGO cases, due to some loophole they identify, or bad arbitrations. Mary Wong:Just a cautionary note that the metric(s) should be something that doesn't depend on self-reporting, but can be collected objectively e.g. from providers. Philip Corwin:Providers will know when a UDRP decision has been stayed because a concurrent or post-decision judicial action has been filed George Kirikos:@Mary: yes, the full cases (i.e. can't be secret/private arbitrations; would need to be able to have others view the cases, both decisions and arguments of the sides, like open justice in the USA, or the open court principle in Canada) Paul Tattersfield:@Mary in that scenario we have failed in that we have done more damage than leaving the status quo Philip Corwin:very hard to get registrars to comply with data requests Paul Tattersfield:sorry @George Mary Wong:The text piece is really just an explanation of the flow chart, with additional background from past discussions George Kirikos:Yes, I can see it. Osvaldo Novoa:I can see it George Kirikos:Plus it went out by email earlier, so there's that PDF. George Kirikos:Yes, our final report can't give out "new options" -- we have to pick something. Mary Wong:THe most recent GAC advice is on Pages 5 (bottom) and 6 Paul Tattersfield:All that has happened is the IGO's have lobbied the GAC to support their position instead of participating in this working group Paul Tattersfield:the change in the GAC position has evolved almost in parrallel to thiw WG Mary Wong:Note that the IGO Small Group was formed around the time of the Los Angeles Communique (Oct 2014) George Kirikos:Having the court case only be about the fate of the domain name would substantially narrow the issues in dispute. George Kirikos:That narrowing of the issues should result in lower costs for all parties. George Kirikos:We've focused on the UDRP, but this would also need to be done for the URS, I suppose? Paul Tattersfield:turns up in court so he can hand over his illicit proceeds Mary Wong:@George, yes Paul Tattersfield:Some of those have only a handful members some have no immunity rights George Kirikos:There was nothing special about the GAC list, though. Philip Corwin:The only thing "special" abut the GAC list is that the GAC has adopted it and therefore would not be expected to object to its use as a basis for defining IGOs. Whether we should reference or adopt it is a separate issue. Philip Corwin:Again, I'm for avoiding a definition if at all possible Mary Wong:I suppose we can presume that those on the GAC list can be considered IGOs, but it's only an inclusive, not exhaustive, list? Paul Tattersfield:Same for the Pacific Salmon IGO, same for the EU all IGO's are regional to some extent the UN probably has the most members (General Convention) Paul Tattersfield:It also depends on the articles of eacy IGO George Kirikos:+1 Paul. George Kirikos:e.g. and how each nation treats that IGO (in Canada, that depends on various Orders in Council, I believe). George Kirikos:(via the Federal Government) Mary Wong:The question isn't whether a country recognizes, or is a member of, an IGO, though, is it? It's more fundamental - i,e, is the org created by treaty by govts? Paul Tattersfield:There are also many other worthy organizations who are not IGOs but do equally good works George Kirikos:@Mary: Right, by a court in a certain nation will not recognize the immunity of some valid IGOs, because it's not a recognied IGO in that country. Mary Wong:Right, that goes to immunity (it may be a real IGO but the court doesn't recognize it is immune), not to its factual status as IGO. George Kirikos:So, they might have 'immunity' against some domain name owners (in some nations), but not others. George Kirikos:Agreed, Mary. George Kirikos:Might need to append the word limits, in these cases. George Kirikos:(although, there aren't limits for Appendices) Paul Tattersfield:also where the registrar is located as well as th e registrant George Kirikos:Might need to amend the time limits. George Kirikos:Because, it's a complex question for a registrant to make those decisions whether it believes it is a real IGO, or what the scope of that IGO's rights are in that country. George Kirikos:(i.e. re: immunity) George Kirikos:IGOs, and complainants in general, have unlimited time to prepare their complaints. Respondents (domain owners) are under the gun, with only 20 days to respond. Philip Corwin:Yes, we can look at some modest extension of the time limits given the extra decision point for the registrant George Kirikos:Have staff started making amendments to the draft final report where we've already come to consensus? (i.e. all the other stuff, except this narrow point) Philip Corwin:NO--last week of October is start of ICANN 60/not November George Kirikos:i.e. changing Article 6ter stuff, etc? George Kirikos:(i.e. softening that recommendation, and a few other places where we agreed to make changes) Mary Wong:Did I say November? SOrry, I meant last week of October (as Phil noted) Mary Wong:@George, yes we have started Paul Tattersfield:thanks bye Philip Corwin:Yes, you said Nov George Kirikos:Bye everyone.

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Document for discussion (Re: Proposed agenda for Working Group call on 7 September)
by Mary Wong Sept. 7, 2017

Sept. 7, 2017

Dear all, For our call coming up shortly, and as noted for Agenda Item #2 below, please find attached a process flow diagram for discussion on the call, along with a short explanatory note. Please note that this example is a staff draft that we prepared at the co-chairs’ request, to try to develop a possible proposal that would combine Option 2 (arbitration) with workable elements from some of the other Options that have been discussed by the Working Group. As such, this is not a proposal that the co-chairs have had the chance to fully review. Phil and Petter’s initial feedback reflect some concerns they have that they will outline more fully on the call. Essentially, they would like to reduce and minimize the decision points for all parties, accomplish as much as possible via Rules rather than Policy amendments, and overall simplify the proposal to make it more comprehensible to registrants and IGOs, as well as Council and the Board when they review a Final Report. We apologize for the lateness of this distribution, as the co-chairs and staff have been discussing various ways in which we may be able to prepare a proposal or examples for moving forward. Please be assured that we will explain the process flow in detail on the call, and you will have time to consider and discuss it both on and after the call. Thank you. Cheers Mary From: Mary Wong <mary.wong(a)icann.org> Date: Wednesday, September 6, 2017 at 19:20 To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Proposed agenda for Working Group call on 7 September Dear all, Here is the proposed agenda for our Working Group call scheduled for 1600 UTC on 7 September: 1. Roll call/updates to SOI 2. Co-Chairs' presentation and proposal relating to arbitration and the various options discussed in the context of IGO jurisdictional immunity 3. Review of relevant GAC advice on arbitration 4. Next steps - (a) moving toward consensus and a final recommendation on this topic; (b) decision on publication of draft Final Report for public comment Please note that the co-chairs and staff are working to circulate a document relating to Agenda Item #2 before the call. For Agenda Item #3, you may wish to refer to the attached compilation of GAC advice on IGO protections, focusing in particular on Pages 5-6 which contain the most recent GAC advice on this topic (from ICANN58 and ICANN59). Thanks and cheers Mary

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Proposed agenda for Working Group call on 7 September
by Mary Wong Sept. 6, 2017

Sept. 6, 2017

Dear all, Here is the proposed agenda for our Working Group call scheduled for 1600 UTC on 7 September: 1. Roll call/updates to SOI 2. Co-Chairs' presentation and proposal relating to arbitration and the various options discussed in the context of IGO jurisdictional immunity 3. Review of relevant GAC advice on arbitration 4. Next steps - (a) moving toward consensus and a final recommendation on this topic; (b) decision on publication of draft Final Report for public comment Please note that the co-chairs and staff are working to circulate a document relating to Agenda Item #2 before the call. For Agenda Item #3, you may wish to refer to the attached compilation of GAC advice on IGO protections, focusing in particular on Pages 5-6 which contain the most recent GAC advice on this topic (from ICANN58 and ICANN59). Thanks and cheers Mary

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