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World Bank Cease & Desist letters?
by George Kirikos July 15, 2016

July 15, 2016

Hi folks, During yesterday's call, David Satola of the World Bank mentioned that: "....when the guidebook came out for the new gTLD round in late 2011, 2012, we took a look at the number of domains that others had registered using World Bank in one form or another. And at that - excuse me - at that time there were - I forget the exact number but something like 300 domains. And we looked at them and determined that there were about 50 or 60 that we really cared about. And were able to deal with most of them through cease and desist letters." That quote was from page 8 of the PDF transcript, see: http://gnso.icann.org/en/meetings/transcript-igo-ingo-crp-access-14jul16-en… Firstly, I found the last sentence very odd. A typical cease and desist letter, in its basic form, tells the recipient "Stop doing what you're doing, and don't do it again, OR ELSE...." What did the World Bank use as their "OR ELSE"?? I'm assuming that their C&Ds don't contain an "OR ELSE" of "we'll buy you dinner" or "we'll have a good cry" or "we'll call your mommy". Most senders (perhaps all?) of C&D letters will threaten a lawsuit: https://en.wikipedia.org/wiki/Cease_and_desist So, I find it puzzling that the World Bank is sending these C&Ds, which likely contain either explicit or implicit threats of some sort, yet is telling our PDP working group that they're concerned about "immunity" -- certainly they would have to waive immunity to implement any legal threats contained in their C&Ds, otherwise those C&Ds are toothless. Secondly, it was educational that the numbers (50 or 60 domains they cared about, most dealt with successfully by C&Ds) are so small, even for a relatively large IGO like the World Bank. When we weigh the costs vs. the benefits of any policy recommendation, the magnitude of the claimed "problem" is a critical consideration. Here, the magnitude is extremely small. We don't make "special rules" for Lego, as an example, which has filed an enormous number of UDRPs to deal with cybersquatting. Nor for companies like Microsoft, Verizon, Google, Disney and others which each have tens of thousands of defensive domain name registrations and many UDRP cases. It's very sad that we are getting this important data so late in this PDP. I think if the prior working group (the one that preceded the creation of this PDP) had these kinds of miniscule figures, it would have weighed heavily against the creation of our PDP by the GNSO Council. There are many, many "minor irritants" on the internet, and we should be prioritizing limited resources to handle the major issues first. It's disturbing that a small group of well-connected IGOs has "jumped the queue" to have their minor irritants use up so much time and energy of the many volunteers (and paid staff) over the past few years. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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attendance and mp3 / IGO-INGO Curative Rights Protection PDP WG Meeting - Thursday, 14 July 2016 at 16:00 UTC
by Terri Agnew July 14, 2016

July 14, 2016

Dear All, Please find the attendance and MP3 recording for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 14 July 2016 at 16:00 UTC at: http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-14jul16-en.mp3 On page: http://gnso.icann.org/en/group-activities/calendar#jul The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<http://gnso.icann.org/en/group-activities/calendar#nov> Attendees: David Maher - PIR George Kirikos - Individual Petter Rindforth - IPC Phil Corwin - BC Jay Chapman - Individual Osvaldo Nova - ISPCP Paul Keating - NCUC Holly Lance - IPC Keith Drazek - RySG Jim Bikoff - IPC Guest Speakers: Jon Passaro (OECD) David Satola (World Bank) Apologies: Lori Schulman - IPC ICANN staff: Mary Wong Steve Chan David Tait Terri Agnew ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/ Wiki page: https://community.icann.org/x/9iCfAg Thank you. Kind regards, Terri Agnew ------------------------------- Adobe Connect chat transcript for Thursday, 14 July 2016 Terri Agnew: Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the Thursday, 14 July 2016 at 16:00 UTC Terri Agnew:wiki agenda page: https://community.icann.org/x/6AObAw Osvaldo Novoa:Hello, it seems I am a bit early Petter Rindforth:Hi, you are perfectly on time (2 min's left) Mary Wong:@Phil, I see you found a spot to get on AC and the call too! Philip Corwin:Yes. hello all Mary Wong:@Petter, let us know when you'd like us to begin the call. Petter Rindforth:waiting to get online... George Kirikos:Hi folks. George Kirikos:No one is picking up at the telephone bridge. George Kirikos:2 mins on hold... Mary Wong:Apologies for the delay; we have asked the operator to check. George Kirikos:Still can't get to an operator. George Kirikos:Usually they're good at picking up within 10 secs. George Kirikos:I'm in. George Kirikos:I sent a quick email to the list re: the IGO letter. Jon Passaro (OECD):Thanks for having us. Terri Agnew:Welcome Jay Chapman Jay Chapman:Hi Terri - thanks George Kirikos:Good points, Petter. The Supreme Court of Canada decision reinforced that. Philip Corwin:Noting for record that Mr. Passaro and Mr. Satola are guests of the WG today in order to orally present their views on the Swaine memo. They, as well as other IGO representatives, are of course welcome to become members of the WG at any time, even at this late stage of our proceedings. George Kirikos:http://www.canlii.org/en/ca/scc/doc/2016/2016scc15/2016scc15.html George Kirikos:Paragraph 59 explicitly compared one treaty (for World Bank) from a different treaty in a different Supreme Court of Canada case involving Northwest Atlantic Fisheries Organization. George Kirikos:I'd like to point out another case I found, where diplomatic immunity was waived in a drunk driving case. http://www.thelocal.ch/20130604/french-arrest-swiss-ambassador-for-drunk-dr… Jay Chapman:Good points, Phil Mary Wong:Four possible options were identified by Prof Swaine in his memo for the WG to consider as part of its deliberations. George Kirikos:That was a diplomat from the OECD. So, immunity is routinely waived, even by the OECD. Mary Wong:There may, of course, also be others - presumably this WG will begin considering all identified options in the phase of our discussions that we're beginning to embark on. George Kirikos:The same story, by Reuters http://www.reuters.com/article/us-swiss-diplomat-idUSBRE9530JA20130604 Philip Corwin:Agree that we should discuss all proposed options as we prepare to adopt final recommendationsand issue report. George Kirikos:A reminder that the World Bank expressly waived immunity and was successful via the UDRP itself. I'm puzzled as to why they now feel differently, given their past decision. It seems to me that the UDRP worked for them. George Kirikos:(David Satola is from the World Bank) Paul Kea:@Petter, what does this case have to do with a UDRP in which teh IGO itself is a party:? George Kirikos:The Supreme Court of Canada did find that they *could* waive that immunity over their archives (but had not expressly done so). See my email sent to the mailing list. Mary Wong:@George, based on the current discussion, I suppose the issue at hand is that by submitting to Mutual Jurisdiction by filing a complaint, an IGO would almost certainly - and routinely - waive any immunity to which it might otherwise be entitled. George Kirikos:+1 Petter. It would be nice to have an exact list of domain names that the IGOs feel are "open to dispute", that they UDRP isn't allowing them to challenge. George Kirikos:e.g. maybe the World Bank covets WB.com (owned by Warner Brothers), and feels that they'd have better luck in an arbitration, rather than in national courts. Terri Agnew:James Bikoff has joined on audio George Kirikos:@Mary: It would not be entitled to immunity had it brought the case in courts, instead of using the UDRP in the first place. George Kirikos:Cost is an issue for *every* complainant. I think the budget of the World Bank, OECD, etc. far exceeds that of many other prospective complainants have....why should this PDP be more sympathetic? Jon Passaro (OECD):Can everyone hear me? George Kirikos:*6 to unmute. Jon Passaro (OECD):Hold on I will dial in via audio bridge Jon Passaro (OECD):Sorry everyone I am dialing in via th audio bridge George Kirikos:Rarely and exceptionally? We've counted numerous examples of that waiver. George Kirikos:(at least 3 by the World Bank itself) George Kirikos:I don't agree that the Jan 15 statements are correct, given counterexamples have been provided to demonstrate that they're not correct. George Kirikos:(January 2015) Paul Kea:@Phil, Can you ask if the current UDRP Mutual Jurisdiction would work if it wasa ccompanied by a corresponding waiver by the Respondent of a right to recover damages. This would not be an obligation but would give the IGO the ability to terminate the UDRP. George Kirikos:Can we also ask about the workaround via assignment? (the UNITAID example, footnote 97, page 26 of Swaine Report) Mary Wong:@Paul, we will note your question/suggestion as one option that can be discussed, on top of the ones already noted in the Swaine memo (such as the one George has just highlighted). George Kirikos:Thanks Mary. George Kirikos:+1 Phil. It's a broad statement, i.e. "we reserve to dispute findings that don't agree with us" :-) George Kirikos:They *do* waive their immunity, all the time. George Kirikos:Every ICANN Registrar agreement indeed specifies a jurisdiction for disputes. Philip Corwin:WE expect to have at least a preliminary report and recommendations out for comment before ICANN57 in November, so we are looking at three months to get there. George Kirikos:Mary has her hand up. Jon Passaro (OECD):Thank you again for having us Philip Corwin:Thanks for joining us Jay Chapman:Thanks for attending, Jon & David David Satola:Thanks also to the Working Group for having us. I'll be signing off now. George Kirikos:2nd option includes things like greater education on how IGOs can use the current UDRP. George Kirikos:(e.g like UNITAID, via assignment, etc.) George Kirikos:"Temporary" measures should have had a sunset clause. George Kirikos:Otherwise, they become permanent due to inertia. George Kirikos:Bye folks. Jay Chapman:Thanks, all Paul Keating:thanks Mary Wong:Thanks Petter, Phil, all! Osvaldo Novoa:Thank you, bye Philip Corwin:Bye all

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Agenda and documents for WG call on Thursday 14 July 2016
by Mary Wong July 14, 2016

July 14, 2016

Dear Working Group members, The proposed draft agenda for our next meeting, scheduled for Thursday 14 July at 1600 UTC, is as follows; please note that it is subject to change pending further discussions between the co-chairs and staff: 1. Roll call/updates to Statements of Interest 2. Brief review of ICANN56 discussion on external legal expert opinion 3. Input on memo from Professor Swaine by IGO representatives (see attached document) 4. Begin discussion of possible policy options – (i) modify UDRP/URS (based on alternatives identified to date, or other suggestions); (ii) recommend no changes to either process; or (iii) develop new, separate procedure (per the Working Group Charter) 5. Next steps – timeline to Initial Report, and date of next meeting Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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UN Human Rights Council: "online rights must be protected"
by George Kirikos July 1, 2016

July 1, 2016

Hi folks, The United Nations Human Rights Council passed an important resolution regarding online freedom today: https://techcrunch.com/2016/07/01/un-agrees-to-adopt-expanded-resolution-on… http://www.africanews.com/2016/07/01/online-rights-must-be-protected-un-con… In particular, they affirmed that "the same rights that people have offline must also be protected online." This informs our working group, given that in the offline world, disputes regarding IGO identifiers would be handled by national courts -- as per Article 8 of the Universal Declaration of Human Rights. http://www.un.org/en/universal-declaration-human-rights/ So, the suggestion that IGOs "require" us to "do something different", because "this is the internet, and the internet is different" is not consistent with the resolution that was just passed. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Working Group open meeting at ICANN56
by Mary Wong June 28, 2016

June 28, 2016

Dear all, In case you have not marked your calendars, the next Working Group meeting is scheduled to take place during ICANN56 next week in Helsinki. It will be held on Tuesday 28 June, from 13:30-15:00 Helsinki time: http://sched.co/7Gl4. As this WG meeting will take place during an ICANN Public Meeting, call-in and remote participation details will not be the same as for our regular WG calls. You should have received an email yesterday from Terri Agnew with information about the “one stop” wiki page that the GNSO Secretariat has created for all GNSO-related sessions at ICANN56, including our WG meeting. For your convenience, here is the link: https://community.icann.org/x/yCWOAw. For the full ICANN56 meeting schedule, please see https://meetings.icann.org/en/icann56-sched (this is also downloadable via mobile app). Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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ICANN56: GNSO Sessions How to Get Organized and Remote Participation Details
by Terri Agnew June 23, 2016

June 23, 2016

Dear all, Pre-ICANN meeting email inboxes are full at the best of times, so the GNSO SO/AC Support team has done away with the individual Remote Participation (RP) details and have created a one-stop wiki page for all your RP queries. In addition to this, ICANN meetings' team has put together a new ICANN meeting website which allows you to download all GNSO-related meetings to your inbox calendar in one go. 2 LINKS TO BOOKMARK NOW: ICANN56 Meeting Schedule<https://icann562016.sched.org/> GNSO Remote Participation w<https://community.icann.org/x/yCWOAw>iki page<https://community.icann.org/x/yCWOAw> Step 1 Go to the Meeting Schedule webpage, and if not done yet, create a log in when prompted. Every session on the schedule ca be selected and added to your calendar inbox. To get a general description of the session, please hover your mouse over the session title and a summary of the session will appear as well as a "add to my schedule" option. Step 2 Please download the ICANN56 Mobile App to automatically receive the latest updates to your schedule (available on Apple and Android products, look for "ICANN56") Step 3 All Adobe Connect rooms (which can be found on the session information on the Meeting Schedule and on the GNSO Remote Participation wikip age) will provide audio streaming. If you cannot join an Adobe Connect room for a session, and will need to dial in with your phone, please refer to the GNSO Remote Participation wiki page for the audio pass codes and dial in numbers. Please also follow the previous steps if you wish to take part in the session over the phone. Glen de St Gery and Terri Agnew will be onsite to assist you directly. For all GNSO meeting related queries (RP or others), please email us at: gnso-secs(a)icann.org<applewebdata://FB60497E-61D8-4FE9-BF9C-EB238191E416/gnso-secs@icann.org> and we will be more than happy to assist! Kind regards, GNSO SO/AC Support team

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Updated memo from Professor Swaine
by Mary Wong June 20, 2016

June 20, 2016

Dear WG members, Please find attached the updated legal memo from Professor Swaine. The basic structure remains the same; in particular, the detailed treatment of the differences between absolute, restrictive and functional immunity. In a number of area, Professor Swaine has attempted to clarify statements and explanations that may have been confusing in the earlier version. In particular, WG members may be interested in his concise summary of the topic on pages 2-3 of the memo; the addition of more information in the footnotes concerning case law and the US government’s position as to obligations under Article 6ter of the Paris Convention, and the more detailed discussion of the questions on waiver and possible changes to the Mutual Jurisdiction requirement at the end of the memo. Professor Swaine also notes in the memo the difference between a state’s sovereign immunity and an IGO’s immunity, and the potential problems an IGO may have enforcing foreign marks even under the current trademark-oriented UDRP. Staff will work with Petter and Phil on an agenda for the upcoming WG meeting at ICANN56 in Helsinki, which we will circulate as soon as practicable. As the Helsinki session is an open meeting, it is possible that we will be joined by interested community members outside this WG. Please note that the Helsinki session is currently scheduled for Tuesday 28 June, from 13:30-15:00 local time. We will send out remote participation details as soon as they are available so that members who will not be present in Helsinki can nevertheless join the meeting. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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Redline version (Re: Updated memo from Professor Swaine)
by Mary Wong June 20, 2016

June 20, 2016

Dear George and everyone – yes, of course; my apologies that I hadn’t done so! Please find the redlined, Word version attached; however, for purposes of publication, circulation and such please regard the clean PDF version as authoritative since this redline was generated by me and not the Professor. Thanks and cheers Mary On 6/20/16, 10:36, "George Kirikos" <icann(a)leap.com> wrote: Thanks, Mary. If it's possible to generate a redline version, to quickly and efficiently compare with the earlier draft, that'd be useful. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Jun 20, 2016 at 10:26 AM, Mary Wong <mary.wong(a)icann.org> wrote: > Dear WG members, > > > > Please find attached the updated legal memo from Professor Swaine. The basic > structure remains the same; in particular, the detailed treatment of the > differences between absolute, restrictive and functional immunity. In a > number of area, Professor Swaine has attempted to clarify statements and > explanations that may have been confusing in the earlier version. In > particular, WG members may be interested in his concise summary of the topic > on pages 2-3 of the memo; the addition of more information in the footnotes > concerning case law and the US government’s position as to obligations under > Article 6ter of the Paris Convention, and the more detailed discussion of > the questions on waiver and possible changes to the Mutual Jurisdiction > requirement at the end of the memo. Professor Swaine also notes in the memo > the difference between a state’s sovereign immunity and an IGO’s immunity, > and the potential problems an IGO may have enforcing foreign marks even > under the current trademark-oriented UDRP. > > > > Staff will work with Petter and Phil on an agenda for the upcoming WG > meeting at ICANN56 in Helsinki, which we will circulate as soon as > practicable. As the Helsinki session is an open meeting, it is possible that > we will be joined by interested community members outside this WG. Please > note that the Helsinki session is currently scheduled for Tuesday 28 June, > from 13:30-15:00 local time. We will send out remote participation details > as soon as they are available so that members who will not be present in > Helsinki can nevertheless join the meeting. > > > > Thanks and cheers > > Mary > > > > > > Mary Wong > > Senior Policy Director > > Internet Corporation for Assigned Names and Numbers (ICANN) > > Email: mary.wong(a)icann.org > > Telephone: +1-603-5744889 > > > > > > > _______________________________________________ > 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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Swaine report update, future calls, Helskinki, etc.?
by George Kirikos June 16, 2016

June 16, 2016

Hi folks, It's been a while since our last call. 1. Do we have a timetable for the final report from Professor Swaine? 2. Will there be a call before the Helsinki ICANN meeting, and/or a call during that meeting? Or, are we aiming for after Helsinki at this point? 3. Did we receive any feedback from the IGOs or others on the draft Swaine report? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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

May 19, 2016

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

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