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- Minority Statements
by Steve Chan July 14, 2018

July 14, 2018

Dear WG Members, Two minority statements were received prior to the deadline, sent directly to staff as well as Petter in one instance. Attached, please find the minority statements from Petter Rindforth and Paul Tattersfield. Both of these minority statements, plus the minority statement sent to the list by Phil Corwin, will be integrated into Annex B of the Final Report for Council consideration. If you have any questions or concerns, please let us know. Have a great weekend. Best regards, Steve & Mary 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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Minority Statement of Philip S. Corwin
by Corwin, Philip July 13, 2018

July 13, 2018

Attached 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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Reminder: Deadline for Minority Statement IGO-INGO
by Petter Rindforth July 11, 2018

July 11, 2018

Dear All WG Members, This is a reminder that the deadline for sending anyminority statements that you may wish to have included (and that may include other comments that you may wish to make on the topic of this PDP) is by23.59 UTC on this Friday, July 13. As informed bystaff, they will incorporate all minority statements received by that time into Annex B of the Final Report, where a placeholder for these statements has been added. Mr. Kirikos and other WG members areof course free to choose not to file your minority statements by this Friday's deadline, but in that case it will not form part of the official Final Report. You are free to send statements as an individual to the GNSO Council at any time, but the 10 day deadline for GNSO Council documents pertains only to motions and other reports on which the Council is expected to vote or act formally. As to the 3.7: Please note, again,that the calls with Mr Kirikos, me and Mr Philip Corwin, as well as the call with Mr Kirikos and Ms. Heather Forrest, were recorded as they constituted specific steps in the Section 3.7 process. In contrast, the informal calls between WG leadership and Council leadership were not, as these typically are not (whether in this PDP or other GNSO Working Groups). Finally, I want to take this opportunity to thank all of you active WG members that have positively participated since our first call at August 11, 2014 (not to forget my Co-Chair for the majority of the time, Philip Corwin), as well as to the fantastic and supporting work done by the staff, especially Mary Wong, Steve Chan andNathalie Peregrine. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth(a)fenixlegal.eu www.fenixlegal.eu NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you

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Members of this PDP have been duped (was Re: FW: [council] Motion and Final Report on Curative Rights PDP)
by George Kirikos July 11, 2018

July 11, 2018

Hi folks, Did anyone else actually read yesterday's Motion that is going to GNSO Council? Rather than voting on the recommendations at the July 19th council meeting (that was the purported reason we were supposed to attempt to finish the report by yesterday), the actual resolution says: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001384.html (in the DOCX attachment) "2. In view of the need to consider the topic of curative rights protections for IGOs in the broader context of appropriate overall scope of protection for all IGO identifiers (including IGO acronyms), the GNSO Council intends to review this Final Report from the IGO-INGO Access to Curative Rights Mechanisms PDP Working Group between now and its August 2018 meeting, with a view toward developing a possible path forward that will also facilitate the resolution of the outstanding inconsistencies between GAC advice and prior GNSO policy recommendations on the overall scope of IGO protections. The GNSO Council confirms its intention to act on the recommendations that have been developed by the Working Group at the earliest opportunity following its review and deliberations on these topics. 3. To this end, ICANN staff is directed to inform the ICANN Board and the GAC that the IGO-INGO Access to Curative Rights Mechanisms PDP Working Group has completed its work and forward a copy of the Final Report to them." So, who has the incentive to produce a half-complete report? Obviously it's someone who wants to justify deviating from its recommendations, if the report's supporting rationale isn't up to snuff (as I repeatedly pointed out, the draft reports from staff had major shortcomings). And now we see that exactly, as per the motion itself, what's going on --- GNSO Council intends to develop a "path forward" (i.e in other words,. deviate from the Final Report), and not actually vote on the Consensus Recommendations in July! In other words, they didn't like the consensus recommendations, and detractors have rigged the process to: a) create an incomplete report, so that they can then justify rejecting recommendations, and then b) allow themselves to put in their own recommendations in August or beyond Contrast this with the preceding IGO PDP, where the final report was submitted November 10, 2013: https://forum.icann.org/lists/gnso-igo-ingo/msg01091.html (mangled HTML) https://forum.icann.org/lists/gnso-igo-ingo/msg01092.html (easier to read at the bottom of this email instead) and then they voted to accept it 10 days later at the November 20, 2013 meeting: https://archive.icann.org/meetings/buenosaires2013/en/schedule/wed-gnso-cou… https://archive.icann.org/meetings/buenosaires2013/en/schedule/wed-gnso-cou… https://gnso.icann.org/sites/default/files/filefield_42701/voting-igo-ingo-… "Item 5: MOTION – To approve the Recommendations for IGO-INGO Protections ... The motion carried unanimously." We've been duped, and the process continues to be manipulated. The process is rigged. How does GNSO Council (i.e. Susan, Heather, etc.) reconcile yesterday's "deadline", with the now obvious fact that they aren't going to be voting on it in July? Also, when is my Section 3.7 call with Heather or her designated rep going to take place? (given we had one already with Petter) Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Jul 9, 2018 at 8:01 PM, Mary Wong <mary.wong(a)icann.org> wrote: > Dear all, > > > > Please be informed that Susan has now submitted a motion and a copy of the > Final Report to the GNSO Council (see below and attached). As confirmed by > Susan and Petter to this mailing list, please make sure that you send any > minority statements that you may wish to have included (and that may include > other comments that you may wish to make on the topic of this PDP) by 23.59 > UTC on Friday 13 July. Staff will incorporate all minority statements > received by that time into Annex B of the Final Report, where a placeholder > for these statements has been added. > > > > Thank you. > > > > Best regards, > > Mary & Steve > > > > From: council <council-bounces(a)gnso.icann.org> on behalf of Susan Kawaguchi > <susankpolicy(a)gmail.com> > Date: Monday, July 9, 2018 at 19:44 > To: GNSO Council List <council(a)gnso.icann.org> > Cc: Petter Rindforth <petter.rindforth(a)fenixlegal.eu> > Subject: [council] Motion and Final Report on Curative Rights PDP > > > > Councilors, > > > > As the Liaison for the Curative Rights PDP I am pleased to submit to Council > the final PDP working group report and the Motion for Council. > > > > Respectfully submitted, > > > > Susan Kawaguchi > > > > GNSO Councilor for the Business Constituency > > > _______________________________________________ > 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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FOR REVIEW: Updated Draft Final Report
by Mary Wong July 9, 2018

July 9, 2018

Dear Working Group members, Staff has updated the 2 July draft Final Report that was discussed on our call yesterday – the redline against that 2 July version (in both Word and PDF formats) as well as clean versions of the latest (6 July) draft (in both Word and PDF formats) have now been posted on the Working Group wiki space for your review: https://community.icann.org/x/UoVHBQ. We have also included a redline of this latest 6 July draft against the original draft Final Report that was circulated on 11 May. For your convenience, I also attach the redlined 6 July version (against the 2 July version we used on yesterday’s call), in both Word and PDF formats. Please note: * If you have substantive corrections or concerns, please post them to this mailing list as soon as possible, so that we may try to resolve the issue speedily via email and before the 23.59 UTC deadline on Monday 9 July for submitting the report to the GNSO Council; * Staff will do our best to do another proof-reading pass-through before the deadline, though we note that our focus will most likely be on correcting any substantive errors you may spot in the current draft. We note also that it will likely be possible to submit a reformatted version to the Council with typos and grammatical mistakes corrected after the deadline (but not substantive changes). * For Monday submission to the Council, we will insert the following placeholder in Annex B (Minority Statements): “As of 9 July, the following Working Group members had indicated that they plan to submit minority statements: Mr. Philip Corwin, Mr. George Kirikos, Mr. Petter Rindforth”. Please let the list know as soon as possible if your name is not listed and you plan to also file a minority statement. * Minority statements should be limited to documenting your disagreement with any of the final recommendations, along with your reasons for such disagreement (including, if appropriate, your reasons for preferring a different proposal/option). * Susan will revert with a proposed deadline for the submission of minority statements – for the present, and subject to Susan’s views and report, staff will suggest COB in your time zone on Thursday 12 July (to allow for the updated annex to be sent to the Council before the end of the week). Thank you. Best regards, Mary

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George Kirikos comments on July 6, 2018 draft, Part 1 (was Re: FOR REVIEW: Updated Draft Final Report)
by George Kirikos July 7, 2018

July 7, 2018

Before I list some comments, I want to repeat for the record that this has been an abysmal process, trying to complete a final report on a truncated timeline that only a handful of members (at best) have ever read, let alone had sufficient time to consider what needs to be *added*, beyond what needs to be *changed*. See my earlier email of this evening with regards to how wide a latitude is required for the scope of Minority Reports, in light of this. Can't spend infinite amount of time "negotiating" text changes with those holding the pen, and/or those who've never read the document, when it's more appropriate to simply write what needs to be said directly, via a Minority Report. I just did a quick pass only of "changed" text, and while I still have more comments on the document (including text that might have changed), especially with regards to whether we should put substantial additions into this document, or into Minority Reports, here are some initial comments: (page numbers are relative to the *Redline* version of the July 6, 2018 PDF draft, not the clean version) 1. page 7: first line, "his/her registrar"; change to "the registrar" (registrant might be a corporation or other entity, so using words meant for people like "his/her" don't capture that) 2. page 13: recommendation #2. I made this point before (point #9 of earlier email -- https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001345.html ), and it's *still* not word for word exact! Instead of trying to change it word-by-word, leaving the opportunity for errors to exist, it should have been DELETED in it's entirety, and then copied/pasted from the first part of the document (where it was correct). In my prior point #10 notes, I gave examples of errors, but not all of them! What's still wrong? a) correct recommendation says "name and/or acronym" (vs "name or acronym" in line 6 of that part) b) correct recommendation says "service mark rights" (vs "service rights" in line 7) and maybe more! (I shouldn't have to be wasting time re-reading it, when it should be identical already). Just copy/paste from the prior *correct* version in the earlier part of the document! These are pretty basic errors that shouldn't be in a document at this stage, especially when it's already been pointed out! Not only have we needed to double-check staff's work output, but then we need to double-check or triple-check their attempts to fix things. Ridiculous. 3. all of point #18 made previously (now at page 22, though); if not all of it, at least point out that there have never been any appeals of the UDRP decisions involving IGOs. When we talk about "rare", we really do mean "rare", since it hasn't happened since the inception of the UDRP. Folks need to know that. 4. page 12, item #3: "to bring a case to a court of competent jurisdiction" -- "to have a de novo determination on the merits in a court of competent jurisdiction" [simply bringing a case, that could then be killed on a technicality like immunity, isn't the same] 5. page 28, footnote 20: make it easier on the reader to find it in the Swaine memo. Unless the numbering has changed, it's footnote 5. [that's what it was when formatted for our January 2017 report, page 79] While the page number will change in this report, the footnote number shouldn't change (since it restarts from 1 in the Swaine section). 6. page 44, middle column "and no change to the URS" (Rec 5 Option #1 does of course change the URS; change to "no change in substantive grounds to the URS" or whatever we've used before); 7. page 52, 2nd paragraph: all of prior point #30: this is still "fake news", since the so-called "consensus call" wasn't "in accordance with the GNSO's customary practice and pursuant to the GNSO's Working Group Guidelines." Take a close look at what I put forth before as proposed text (see below) which was quite *diplomatic* in describing accurately what happened, and what portions were omitted in the current staff version. This is exactly what I'm referring to when I talk about who is "holding the pen", and why there needs to be very liberal allowances for Minority Reports, to set the record straight. Here again is the proposed text for that paragraph: "Concerns were raised regarding the accuracy, transparency and inclusiveness of the Summary Report. After discussions on the mailing list, it became evident that more members of the PDP were willing to engage further on the remaining issues than originally was recorded, and that it might be feasible to reach consensus on all 5 recommendations. The Working Group held meetings on 10 & 25 May 2018 to further revise the language of the proposed recommendations. After the 25 May 2018 meeting, a two week process was started whereby PDP members were encouraged to share their views on the public mailing list with regards to all 5 recommendations (including the 6 options for Recommendation 5). On June 9, 2018, after reviewing the emails of the prior 2 weeks, the remaining Working Group chair (can keep the footnote referencing Phil's resignation), set the initial designations of consensus levels, consistent with the requirements of Section 3.6 of Working Group Guidelines for a Consensus Call. The Working Group held further meetings on 12 & 21 June 2018, and discussions on the mailing list, engaging in the iterative process of further revising the text of the recommendations and revising the designation levels to their final state (which was achieved on June 21, 2018), while also agreeing on the appropriate designations levels for the proposals that did not attain consensus." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Jul 6, 2018 at 5:13 PM, Mary Wong <mary.wong(a)icann.org> wrote: > Dear Working Group members, > > > > Staff has updated the 2 July draft Final Report that was discussed on our > call yesterday – the redline against that 2 July version (in both Word and > PDF formats) as well as clean versions of the latest (6 July) draft (in both > Word and PDF formats) have now been posted on the Working Group wiki space > for your review: https://community.icann.org/x/UoVHBQ. > > > > We have also included a redline of this latest 6 July draft against the > original draft Final Report that was circulated on 11 May. > > > > For your convenience, I also attach the redlined 6 July version (against the > 2 July version we used on yesterday’s call), in both Word and PDF formats. > > > > Please note: > > If you have substantive corrections or concerns, please post them to this > mailing list as soon as possible, so that we may try to resolve the issue > speedily via email and before the 23.59 UTC deadline on Monday 9 July for > submitting the report to the GNSO Council; > Staff will do our best to do another proof-reading pass-through before the > deadline, though we note that our focus will most likely be on correcting > any substantive errors you may spot in the current draft. We note also that > it will likely be possible to submit a reformatted version to the Council > with typos and grammatical mistakes corrected after the deadline (but not > substantive changes). > For Monday submission to the Council, we will insert the following > placeholder in Annex B (Minority Statements): “As of 9 July, the following > Working Group members had indicated that they plan to submit minority > statements: Mr. Philip Corwin, Mr. George Kirikos, Mr. Petter Rindforth”. > Please let the list know as soon as possible if your name is not listed and > you plan to also file a minority statement. > Minority statements should be limited to documenting your disagreement with > any of the final recommendations, along with your reasons for such > disagreement (including, if appropriate, your reasons for preferring a > different proposal/option). > Susan will revert with a proposed deadline for the submission of minority > statements – for the present, and subject to Susan’s views and report, staff > will suggest COB in your time zone on Thursday 12 July (to allow for the > updated annex to be sent to the Council before the end of the week). > > > > Thank you. > > > > Best regards, > > Mary > > > _______________________________________________ > 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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FOR REVIEW: Updated Draft Final Report
by Mary Wong July 5, 2018

July 5, 2018

Dear Working Group members, Staff has posted copies, in both Word and PDF formats, and in both redlined and clean versions, of the updated Draft Final Report for your review on the Working Group wiki space: https://community.icann.org/x/UoVHBQ. You will also find links to the most recent GAC Communique (from ICAN62 in Panama last week), that includes advice to the ICANN Board concerning our PDP, as well as the GNSO Council’s resolution also from Panama, requesting that we complete our Final Report by 9 July 2018 (the document deadline for the Council’s July meeting). We have done our best to capture what we believe to be the most current and agreed text, especially of the specific recommendations and consensus levels, but remain ready to make further updates and corrections as may be needed. Please note the following: * Please limit your suggestions for edits and corrections to substantive matters (e.g. errors of substance) rather than formatting, typos, preferred word usages/phrasing, or grammar (unless there are egregious errors). This will allow us to complete our work as expeditiously as possible, as seems to be expected by the GNSO Council. * Please do not send back redlines of the document, as it can be difficult to track and capture multiple versions. Instead, please send your comments via email to this mailing list so that staff can make sure all substantive comments are noted and addressed. * The redline was done against the last version of the draft that was circulated (i.e. the 11 May document). The redlined changes that you see are therefore either new additions, corrections or modifications of the text from 11 May, for which members had been asked to submit comments by 22 May. Please therefore do not suggest further edits to the non-redlined text unless you see egregious errors that were not previously spotted (especially as much of the 11 May 2018 text was retained from the January 2017 Initial Report). * We have added a few comment boxes to indicate where and why certain insertions/changes were made (especially as regards rationale and specific suggestions made either to the 11 May document or on the recent Working Group calls). * We have also updated the GAC advice to include the GAC’s most recent Communique, issued last week in Panama City. * We have not included references to the recent and ongoing appeal filed by George under Section 3.7 of the GNSO Working Group Guidelines, as that process has so far proceeded separately from the Working Group’s final deliberations – but please let us know if this should be added. Process for filing Minority Statements: * As minority statements are not reviewed or edited by the Working Group or staff, they can be sent in any time. For purposes of meeting the Council’s requested deadline, however, it will be helpful if you can send to staff any minority statement that you may wish to file in Word format by 1200 UTC on Monday 9 July. Our understanding is that Petter would like to discuss, and hopefully attain agreement on, any substantive errors or omissions in the report at our meeting this Thursday, 5 July. As such, please be sure to review the redlined changes before the call if you can. We apologize for the short notice, as the ICANN62 meeting last week made it impossible for us to complete the draft before today. (NOTE: If you wish to focus on the major substantive issues, you may wish to begin your review with Section 1.2 (pages 3-7 of the redlined Word version) and a portion of Section 2.1.1 (pages 10- 22 of the redlined Word version).) Thank you. Best regards, Mary & Steve

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Recordings, attendance & AC chat from IGO-INGO Access to Curative Rights Protection Mechanisms call on Thursday, 05 July 2018
by Michelle DeSmyter July 5, 2018

July 5, 2018

Dear All, Please find the attendance and AC chat attached and the MP3 and AC recording below for the IGO-INGO Access to Curative Rights Protection Mechanisms held on Thursday, 05 July 2018 at 16:00 UTC. MP3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-05jul18-en.mp3 AC Recording: https://participate.icann.org/p9kjnm51giv/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…> ** 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/UoVHBQ Kind Regards, Michelle DeSmyter

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George Kirikos comments on July 2, 2018 draft final report, Part 3 (was Re: FOR REVIEW: Updated Draft Final Report)
by George Kirikos July 5, 2018

July 5, 2018

Hi folks, This is the part 3 of my comments on the July 2, 2018 draft final report. The earlier parts are at: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001345.html (part 1) https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001349.html (part 2) This was all based on a single pass through the entire document. I don't plan to do any further passes through it before tomorrow's call. Tomorrow's call was scheduled for only 1 hour. I think we should expand it to at least 90 minutes (our normal call length), or even 2 hours, to try to get as much agreement as possible on all points (including concerns from others about the current draft). i.e. we can work faster over the phone in real-time than we can via email (which is asynchronous). (all page references relative to "Clean" PDF version of July 2, 2018 draft, unless otherwise stated) 25. page 33, first paragraph: for INGOs, it would be Recommendation #1(a) (note just #1), since we added a 1(b) for IGOs since the earlier draft of this report). 26. page 34: Cost: I don't think it's correct to say that it's "outside the remit of the Working Group Charter." Also, it's not correct to call it a "preliminary" conclusion, as this is a final consensus recommendation, and no longer "preliminary.". 27. (no page in particular) I don't this had been pointed out before by anyone in this PDP, but the probability of a court action by a registrant after an adverse URS decision is actually lower than that for an adverse UDRP, because the URS has a built-in review/appeal mechanism that can be utilized, before a registrant need escalate to the courts. Might be worth putting into a footnote somewhere (where we talk about probabilities being 'rare', etc.). 28. page 44: middle column (at bottom) says .."and no change to the URS". Of course Recommendation 5 will have a slight change (set aside the URS decision if immunity asserted), so that language should change slightly. 29. page 48-49: the new text at the bottom of page 48 ("more fully described in Section 2.1 above") should be deleted, as those options at the time were *different* (e.g. Option #4 from Zak came in December 2017). The third paragraph even notes this. If we want to retain those words, they can be moved to the first line of the last paragraph of page 49, i.e. immediately after "During the Working Group's discussion of these six options". 30. page 51: 2nd paragraph: (a) first, "to confirm that there was consensus on the other recommendations listed above" is entirely false, given that the text of those recommendations has evolved, and was never "confirmed" either. I would rewrite as: "…, and to ATTEMPT TO confirm that there was consensus on the other first four recommendations." (removing the words "listed above"). (b) continuing, the May 25, 2018 meeting description is complete fiction, because at that point no designations had been made! THe very first time designations were made was on June 9, 2018: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001238.html Essentially, that entire paragraph is not accurate. What really happened, is that the Summary Report (referenced on page 50) was not well received. Remember, I wrote a long rant about "Everything Wrong with the IGO PDP Summary Report" https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001139.html Then, there was essentially a "Public Display of Possible Consensus", where PDP members who were concerned about the accuracy and inclusiveness (whether their input had even been captured) of the Summary Report openly and transparently shared their views on the mailing list, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/date.html Then, realizing that we were actually capable of reaching consensus (unlike the Summary Report, which saw things more divided), the May 10th and May 25th meetings were focused on revising the text of the recommendations. Then, on May 25, 2018, a two week process was started whereby members were once again encouraged to share their views on the public mailing list with regards to all 5 recommendations (including the 6 options for the Recommendation #5). Then, on June 9, 2018 set his initial designation levels after reviewing all the emails, after which we engaged in an iterative process of revising the text of the recommendations and revising the designation levels to their final state (which was achieved on June 21, 2018). You'll note I was careful to not call the May 25, 2018 a "Consensus Call", since it never really was! (happy to refer to it as a "two week process", as a compromise; if you want to call it a "Consensus Call", be sure to add a footnote that that was one of the issues in dispute in the 2nd Section 3.7 appeal made on June 10, 2018). The third paragraph on page 51 is fine, but the 2nd needs to be completely rewritten, to reflect the truth, and not the current fiction. Here's my attempt to write it, as diplomatically as possible: ---- start of new paragraph 2 on page 51 -------- Concerns were raised regarding the accuracy, transparency and inclusiveness of the Summary Report. After discussions on the mailing list, it became evident that more members of the PDP were willing to engage further on the remaining issues than originally was recorded, and that it might be feasible to reach consensus on all 5 recommendations. The Working Group held meetings on 10 & 25 May 2018 to further revise the language of the proposed recommendations. After the 25 May 2018 meeting, a two week process was started whereby PDP members were encouraged to share their views on the public mailing list with regards to all 5 recommendations (including the 6 options for Recommendation 5). On June 9, 2018, after reviewing the emails of the prior 2 weeks, the remaining Working Group chair (can keep the footnote referencing's Phil's resignation), set the initial designations of consensus levels, consistent with the requirements of Section 3.6 of Working Group Guidelines for a Consensus Call. The Working Group held further meetings on 12 & 21 June 2018, and discussions on the mailing list, engaging in the iterative process of further revising the text of the recommendations and revising the designation levels to their final state (which was achieved on June 21, 2018), while also agreeing on the appropriate designations levels for the proposals that did not attain consensus. ---- end of new paragraph 2 on page 51 -------- That's about as diplomatic as I can make it, without bringing in the 2nd Section 3.7 appeal, arguing over what a "Consensus Call" is, etc. 31. page 56, 3rd paragraph "The Working Group scheduled community sessions at each ICANN Public Meeting that took place after its formation" --- not correct, as there were no calls during the Panama meeting (and I don't think was a session at the prior meeting either). Easiest fix is to remove the word "each" and make "Meeting" be plural "Meetings", leaving it more correct than it is as present. Alternatively, change "each" to "most" (and still make "Meetings" plural) 32. page 58: Phil Corwin's affiliation is listed as "BC", whereas it should be "RySG" since he's moved to Verisign. The Wiki page should also be updated (his SOI has been updated, but the table listing the members/affiliations hadn't been). 33. page 58: in the table listing all the constituencies, "CBUC" should be changed to "BC" (to reflect the acronyms being used on pages 57-58). Or, alternatively, change "BC" to "CBUC" for all the relevant members on pages 57-58. 34. page 62: might want to add a footnote/asterisk next to Phil's name, given he resigned as co-chair, as was done earlier in the document. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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George Kirikos comments on July 2, 2018 draft final report, Part 2 (was Re: FOR REVIEW: Updated Draft Final Report)
by George Kirikos July 4, 2018

July 4, 2018

Hi folks, I hope our US members are enjoying the 4th of July holiday. Continuing from yesterday's email which had "Part 1": https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001345.html here are some additional comments on the draft, up to page 27. I would highlight point #17 as a discussion point, i.e. potentially leaving expanded text to minority reports, as an alternative to beefing up that section. (all page references relative to "Clean" PDF version of July 2, 2018 draft, unless otherwise stated) 15. page 18 - middle paragraph says '1CANN6' (should be ICANN60). 16. page 21 -- "jurosdiction" is a typo 17. pages 17-21 -- recommendation 5 -- each of the sections is very "light" in terms of description. We could consider either beefing up each option equally, OR, leave it as is (since each option is "equally" light), and then permit folks to make their more detailed descriptions of the costs/benefits of each option in the minority reports. I think the latter option, given the timeline, might make most sense. Perhaps the main document can then suggest (in the beginning of Recommendation 5) that the various proponents/critics of various options have provided more detailed analysis in the minority reports, e.g. a footnote right after: "The final six policy options, with the associated outcome following the end of the Working Group’s formal consensus call process, were:" with the footnote referencing the minority reports. I think the minority reports should be allowed in PDF format, and placed at the very end of the document (much more easier to merge multiple PDFs easily that way, and not ruin anyone's formatting, etc.). 18. page 21 -- "This possibility is not new" - footnote 11. We should refer to the Tribunal Immunity case in the USA as a related "test" of how courts would answer that question (that it was seen in that case as a limited waiver of immunity). That's the Windcreek.com dispute referenced in the email at: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/000960.html (and with attachments from the court case). Earlier in that paragraph it talks about how the circumstances will be "rare". We should point out that IGOs have already filed a number of UDRP cases since 1999 when the UDRP was created, see https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html for details (from Footnote in Swaine report), and they've *never* been appealed to a court. 19. Page 22, first sentence (continuing from page 21): "One concern that has been expressed in this regard is the need to ensure that no additional legal rights are created as a result of any consensus policies developed through the ICANN process." I would suggest expanding on that by saying (directly after the above): "It was agreed that ICANN is not the place to create new legal rights, but instead should reflect underlying legal rights reflected in national laws. The UDRP and URS were designed to complement, but not replace or interfere with, existing legal rights of all stakeholders. To the extent that the current UDRP and URS inadvertently interferes with or prejudices the rights of parties to have a case decided on the merits in the national courts, it was felt that putting both parties back in the same position they would be absent the UDRP/URS was an appropriate solution." 20. page 26: " the need to recognize and preserve a registrant’s longstanding right to appeal to a court of competent jurisdiction" It's not just the "right to appeal". More properly and precisely, it's a right to have a de novo determination **on the merits** in a court of competent jurisdiction. i.e. an "appeal" that is dismissed on a technicality, without considering the merits of the dispute (e.g. IGO asserting immunity, or no cause of action in the UK yoyo.email case) isn't sufficient. 21. page 23 (? or thereabouts): A new paragraph should be added to *emphasize* that immunity is a defense to an action, and that there's no immunity when an IGO initiates a dispute (i.e. is the complainant). There should be no expectation of an IGO to have immunity for the overall dispute , since it's the one initiating it. Had the UDRP/URS been properly designed, then the IGO should have gained no legal advantage by filing the UDRP/URS first, compared to the situation where they simply filed a court action. Had the UDRP/URS not existed or not been used, the IGO would be the complainant in a court action, and thus would have no ability to assert immunity (since it is not the defendant, and only defendants can assert immunity). However, a court action seeking de novo review brought by a losing domain name registrant after a UDRP/URS causes the IGO to be the defendant (rather than the complainant). This role reversal between complainants and defendants causes a quirk of process to exist, whereby the IGO (now the defendant) might attempt to assert immunity as a defense (despite the existence of the mutual jurisdiction clause), an argument that could not have been made had the role reversal not taken place. In other words, the Swaine report wasn't looking at the overall context of the IGO being the initiator of the dispute. He's taking the things as they are i.e. accepting the role reversal as it exists, without questioning these unintended side effects in terms of allowing immunity to be asserted. The working group members, however, looked at the overall picture holistically, though, the UDRP/URS was never intended to advantage any party, create new legal rights, or interfere with existing legal rights. So, to the extent that these unintended side effects are "cured" by our recommendations, we've made the appropriate policy choice, by putting back the two parties in the same position they'd be absent the UDRP/URS. 22. page 26: "advisable approach would be not to recommend any changes to the URDP or URS at this time" --- incorrect, as Option #1 is a change. Can modify to rewrite as: Ultimately, the Working Group decided, for the following reasons: [insert 1, 2, 3] that the most prudent and advisable approach was to recommend Option #1 for Recommendation #5. However, the list of reasons here is slightly different than the reasons on page 12 (where there are 5 reasons, not 3). They should be made identical. 23. page 12, item 3: see point #20 above; it's not just the right to "bring a case to a court of competent jurisdiction", but a right to have the case determined de novo on the merits. 24. page 27, footnote 16: can link to the cases in the Swaine report itself, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html which had the cases from the relevant Swaine footnote. More to come later (today and/or tomorrow), but I thought this would be a good place to break for lunch. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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