Hi folks, First, I'd like to wholeheartedly support the recent thoughtful analysis and posts by Paul Keating and Paul Tattersfield. On to Phil's post: On Thu, Oct 19, 2017 at 8:50 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
The survey that WG members are being asked to respond to is neutral and descriptive and never once mentions the co-chairs or their views. I mistakenly referred to it as the Options document in my prior email when I was thinking of the actual survey that members were asked to respond to.
Again, the actual survey text directly links to that "Options" document, with all the one-sided commentary by the co-chairs in the "Preliminary Notes" section: https://www.surveymonkey.com/r/VCP8VKD "The current working text for each option has been included in the applicable question; however, note that the final text and certain details have not yet been fully agreed. See the full Options Proposal for details." And it's even linked to again at the bottom of that page, as well as in the "Background Materials" in Mary's email: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html Hardly a neutral presentation.
In light of that honest error, I have just again reviewed the " REMAINING OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the majority of its language is likewise neutral and descriptive, with the exception of the language reproduced below. This language states the informed view of the co-chairs. I believe we would have been remiss not to share our concerns with WG members.
The post leverages your positions as co-chairs, speaking as co-chairs, rather than speaking as individuals on a level playing field with other participants. When you filled out your Statement of Interest, you appeared to know the difference between speaking as a co-chair, and speaking as an individual member, see: https://community.icann.org/display/gnsosoi/Philip+S+Corwin+SOI "I understand fully that if I retain a leadership (Chair) role on the RPM Review WG I may express clearly identified personal views but cannot act as an advocate for a particular policy outcome." (link to your SOI in the list of IGO PDP is broken, but that's the general SOI that would apply, as per the RPM PDP too) Note the language "clearly identified personal views", and "cannot act as an advocate for a particular policy outcome." In the Options document, you don't identify those as personal views, but as "Co-Chairs" views. And even if they were identified as personal views, that wouldn't be the place for them -- they'd belong alongside all other personal views, on an equal footing.
Nonetheless, the co-chairs have permitted proponents of Option A and B and detractors of Option C – most especially you -- to vigorously and repeatedly state their own views, and have never attempted to suppress any such expression. We have included all remaining options in the survey for members to choose among. Any WG member who has been paying even a modicum of attention to the discussions of the past few weeks should be completely familiar with the pro and con arguments for all three options and capable of making an informed decision.
Actually, you unilaterally removed Option #6 from consideration, despite claiming (falsely) that "their essential elements have been adapted and incorporated into Options A, B, and/or C (below),". Where is Option #6 incorporated into Option C?? That's exactly why I had to oppose it, as noted previously. As for your last sentence, if that was the case, why was Imran seeking additional detail? I'm assuming that Imran is a diligent person who wants the presentation of the pros and cons laid out clearly, and it's insulting to imply or suggest that they must "not be paying even a modicum of attention". The same point was made by Paul Tattersfield and Paul Keating before Imran's email, see: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000867.html http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000868.html i.e. "articulate better the reasoning behind each option" Rather than listen to and respond to those concerns, they were ignored by the co-chairs.
Hence I reject any suggestion that we have operated this WG in a manner that has not accorded every member his or her full rights and allowed all points of view to be expressed. The co-chairs are responsible for administering this WG in an efficient and fair manner and I believe we have fulfilled that responsibility. But the co-chairs have not taken a vow of silence that precludes us from sharing our personal views with the members of the WG, especially when they concur that a particular outcome could jeopardize our entire work product.
Personal views were not expressed as "personal views", but instead leveraged the authority and position of "co-chairs", as noted above. Where does the name "Phil" or "Petter" appear in the "Preliminary" notes? Nowhere.
Finally, there is no secret survey. We will share the results of it with WG members as soon as it closes, just as we shall share them in Abu Dhabi.
We'll see exactly what gets shared, but it seems "summary" results only might be shared, not the individual responses with names attached, etc., which are the more meaningful ones.
Now here is the language in the Options document expressing the joint views of the co-chairs. Again, if a majority of the members of this WG believe that its inclusion, in the context of all the other statements that have been made regarding the three options in the course of WG discussions and email traffic, violated our duties as co-chairs then I for one will be happy to step aside and let others complete this task.
Stop being so defensive. Most of us are here to do the hard work, and yet you propose instead to distract things by creating "drama" over who hold an administrative post. What I and others are asking for is for people to do the hard work, and not rush to a bad decision due to political pressures.
However, the co-chairs wish to reiterate that in their view Option A is an inappropriate departure from our prior decision that ICANN should avoid taking any position that seeks to limit the legal rights or prejudge the outcome of any judicial proceeding, and is subject to strong criticism as it would vitiate a prior UDRP finding of cybersquatting by a domain registrant upon an IGO’s successful assertion of an immunity defense
This is an absurd argument. First, I 100% agree that ICANN should avoid taking any position that seeks to limit legal rights. It's not a place to "create new law". I think most (if not all) of the members of the PDP support that principle. However, Option A is the solution *most* consistent with preserving the legal rights of all parties. All three options are addressing the same "problem" with the UDRP, i.e. the uncontemplated scenario whereby successful invocation of the immunity argument thwarts the "de novo" review in the courts. Option A tells all parties "the UDRP decision is meaningless and won't be enforced" (as it should, to be consistent with the principle that ICANN (including its UDRP policy) should be inferior to the courts. Option A tells all parties "handle this dispute through the appropriate legal remedies", rather than having the UDRP actively interfere with those legal remedies and rights.
The Co-Chairs recognize that although there may be examples where UDRP panels have reached incorrect decisions, that the best means to address such error is through judicial appeal, or appeal via arbitration as proposed in Option C). The Co-chairs further observe that Option A would leave IGOs in a worse position than they would be under the status quo (successful assertion of judicial immunity would
This is misleading and false, as Option C *also* leaves IGOs in a worse position than they would be under the status quo, because now they would have to go to arbitration, instead of "winning on a technicality" via the courts immunity decision and having the domain transferred to them.
remove the stay on enforcement of the prior UDRP decision), and as this would leave the IGO with no further available remedy, under these mechanisms, against the alleged cybersquatting, it is highly unlikely to be approved by the GNSO Council or the ICANN Board, especially as this PDP was chartered to evaluate whether and how access to the UDRP and URS could be improved for IGOs and INGOs.
Again, there is no *legal* or requirement to provide a mechanism for the IGOs beyond those in the national courts, or to provide them with better access to the UDRP/URS than they already get (at the expense of registrants' rights). We've already established that they have sufficient access, and have identified workarounds that they can employ if they wish to minimize exposure to the immunity issue. There isn't even an important "public interest" (a dubious term) in providing such a mechanism. If there's any "pubic interest" of importance, it's that ICANN not be interfering with rights under national laws, and not be making up its own "laws" which conflict. Expectations about rights and laws are important public interest concerns, particularly for registrants. To put things in "Hollywood terms" (since Options A and B are being described as "Thelma and Louise"), Option A is better termed "Do The Right Thing", as it is a principled and nuanced approach that solves the problem with surgical precision. Option C is best described as the "Titanic" approach, ignoring the engineering flaws inherent in its design, which leads to a sinking ship. Option C seeks to abandon logical analysis and instead cave to **political** pressures, rather than fix issues correctly. Last, let me point out just 2 examples of problems with Option C that have not been identified in the self-serving documents provided by the co-chairs: (a) Panelists -- one of which must be a "retired judge". That sounds dandy, until even minimal research shows that NAF's infamous Carolyn Marks Johnson is a retired judge. See: http://www.adrforum.com/SearchPanelists and do a search, or note the description at: http://www.legacy.com/obituaries/houstonchronicle/obituary.aspx?pid=17288987... "Hon. Carolyn Marks Johnson, former judge in the 189th District Court in Harris County" I'm sure her reputation speaks for itself, but for those not keeping track, here's a link to some articles: https://domainnamewire.com/2010/03/22/study-shows-million-dollar-domain-arbi... https://domainnamewire.com/2009/07/22/national-arbitration-forum-panelist-su... https://domainnamewire.com/2016/07/21/mike-mann-overturns-udrp-decision-cour... https://www.thedomains.com/2015/03/17/worst-udrp-decision-of-the-year-panel-... She's not alone as a "retired judge", see Nelson Diaz (also at NAF), who I wrote about on CircleID for the sloppy copy and pasting of nonsense: http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udr... http://www.adrforum.com/domaindecisions/1312536.htm Are these the kinds of retired judges who could be handling Option C disputes, who are supposed to protect the integrity of that system? (b) Costs -- it's naive to believe that costs would be lower in arbitration than in a judicial case, while trying to emulate the due process protections of a court. One need only look at a recent IRP that ICANN lost: http://domainincite.com/21481-icann-loses-another-irp-sport-gtld-fight-reope... where the costs of the IRP itself (*not* counting lawyers fees of each party) amounted to $152,673. In real courts, the actual disbursement costs and filing fees are relatively low (hundreds of dollars, maybe thousands in a complex case), because the most substantial cost, namely the labour cost for the judge (their salary) is paid for by TAXPAYERS! Not so in an arbitration, where the parties themselves have to pay for the costs of the panelists (3 panelists, multiplied by hundreds of dollars per hour, multiplied by many hours adds up quickly). I'll leave it at that, for now. I do have other points, which, as the two Pauls have suggested, should be in a substantial, neutral and thorough "pros and cons" document prepared for the group (and for the community) *before* making decisions or taking surveys. I endorse their call for such a system, which the co-chairs have ignored. By my count, that would make at least 3 people calling for that (maybe 4, if counting Imran), which exceeds the "2" votes by the co-chairs, acting in their sole individual capacities. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/