- Gnso-igo-ingo-crp - lists.icann.org

FW: ICANN Board Public Meetings on September 22 & 23
by Phil Corwin Sept. 19, 2017

Sept. 19, 2017

WG members-please note that on 9/22 ICANN's Board will be discussing the GAC's Johannesburg Communique, part of which discusses our issue. From: council-bounces(a)gnso.icann.org [mailto:council-bounces@gnso.icann.org] On Behalf Of Phil Corwin Sent: Monday, September 18, 2017 7:45 PM To: GNSO Council List (council(a)gnso.icann.org) Subject: [council] ICANN Board Public Meetings on September 22 & 23 I just became aware of this, and don't believe that Councilors were sent a note on it. Some may wish to monitor--- https://www.icann.org/news/announcement-2017-09-13-en ICANN Board to Hold Public Session and Board Meeting During Montevideo Workshop LOS ANGELES - 13 September 2017 - The ICANN Board will be holding one public session and a Board Meeting during its upcoming workshop in Montevideo, Uruguay, which will be taking place from 20-23 September, 2017. The agenda of the sessions is provided below. Date Time (UTC) Session 22 September 13:30 - 14:30 Discussion on how Board responds to the GAC Advice in its ICANN59 Johannesburg Communiqué 23 September 12:00 - 13:00 Public Board Meeting The sessions will be in English only. The format for each will be a listen-only session via Adobe Connect. Adobe Connect Link: https://participate.icann.org/opencommunity/ Participant Code: 5542211258 Additional access numbers: https://www.myrcplus.com/cnums.asp?bwebid=8369444&ppc=5542211258&num=1-605-… For more information about the Montevideo workshop and other upcoming ICANN Board meetings, please go to https://www.icann.org/resources/pages/2017-board-meetings. About ICANN ICANN's mission is to help ensure a stable, secure and unified global Internet. To reach another person on the Internet, you need to type an address - a name or a number - into your computer or other device. That address must be unique so computers know where to find each other. ICANN helps coordinate and support these unique identifiers across the world. ICANN was formed in 1998 as a not-for-profit public-benefit corporation with a community of participants from all over the world. Details Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey

1 0

MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 14 September 2017
by Julie Bisland Sept. 14, 2017

Sept. 14, 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, 14 September 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-14sep17-en.mp3 AC Recording: https://participate.icann.org/p8qeyo3hc75/<https://participate.icann.org/p8qeyo3hc75/?OWASP_CSRFTOKEN=00c812ada3468bdb…> 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 Mason Cole Paul Tattersfield Phil Corwin Jay Chapman David Maher Osvaldo Novoa Apologies: Petter Rindforth Paul Keating ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang 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/hSkhB Thank you. Kind regards, Julie ------------------------------- Adobe Connect chat transcript for Thursday, 14 September 2017 Julie Bisland:Welcome to the IGO INGO Curative Rights Protection PDP Working Group on Thursday, 14 September 2017 at 16:00 UTC Julie Bisland:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Julie Bisland:hello George! George Kirikos:Hi Julie. George Kirikos:If I'm the only PDP participant in attendance today, it'll be easier to form a final consensus. :-) George Kirikos:Hi Mason & Phil. Mason Cole:Greetings all Philip Corwin:Hello all. Petter has a conflict and won't be joining today. Paul Tattersfield:Hello everyone George Kirikos:Welcome Paul. Paul Tattersfield:its better Paul Tattersfield:it's Mary Wong:We have pasted feedback received from Paul Keating via email to this revised diagram in the Notes pod on the right. Julie Bisland:Welcome Osvaldo Novoa Osvaldo Novoa:Hello all, sorry I'm late George Kirikos:Welcome Osvaldo. George Kirikos:It would be permissible to appeal to higher courts. Paul Tattersfield:Do we also have to define the provider(s), the governing law and the rules or arbitration? Julie Bisland:Welcome Jay Chapman Jay Chapman:Forgive my being late George Kirikos:Welcome Jay. Jay Chapman:Thanks, George George Kirikos:2nd question is easier. George Kirikos:+1 Phil Steve Chan:There is a callout (highlighted in blue) on the chart, noting where this option is possibly envisioned. George Kirikos:Conceivably it can be for the box above that, right. George Kirikos:In addition to the current box, not to replace it. George Kirikos:Perhaps send it to the mailing list, for further thinking. Paul Tattersfield:George's solution seems more elegant George Kirikos:It would just be another option, though, Paul. i.e. some might find it better to wait until the UDRP panel has weighed in. Paul Tattersfield:Paul K wanted it to be for all UDRPs Paul Tattersfield:they would have to close the judical rigts if it went to arbitration George Kirikos:I personally wouldn't expect to make that choice for myself, but it might be an option for someone else, depending on the circumstances. George Kirikos:That might have been a typo. George Kirikos:(by Paul K) George Kirikos:We'd not be able to change the arbitration for all respondents (that's something the RPM PDP might be able to do, but beyond our scope). George Kirikos:IGO can't raise immunity defence in an "in rem" case, since they're not actually being sued. (i.e. that's why Option 6 is so interesting). Jay Chapman:Paul's concern there is my greater concern with creating any type of arbitration appeal - other groups may be encouraged to seek their own appeal process Mary Wong:Staff agrees that recommending arbitration is likely beyond the PDP scope. George Kirikos:Very true, Jay. Paul Tattersfield:If an arbitration and Judical options were both open to a registrant could try the arbitration if that was lost he could then try the judical route Mary Wong:Yes, sorry for not being clearer George Kirikos:@Paul: But the idea of going to arbitration is to give up the right to access the court. Mary Wong:@Paul T, the arbitration would be binding. Mary Wong:(taking off staff hat) I'm not a public international law expert but I would think that the IGO will, as a rule, still be able to assert jurisdictional immunity as it is still a party to the dispute - unless perhaps the policy requires that agrement to this limited scope amounts to a waiver of immunity. George Kirikos:Default judgement. Jay Chapman:agree Phil George Kirikos:Right, Phil. Jay Chapman:To be clear - not all of us have tentatively agreed to an arbitration option. Still listening though George Kirikos:+1 Jay :) Paul Tattersfield:Good poin Jay I think we're only exploring if alternatives are workable George Kirikos:https://www.icann.org/sites/default/files/tlds/accountants/accounta… (5.2) Mason Cole:Would love to share, George, but out of my remit. I'd have to defer to our legal team, and you're right, can't comment on .web. George Kirikos:Right, don't want to force any comment....just curious if the ICC rules seemed "fair". George Kirikos:(since those are what ICANN and registry operators have appeared to agree to, or were compelled to agree to) Paul Tattersfield:@Mary did you have chance to find the Ki-moon letter? Steve Chan:@Paul, Mary stepped away to another meeting, even if it looks like she's present. I'll follow up with her. George Kirikos:I think there was an arbitration via ICC, see: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource… George Kirikos:OpenTLD v. ICANN George Kirikos:Also Employ Media v. ICANN Paul Tattersfield:Thanks Steve appreciated Jay Chapman:Thanks, all. Osvaldo Novoa:Thank you, bye George Kirikos:Bye folks. Have a great day. Paul Tattersfield:Thanks all bye

1 0

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/

2 1

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.

1 0

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

1 0

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

1 0

PLEASE READ - IMPORTANT - Developing a final recommendation concerning IGO jurisdictional immunity
by Mary Wong Aug. 30, 2017

Aug. 30, 2017

Dear Working Group members, For your information, especially those members who have not been able to attend recent Working Group meetings, the co-chairs would like to invite more discussion and participation from everyone as our group works toward developing a final recommendation relating to the issue of IGO jurisdictional immunity. As such, if you have not been able to participate in the group’s recent deliberations on this topic, please be sure to review the most recent documents and call proceedings; in particular, the document summarizing all the options and the related Working Group calls on the topic, posted at https://community.icann.org/x/mwghB. FURTHER BACKGROUND: * In the Initial Report, the Working Group had recommended (as Recommendation #4) in part that no change be made to the Mutual Jurisdiction clause of the current UDRP and URS and that a jurisdictional immunity claim (made in response by an IGO to a court filing by a losing respondent) should be raised in and decided by the court. Consequently, the Working Group published two options for public comment – both relating to possible mechanisms to deal with the situation where the IGO succeeds in demonstrating its immunity to the court. * In reviewing the many public comments received on the two options, individual Working Group members proposed a number of additional options for consideration. With one exception*, all the existing options remain under discussion but the Working Group will need to come to a consensus on which of the remaining options will be its final recommendation on this topic. * (*The exception is what is known as Option 5 in the document posted on the wiki page) REQUEST FROM THE CO-CHAIRS: * As the plan is to have all our final recommendations completed, and their text approved by the Working Group before the next ICANN Public Meeting at the end of October, all Working Group members – especially those who have not been actively participating in the ongoing discussion - are encouraged to weigh in on this mailing list with your views before our next scheduled call on Thursday 7 September. Thank you. Cheers Mary

1 0

CALL CANCELLED FOR THIS WEEK (Re: Agenda/docs for August 31st call?)
by Mary Wong Aug. 30, 2017

Aug. 30, 2017

Dear all, Following consultation with the Working Group co-chairs, it has been decided that we will cancel the Working Group call this week (31 August), to allow for more time to review and discuss the various options currently under discussion as regards how to deal with the issue of IGO jurisdictional immunity. Please look out for a further message today on this topic. Thank you. Cheers Mary On 8/30/17, 08:34, "gnso-igo-ingo-crp-bounces(a)icann.org on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of icann(a)leap.com> wrote: Hi folks, Is there an agenda or any documents to read for tomorrow's call (assuming we have one tomorrow)? Normally those are sent out well in advance to give members of this PDP ample time to prepare, making the call more productive. Sincerely, George Kirikos 416-588-0269 https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&… _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

1 0

Agenda/docs for August 31st call?
by George Kirikos Aug. 30, 2017

Aug. 30, 2017

Hi folks, Is there an agenda or any documents to read for tomorrow's call (assuming we have one tomorrow)? Normally those are sent out well in advance to give members of this PDP ample time to prepare, making the call more productive. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

1 0

MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 24 August 2017
by Terri Agnew Aug. 24, 2017

Aug. 24, 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, 24 August 2017 at 16:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-access-24aug17-en.mp3 AC Recording: (unavailable for this meeting) 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 Poncelet Ileleji 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/mwghB> https://community.icann.org/x/mwghB Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for Thursday, 24 August 2017 Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 24 August 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_m wghB <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ mwghB&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCI gmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c &s=1dWgeTqCLgkHFz__1OE2V95T3xcGpGgtiWh-RtwFThg&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c&s=1d WgeTqCLgkHFz__1OE2V95T3xcGpGgtiWh-RtwFThg&e= George Kirikos:Hi folks. Steve Chan:Hi Terri. Still need to join the bridge :) Petter Rindforth:Not sure that you can hear me today, but I am online and can hear you, so at least I'll use the chat George Kirikos:No dial-in Petter? Petter Rindforth:Travelling Petter Rindforth:And spell you name online, instead of saying it 3-4 times before you will be connected George Kirikos:Exactly, Petter. George Kirikos:https://www.pcauthority.com.au/News/471400,microsofts-speech-recogni tion-engine-is-as-good-as-a-person.aspx George Kirikos:Perhaps blast out an email reminder, to get the stragglers? :-) Mary Wong:Apologies, I was on anotehr call that ran slightly over George Kirikos:First 2 pages are just historical, so it's actually shorter. George Kirikos:Also, pages 15 & 16 aren't controversial. Mary Wong:@George, and there are also page breaks between sections :) George Kirikos:Exactly, Mary. :-) Mary Wong:Note that much of the entries were retained from the earlier June version, with additions based on the WG's subsequent deliberations, especially on the newer Options. Please refer to the redline version to see the differences. Paul Tattersfield:There's one going to the Supreme Court at the momment 5 years after the initial UDRP Mary Wong:Disadvantage #2 should also be read in context of #3 George Kirikos:Forfeiting the UDRP outcome, right. Mary Wong:We meant it as an illustration, to elicit more specific notes on what the benefits are to both sides. George Kirikos:https://www.icann.org/resources/pages/policy-2012-02-25-en (see 4(k)) Petter Rindforth 2:I agree that it is important to try to make our recommendations without changing UDRP/URS, in order also to finalize without waiting for the WG dealing with UDRP, etc (starting that phase in the near future...) George Kirikos:@Petter: Each option would change the UDRP/URS, but only in a minor aspect (i.e. 4(k)), which only affects how the registrar enforces the decision, if the court case has that immunity issue. George Kirikos:So, from the point of view of NAF/WIPO/etc, the policies won't change at all under Options 1 or 2. Paul Tattersfield:I beleive if an IGO initiated an action in any other forum other than UDRP they would have to waive immunity George Kirikos:Yes, #7 didn't make sense to me either. Mary Wong:@Paul, to go to court, yes; and that is also why it is important to recall (as Phil has noted) that by submitting to Mutual Jurisdiction, an IGO is likely in some jurisdictions to be deemed to have waived its immunity as well. Paul Tattersfield:Wouldn't the mutual jurisdiction clause be less onerous as it is only a wavier of jurisdictional immunity? Berry Cobb:Yes Mary Wong:@Paul, that's true too. Again it comes down to a matter of strategic choice for any complainant, in this case, IGOs. Berry Cobb:And if it proves difficult to fill out, it can be removed before import into the final report. Mary Wong:@George, we did not attempt to capture all possible costs and impacts - we had thought the WG could complete the exercise. We certainly did not intend to present a complete, closed, one-sided case. As Berry mentioned, this is more of a qualitative exercise so staff did not feel it appropriate to do more than present a starter draft. Petter Rindforth 2:Although that is not likely to be used by IGO's, as we know from their comments (= using third party, etc) Paul Tattersfield:I think it's helpful even if it's not exhasutive George Kirikos:Calling "More consistent with the requests from the GAC and IGOs" a benefit.....is kind of weak. George Kirikos:This "disadvantage" is the same as option #1, so it's not a biggie. Mary Wong:@George, note that while the GAC supported arbitration, it was not for the scenario where an IGO would still have to prove immunity in a court. Paul Tattersfield:Was anyone around when WIPO went for ADR rather then Arbitration for UDRP? George Kirikos:https://www.icann.org/resources/pages/policy-2012-02-25-en Paragraph 9 already handles that, Phil. George Kirikos:9. Policy Modifications. We reserve the right to modify this Policy at any time with the permission of ICANN. We will post our revised Policy at <URL> at least thirty (30) calendar days before it becomes effective. Unless this Policy has already been invoked by the submission of a complaint to a Provider, in which event the version of the Policy in effect at the time it was invoked will apply to you until the dispute is over, all such changes will be binding upon you with respect to any domain name registration dispute, whether the dispute arose before, on or after the effective date of our change. In the event that you object to a change in this Policy, your sole remedy is to cancel your domain name registration with us, provided that you will not be entitled to a refund of any fees you paid to us. The revised Policy will apply to you until you cancel your domain name registration Petter Rindforth 2:I think it is the second - UDRP is mentioned as an example in the contracts George Kirikos:Sound is good. Mary Wong:@Phil, @George - because Option 1 would render a substantive decision void without there being judicial scrutiny. But as noted, staff supporting this group are not legal process experts. Paul Tattersfield:Can we make it so all aribitration documents are to be published? George Kirikos:But not better than Option #1 from registrants' point of view. Paul Tattersfield:Given this is a third party initiated action, would a clause in a contract between a registrar and a registrant binding the registrant to arbitration be even enforceable? Jay Chapman:I would like to speak, Phil, after the impact analysis Jay Chapman:I need to dial in Mary Wong:@Paul, that is the point I was trying to describe a few minutes ago. Petter Rindforth 2:I agree that Opt 2 is good for registrants, more legally sure as the case can be treated independent of immunity claim, but it is also better for IGOs than Opt 1 Petter Rindforth 2:Meaning "domain holder" Berry Cobb:@Phil - was only an example, not definitive. Mary Wong:@Paul - following up, meaning that it can be a question whether a "pass through" obligation for the Registrar to include agreement to the UDRP in all its registration agreements is enough to bind a registrant to arbitration thereby. Paul Tattersfield:I'm thinking it could possibly be even more problematic where the registrant is a consumer rather than a professional registrant especially in European jurisdictions? Jay Chapman:Can't find the dial in number, so here it is: Phil, If an additional arbitration existed, and before even assessing the merits of registrants rights vs. IGO immunity, I have little doubt that a court would be, at the very least, tempted, and perhaps on average, inclined to use the additional arbitration's existence as a basis to punt the case away. That's a reasonable , legitimate concern for registrants Jay Chapman:and a disadvantage for option 2 Mary Wong:@Jay, would you like us to dial out to you? George Kirikos:That's an important point. George Kirikos:i.e. adding Option 2 makes it more likely that a court would find "immunity". Paul Tattersfield:Emirates case in the UK George Kirikos:He's typing. Paul Tattersfield:It bars UK rcitizens from bringing cases George Kirikos:Hit "enter" to split your longer thoughts into multiple lines. :-) Paul Tattersfield:my machine is to slow carry on I'll tyoe it in the chat George Kirikos:So, Option #3 is advocating for "quasi in rem" jurisdiction of the courts, essentially, only in relation to the domain's outcome. Petter Rindforth 2:Can be combined with Opt 2 George Kirikos:Or Option #1. :-) Petter Rindforth 2:It is not sure that the court will accept it Paul Tattersfield:Here is a good summary of the Emirates case https://urldefense.proofpoint.com/v2/url?u=https-3A__www.brownejacobson.com_ about-2Dus_news-2Dand-2Dmedia_published-2Darticles_2012_04_toth-2Dv-2Demirat es <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.brownejacobson.com _about-2Dus_news-2Dand-2Dmedia_published-2Darticles_2012_04_toth-2Dv-2Demira tes&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgm kXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c&s =xaYV3QOQW6kUPWmKZulXorZHJdI5V3uwtjtgpB3ZLL8&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c&s=xa YV3QOQW6kUPWmKZulXorZHJdI5V3uwtjtgpB3ZLL8&e= Petter Rindforth 2:Adding it to option 2 is a better solution George Kirikos:Option #3 gives something to IGOs, and Option #1 gives something to registrants, so it balances things out. Petter Rindforth 2:If the parties involved are identified, I agree. And to add it to option 2 will likely also make the arbitration phase more rare Paul Tattersfield:I don't think 3 really adds anything that isn't already there George Kirikos:Page 11. Only 4 pages left. George Kirikos:It would also make vitiating more rare, too, in option #1. George Kirikos:Option #1 for existing domains, option 2 for newly created domains, yes. George Kirikos:Option #5 has a wrong premise, so not much discussion needed. Petter Rindforth 2:I think we can in fact delete this option by now George Kirikos:Canada/USA would. George Kirikos:So, that would cover .com, at the registry level. i.e. all important domains. Petter Rindforth 2:Mary's hand is up - probably because we asked for ICANN internal legaL OCMMENTS George Kirikos:UK, common law (since many countries descend from those common law principles). George Kirikos:I think even civil law countries would recognize it, e.g. from admiralty law. Petter Rindforth 2:"legal comments"- Mary, is there a possibility to get legal input on this issue withoiut extending our time? Paul Tattersfield:Perhaps we should change the mutual jurusdiction clause to registry,registrar,registrant jurisdictions George Kirikos:https://www.icann.org/resources/pages/policy-2012-02-25-en (4k) Mary Wong:@GEorge, the question is whether those courts outside US/Canada would recognize domain names as proper subjects for in rem actions. Petter Rindforth 2:I am not so sure that it can be generally used in Europe Mary Wong:@Petter, thanks - yes, that was one of the concerns I tried to note. Mary Wong:@Petter - are you asking about external legal advice on this option? Paul Tattersfield:Could we recommend the RPM WG to look at it? Petter Rindforth 2:No, I refer to a couple of questions discussed - it think - at last meeting, that perhaps could be investigated by your own internal legal "experts" Mary Wong:Not international law, but national laws in differet countries about recognizing domain names under in rem actions. Terri Agnew 2:@Phil, your apology is noted for next week Terri Agnew 2:IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call will take place on Thursday, 31 August 2017 at 16:00 UTC for 90 minutes George Kirikos:Perhaps next call we call on each person to see which options they support, maybe on a 5 point scale? George Kirikos:(strongly support, support, neutral, do not support, strongly oppose) George Kirikos:"do not support = oppose" George Kirikos:Bye folks. Paul Tattersfield:Bye all Petter Rindforth 2:It will be very productive!

1 0