May 2018 - Gnso-igo-ingo-crp

Very serious issues with The Swaine Memo & the proposed Final Report [pdf version]
by Paul Tattersfield May 14, 2018

May 14, 2018

Thanks George, good suggestion. Please find enclosed a .pdf format file for the record. If anyone else would like any other formats please let me know.

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Very serious issues with The Swaine Memo & the proposed Final Report
by Paul Tattersfield May 14, 2018

May 14, 2018

Further to our discussions on the call last Thursday: As Mary hasn’t yet had chance to post the latest version of the Swaine Memo I have used an extract from the version on the working group Wiki https://community.icann.org/pages/viewpage.action?pageId=56131791 which is marked final and dated 6/17/2016. >From that document: *“3. Discussion (Bottom of page 8) The core question is whether an IGO is “entitled to immunity,” but the baseline assumptions may be disaggregated. The scope of IGO immunity would most clearly be at issue if the Mutual Jurisdiction provision were irrelevant and the IGO had not itself initiated judicial proceedings, since that would risk waiving any immunity to which it may be entitled, including to counterclaims. 20 This might be the case, for example, if a domain-name registrant sought a declaratory judgment against an IGO in relation to some actual or potential infringement. 21 That scenario, though not otherwise of concern here, does usefully isolate the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial. As explained in Part A, the answer depends. IGOs generally enjoy immunity under international law, but different jurisdictions apply the law differently, and even within the same jurisdiction different IGOs may be treated differently. Part B then introduces the complication that any such immunity may be waived through the Mutual Jurisdiction provision, and affording such waiver is not the same thing as violating an IGO’s immunity. Part C then discusses alternative ways to resolve the situation. … “* Green Initiating proceedings waives immunity including counterclaims Blue Scenario (a) below Red Transfers those rights of scenario (a) to scenario (b) The rest of the memo is then based on the incorrect assumption that rights can be transferred between the two scenarios. *Proof* Absent UDRP there are two possible ways the immunity question could come before a court: (a) A TM owner seeks to acquire a domain which an IGO has registered (b) An IGO seeks to acquire a domain which a domain registrant has registered In (a) the IGO would be entitled to raise an immunity defence In (b) the IGO would be required to waive immunity for the court to consider the matter. As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both cases. (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP *Conclusion * The working group has not considered (a) which hides the fact that in (b) an IGO is never entitled to jurisdictional immunity after choosing to initiate proceedings. The incorrect Swaine reasoning introduces irrelevant complexity which confuses rather than clarifies and should therefore have no place in the working group’s final report.

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Notice of Resignation
by Corwin, Philip May 11, 2018

May 11, 2018

Dear Members of the IGO CRP WG: I hereby submit my resignation as Co-Chair of the PDP Working Group on Curative Rights Protections for International Intergovernmental Organizations, effective immediately. When I agreed to serve as a Co-Chair of this WG I expected that it would complete its work within eighteen months. It has now been operating for almost four years, and substantial additional effort will be required to agree upon and file a Final Report. Given that in November 2017 I started a new job with extensive responsibilities, and continue to serve as Co-Chair of the PDP WG reviewing Rights Protection Mechanisms in all gTLDs, I can no longer devote the time and effort required to effectively and responsibly serve as a Co-Chair of this WG. I shall remain a member of this WG and participate in the wrapping up of its work. I could not have asked for a more knowledgeable, even-tempered, or collegial colleague with whom to serve as Co-Chair than Petter Rindforth, and I look forward to supporting his efforts, as well as those of Council Liaison Susan Kawaguchi, to bring this WG to a conclusion. I also thank ICANN policy staff for their invaluable support and advice throughout the course of our work. Sincerely, Philip S. Corwin Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey

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Re: [Gnso-igo-ingo-crp] [Ext] IGO WG - Draft Report in Word Format
by Mary Wong May 11, 2018

May 11, 2018

Thank you Paul – yes, staff intends to send out the Word version of the draft Final Report today. We are doing our best to get that out to everyone within the next hour or so, as we have had to support other meetings and deadlines so we have not been able to fully incorporate feedback from the call yesterday (especially in relation to the 6ter recommendation). Best regards, Mary & Steve From: Paul Keating <Paul(a)law.es> Date: Friday, May 11, 2018 at 14:12 To: Mary Wong <mary.wong(a)icann.org>, "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: [Ext] IGO WG - Draft Report in Word Format Mary, I had thought you agreed to forward the current Draft in WORD format. I have not yet received it. Please send it asap given the need to quietly provide feedback. Thanks, Paul Keating

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IGO WG - Draft Report in Word Format
by Paul Keating May 11, 2018

May 11, 2018

Mary, I had thought you agreed to forward the current Draft in WORD format. I have not yet received it. Please send it asap given the need to quietly provide feedback. Thanks, Paul Keating

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Re: [Gnso-igo-ingo-crp] Current Summary (May 9, 2018) of Public Display of Possible Consensus
by Paul Keating May 10, 2018

May 10, 2018

Phil, I respectfully ask that you halt this bickering. Our mandate - post appeal - was to work towards a consensus. In my mind anything that gets us there is a good thing and should not be ignored. I encourage you to elicit any consensus from those on the call AND to include the results of the poll as well. On 5/10/18, 5:30 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of gnso-igo-ingo-crp(a)icann.org> wrote: >For the record, I object to any display of, reference to, or other use of >the spreadsheet provided by George during today¹s call on the grounds >that it constitutes the results of an illicit poll that was not conducted >in conformity with GNSO WG Guidelines. > >I have no objection to WG members stating their policy preferences during >the call so long as the illicit poll results are not referenced. > >Sent from my iPhone > >> On May 10, 2018, at 10:04 AM, George Kirikos <icann(a)leap.com> wrote: >> >> Hi folks, >> >> In preparation for today's call, I've generated an Excel spreadsheet >> version of the updated Google Spreadsheet: >> >> >>https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAuz315 >>diOKXIj2JoO5XhLzk7C_9ariI3NKF8oOLt3PMsBIZg6JMXSvCiOANV/pubhtml >> >> as well as a PDF of the Summary page. They're attached. If folks have >> additions/updates/changes, let me know. (can easily update the live >> Google spreadsheet; PDF and XLS generation/distribution takes longer). >> >> If ICANN staff would add them to the Wiki for today's call, that'd be >> constructive. >> >> See you in 2 hours. >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >> >> >> >> >>> On Wed, May 9, 2018 at 8:31 PM, George Kirikos <icann(a)leap.com> wrote: >>> Just a quick heads up that I've updated the Google spreadsheet to >>> change Paul T's support for Option #1 to yellow from green (his >>> support depends on what happens with Option #6). I won't regenerate >>> the PDF/XLS at this time (pending any other changes or additions). If >>> there are any other changes desired, please let me know. >>> >>> >>>https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAuz31 >>>5diOKXIj2JoO5XhLzk7C_9ariI3NKF8oOLt3PMsBIZg6JMXSvCiOANV/pubhtml >>> >>> (should update changes automatically within 5 minutes, if you loaded >>> it previously) >>> >>> Sincerely, >>> >>> George Kirikos >>> 416-588-0269 >>> http://www.leap.com/ >>> >>>> On Wed, May 9, 2018 at 7:56 PM, George Kirikos <icann(a)leap.com> wrote: >>>> Here we go --- 11 responses (so far) summarized at: >>>> >>>> >>>>https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAuz3 >>>>15diOKXIj2JoO5XhLzk7C_9ariI3NKF8oOLt3PMsBIZg6JMXSvCiOANV/pubhtml >>>> >>>> and attached as PDF and XLS spreadsheets. >>>> >>>> Happy to add more or make any changes. >>>> >>>> Sincerely, >>>> >>>> George Kirikos >>>> 416-588-0269 >>>> http://www.leap.com/ >>>> >>>> >>>> >>>> >>>>> On Wed, May 9, 2018 at 7:36 PM, George Kirikos <icann(a)leap.com> >>>>>wrote: >>>>> Oops, I forgot to attach the PDF and XLS spreadsheet in the prior >>>>> email (the web link works). But, Paul Tattersfield has just added an >>>>> 11th response, so I will re-send very shortly, after regenerating the >>>>> PDF and XLS. >>>>> >>>>> Sincerely, >>>>> >>>>> George Kirikos >>>>> 416-588-0269 >>>>> http://www.leap.com/ >>>>> >>>>>> On Wed, May 9, 2018 at 7:33 PM, George Kirikos <icann(a)leap.com> >>>>>>wrote: >>>>>> Hi folks, >>>>>> >>>>>> I've summarized the responses to date, for the benefit of tomorrow's >>>>>> call. I'd appreciate it if staff would add these to the wiki and >>>>>> agenda. >>>>>> >>>>>> There have been 10 responses so far (more are certainly welcome), >>>>>>and >>>>>> I've summarized them in a spreadsheet (attached), and also in a PDF >>>>>> (just the first page of the PDF; couldn't see an easy way to get all >>>>>> the other tabs into the PDF automatically; other tabs are just the >>>>>>raw >>>>>> posts). >>>>>> >>>>>> One can also see it via a web browser at: >>>>>> >>>>>> >>>>>>https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAu >>>>>>z315diOKXIj2JoO5XhLzk7C_9ariI3NKF8oOLt3PMsBIZg6JMXSvCiOANV/pubhtml >>>>>> >>>>>> The colour coding is my personal interpretation. I'm happy to make >>>>>>any >>>>>> changes/updates, if folks so desire. >>>>>> >>>>>> Sincerely, >>>>>> >>>>>> George Kirikos >>>>>> 416-588-0269 >>>>>> http://www.leap.com/ >> >> >> <PublicDisplayOfPossibleConsensus-20180510.xlsx> >> <PublicDisplayOfPossibleConsensus-Summary-20180510.pdf> >> _______________________________________________ >> Gnso-igo-ingo-crp mailing list >> Gnso-igo-ingo-crp(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp >_______________________________________________ >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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Recording, attendance & WebEx chat for IGO-INGO Curative Rights Protection PDP on 10 May 2018
by Julie Bisland May 10, 2018

May 10, 2018

Dear All, Please find the WebEx Chat attached, and the attendance and MP3 recording below for the IGO-INGO Access to Curative Rights Protection Mechanisms held on Thursday, 10 May 2018 at 16:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-10may18-en.mp3 The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar Attendees: Crystal Ondo David Maher George Kirikos Jay Chapman Jim Bikoff Nat Cohen Paul Raynor Keating Paul Tattersfield Petter Rindforth Phil Corwin Reg Levy Susan Kawaguchi Zak Muscovitch Apologies: none ICANN staff: Mary Wong Steve Chan Berry Cobb Julie Bisland ** 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/9hUFBQ Thank you. Kind regards, Julie

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Keeping the momentum moving forward -- the topic of subsidies for IGOs (rec #4)
by George Kirikos May 10, 2018

May 10, 2018

Hi folks, Good call today. Let's keep the momentum moving forward constructively. I think there are mixed opinions on the topic of ICANN subsidizing UDRP/URS actions brought by IGOs (recommendation #4). On principle, I'm opposed to ICANN subsidizing anyone's disputes (and said so during the public comments to the initial draft report). Others have said the same. I'm not sure there's a majority or consensus. With ICANN's budgetary issues, it might also be an issue of whether the money even exists (perhaps take it from GAC funding). But let's see if we might be able to think outside the box. On the call, I suggested one modification might be to make sure equal funds are on both sides (e.g. if the IGO files a disputes, both its fees and the fees of the respondent/registrant would be covered equally). That would be better, in my view, than what's currently on the table. Another possibility, which creates linkage with other options for different recommendations, might be the following. There's currently quite a lot of support, given the emails of the past week, for Option #1, and slightly less support for Option #6: https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAuz315di… As a means of finishing things up cleanly and definitively now, and in this PDP, rather than using Option #4 (which seems to be the most popular), how about something like this: (I'll use the example from Option #6) - we know that mediation saves both sides money in UDRP/URS, as 30% of the Nominet cases get settled - take some of that money that is saved by both sides (i.e. a small fee from them when there's successful mediation, i.e. a reduction in otherwise rebated fees), and apportion it to the subsidization of IGO UDRP/URS disputes (i.e. some money gets kicked backed to ICANN, a little fund is created, e.g. $100/dispute in terms of settled cases goes back to ICANN, to be redistributed via a fund for UDRP/URS disputes brought by (qualified) IGOs (and both sides can be funded, if the dispute is defended) - we go with Option #1 (which is incorporated into Option #6 anyhow, if the quirk of process gets encountered) as the solution to that procedural quirk (if it goes to court, and if immunity is asserted successfully, then both sides go back to square one, UDRP/URS result is set aside, and they can fight it out from scratch without any interference from ICANN's policies. - one might add something like "if they take the subsidies, then they're bound to...." Anyhow, the above occurred to me during the call itself, but I wasn't sure how to present it, so I thought I'd send it to the list. It's kind of a "hidden tax" on mediation settlements, though, so obviously objectionable from that aspect (trying to be pragmatic, though). The complexity is that it intertwines the various options --- representing a bit of "horse trading". But, it tries to get a win/win/win out of things, in an attempt to move us forward. One could have done the above without starting from Option #6 (just starting from Option #1), but then one wouldn't have a pool of money (i.e. generated from successfully mediated cases) to fund all this. Otherwise, there'd need to be money from ICANN (which is already part of Rec #4, but I doubt that money exists). Anyhow, just something to contemplate. Might be way too complex. I don't think we've explored "horse trading" between the different recommendations before, to come to a global consensus (we kind of talked about it in the RPM PDP, although at much earlier stage of that PDP than where we are in this IGO PDP). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Current Summary (May 9, 2018) of Public Display of Possible Consensus
by George Kirikos May 10, 2018

May 10, 2018

Hi folks, I've summarized the responses to date, for the benefit of tomorrow's call. I'd appreciate it if staff would add these to the wiki and agenda. There have been 10 responses so far (more are certainly welcome), and I've summarized them in a spreadsheet (attached), and also in a PDF (just the first page of the PDF; couldn't see an easy way to get all the other tabs into the PDF automatically; other tabs are just the raw posts). One can also see it via a web browser at: https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAuz315di… The colour coding is my personal interpretation. I'm happy to make any changes/updates, if folks so desire. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Six Options: Weighing In
by Reg Levy May 9, 2018

May 9, 2018

Name: Reg Levy Option 1: YES Option 2: NO Option 3: NO Option 4: GRUDGINGLY YES IF NECESSARY Option 5: NO Option 6: NEEDS REFINEMENT BUT MIGHT WORK Option 1 seems the most reasonable under the circumstances and the most fair to both parties to such a dispute. If, for some reason, option 1 is absolutely untenable, I would grudgingly support option 4. I note, however, that, in order to not be seen as entirely buck-passing with regard to our remit, we ought rather to submit to the RPM WG a strong recommendation to proceed with option 1. (Option 2 I find unacceptable because I don't find most recent registration date to be sufficiently determinative of an end user's intent to abrogate their rights. Option 3 would be far more elegant if there were simply an appeal process built into URS/UDRP but there isn't, since a losing party can appeal to local courts…except where an IGO is involved. Option 5 is acceptable but in light of the perfectly-reasonable option 4 as a poorer alternative to option 1, unnecessary. Option 6 might be acceptable but would require further refinement.) Apologies for my brief absence from the list. My SOI has been updated. Reg Levy (310) 963-7135 Sent from my iPhone.

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