I agree with George on this. How many times do we have to say the same thing? My position has not changed since the last time I was asked, or the time before that. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Jun 6, 2018 at 7:43 AM, George Kirikos <icann@leap.com> wrote:
Hi folks,
It's unclear to me whether a response to this email is required, given many folks have already made their positions known on the various recommendations, and that already-provided feedback cannot simply be ignored. From my understanding of the working group guidelines, and looking at past PDPs, the consensus level designations were made at the *start* of the Consensus Call, accompanied by a draft final report. Then folks who disagreed (if any) would speak up, e.g. see
(1) IRTP-D: https://forum.icann.org/lists/gnso-irtpd/msg00516.html
"Based on the discussion during the last calls, the assumption is that there is consensus among the Group for all recommendations as they currently stand, meaning we anticipate only minor non-substaitve edits from here on out. If you do not agree with this statement and/or plan to submit a minority statement, please indicate this on the list or, at the latest, during our next meeting, Monday 15 September."
(2) Privacy & Proxy PDP: https://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/2015-November/002196.html
"As noted in the WG Work Plan, circulation of this updated document opens the period for the WG¹s consensus call. Following this, in accordance with the GNSO's WG Guidelines, the WG co-chairs will make a final evaluation of the consensus support levels and, if necessary, assign specific designations of such to each individual WG recommendation. Any minority statements must therefore also be submitted by that time. As noted in the WG Work Plan, the co-chairs plan to close the consensus call period by Monday 7 December 2015. Unless determined otherwise as a result of this consensus period, the recommendations are currently marked as Full Consensus of the WG."
https://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/2015-December/002243.html
"This is just a reminder that the consensus call for the Final Report of our work will close at 23:59 UTC on Monday 7 December 2015. As such, please email this list with your statement of support, or if there are objections to any of the final recommendations, your specific objection (and a minority statement if any), as soon as possible before that deadline.
FYI and as noted previously, the WG chairs are responsible for designating consensus levels for each final recommendation. Since many of the recommendations have not changed from the preliminary recommendations that were published for public comment back in May, and as those few that have seen changes were modified based on WG discussion and agreement on the nature of the changes, the current designation in both the original and updated Final Report is one of Full Consensus.
As such, if no objections are received before the deadline, the presumption will be that the WG consensus remains that of support for the final recommendations."
By contrast, we've not yet seen the Draft Final Report for this PDP. Nor have there been initial designations of consensus levels specified. So, as I pointed out during our last call, while this has been labelled a "Consensus Call", I disagree with that terminology. To me, it appears to be another "pre-consensus" call for feedback, and the actual "Consensus Call" begins when the Chair makes the initial designations accompanied with a Draft Final Report.
That being said, even if feedback is not required, it doesn't mean that continued feedback is not desirable to help refresh memories. My continuing feedback on the recommendations to date should be no surprise, but let me provide it again for the record.
1] Recommendation #1: I generally agree with the current draft text. However, let me be more precise. To the extent that recommendation #4 makes changes to how a UDRP/URS decision is treated by registrars due to the procedural "quirk of process" we've identified, then those "changes" are permitted. i.e. some folks might perceive Recommendations #1 and #4 to be in conflict, depending on the meaning of "no changes". The "changes" that are made aren't being made to the 3-prong test, etc., but instead to how any decision should be dealt with in the event that the scenario which leads to the quirk of process is realized.
2] Recommendation #2: The modified text doesn't reflect my prior suggestion on how this recommendation should have been made more precise. See: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/ 2018-May/001206.html
I would phrase the relevant sentence as follows:
"An IGO may consider this to be an option where it does not have registered trademark rights or service mark rights in its name or acronym (as applicable) but believes it has certain unregistered trademark or service marks rights for which it might adduce….."
The way it's currently drafted (as of 25 May 2018), it's suggesting that an IGO can have other rights (i.e. other than trademark or service mark rights) that can be recognized by the UDRP/URS procedures. I believe that differs from the feedback we received during the public comment period, namely that the UDRP/URS remain procedures solely for trademark/service mark violations, i.e. cybersquatting, and not open up to any claimed "rights". When our first draft report was created and opened for public comments, we had proposed that Article 6ter terms be automatically given standing (i.e. meeting the first prong of the 3-prong test), i.e. that they were not just "evidence" but "proof" of trademark/service mark rights, but got pushback on that. By changing it to the language I propose above, we weaken it to simply "evidence" of (but not proof of) those trademark/service mark rights. But, my proposed language still circumscribes it to be trademark or service mark rights (i.e. the distinction is only between "registered" vs. "unregistered").
In contrast, the May 25, 2018 draft opens it up to a vague definition of what rights can actually be enough to pass the first prong of the UDRP/URS. Indeed, as currently written, it even says (first part of the May 25 2018 draft language) that "An IGO may consider this to be an option where it ***does not have rights in a trademark or service mark***** ..... . In other words, it's proposing to expand the UDRP/URS for IGOs to non-trademark and non-service mark rights, which I believe is incorrect. We still want to keep it as trademark/service mark rights, but simply allow for registered vs unregistered scenarios.
3] Recommendation #3: I support. This PDP could have and should have ended years ago, when this workaround for IGOs was discovered/identified. See my email to the mailing list in December 2014 (that's not a typo; that's more than three and a half years ago):
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/000221.html https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/000220.html
4] Recommendation #4: As I noted in my public comments to the first draft report, I oppose subsidies to any group, on principle. Every group feels they are "special" in some way, and I've seen no objective test that says that IGOs should be treated differently than any other party to a UDRP/URS. Simply saying "in accordance with GAC advice" is not a reason, let alone a good reason, that justifies recommendation #4. If one simply obeys "GAC advice", that suggests PDPs aren't empowered to make their own decisions, which is not correct. In a multi-stakeholder model of internet governance, the GAC is simply one stakeholder whose self-serving (IGOs are observers to the GAC, and presumably had a hand in drafting this "GAC Advice") requests for financial subsidies without good justification should be rejected. IGOs don't receive subsidies when they use the courts. IGOs don't receive subsidies when they use ADR like mediation or arbitration. Why should the UDRP/URS be any different? IGOs are creatures created by governments. Even governments pay court costs and legal fees just like any other party to a dispute in offline courts (and face similar costs for staff and lawyers, photocopies and internet). I've not seen any good reason coming from the GAC other than "we want this" or the vague "it's in the public interest". Claiming it's "in the public interest" (without elaboration) can be used to justify many bad ideas, and this is yet another example of that.
Some of these IGOs have enormous budgets (they're funded by governments, and ultimately taxpayers), and are in much stronger financial positions than nearly all respondents. If one was going to be objective about who "needs" funding, it's those who are objectively poorer --- and that's certainly not IGOs. Generally, it's the respondents who are financially at a disadvantage, compared with the IGOs.
Thus, my position is that no one is entitled to these subsidies, simply because they want them. ICANN shouldn't be in the position of "Santa Claus", handing out subsidies to "favoured" groups, those who whine the loudest to ICANN. This is exactly why ICANN is facing a budget crisis (despite huge revenues compared to just a few years ago), because its expenses are out of control. Ultimately, directly or indirectly, all the revenue of ICANN comes from registrants. ICANN needs to start saying "No", and indeed should be severely cutting back on wasteful and unjustified spending, reversing some of its past mistakes (e.g. liberal travel subsidies, fellowship program, overpaid staff, etc.).
Given a few folks in this PDP have called for this to be discussed further between the ICANN Board and the GAC/IGOs, I would strongly suggest that they establish an objective standard for financial support, rather than simply leaving it wide open for backroom discussions. There should also be specific quantitative limits (e.g. number or dollar amount per year per IGO) to limit the scope of any discussions. If subsidies made UDRP/URS decisions entirely free and unlimited for complainants, one could see the potential for costs to spiral out of control, and for abusive complaints to be filed.
If we are to be engaging in evidence-based policymaking (and that should be the standard), then that is evidence we should not be ignoring (i.e. the inability to show that the costs are too high). Furthermore, we know from the Swaine report that IGOs have used the UDRP numerous times, so that too is evidence that the fees haven't been a barrier to the past usage of the UDRP (and the fees for the URS are much lower). See:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html
At a minimum (and this is reflected in the final sentence of the current draft), registrants who are defending a UDRP/URS should receive matching and identical subsidies, if any complainant received a subsidy.
But, my strong preference is that no one should be getting any subsidies. Indeed, when asked, the GAC didn't provide any feedback that the current fees for UDRP/URS complaints were too high or unreasonable.
5] Recommendation #5: I'm unchanged from my past position made public on the mailing list at:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001142.html https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001143.html
Briefly, I'm in favour of all of the options, except for Option #3. My strong preference is for Option #1, as that completely solves the "quirk of process" putting both sides in the exact same position as they would have been without the UDRP/URS, allowing for the court process to proceed naturally without interference by ICANN policy.
Option #2 (which I proposed) attempted to be a compromise between Option #1 and Option #3, but seems to have not resonated or caused backers of Option #3 to see it at as an attempt at compromise.
Option #4 (as originally proposed by Zak) is a sound option, because it recognizes that there's an important underlying issue (access to the courts for REGISTRANTS), one that's also in play for the Yoyo.email "cause of action" issue in the UK, that might be best solved holistically in the RPM PDP.
Both Option #5 and Option #6 attempted to reduce the number of cases that actually experience this "quirk of process".
I support Option #5 (which I proposed) which makes this reduction *after* the UDRP/URS is decided, by allowing for "in rem" cases (which were unwittingly disadvantaged by the poor phrasing of the UDRP language when it was drafted nearly 20 years) to be on an equal footing as "in personam" cases in the eyes of registrars, when it comes to locking the domain (that small technical fix can still be pursued in the RPM PDP, though).
I support Option #6, which makes the reduction in cases encountering the "quirk of process" differently, namely *before* the UDRP/URS decision is even made, by introducing a non-binding mediation step. Given the success at Nominet, this seemed like a no-brainer to me.
I oppose Option #3, as it doesn't actually solve the problem. It compounds one problem (the quirk of process) with an even worse solution (arbitration, which creates a whole host of new problems), rather than doing what Option #1 properly does (solving the problem entirely by setting aside the UDRP/URS decision and putting both parties in the exact same position they would have been had the UDRP/URS procedure not interfered with the underlying legal rights of the registrant to have access to the courts for the underlying dispute to be decided on the merits). I've written about this in depth before (see past posts on this mailing list). Without reiterating every point, I'd point out that it's a weak facsimile of the due process protections of real courts and can be far more expensive than real courts (since taxpayers pay the costs of judges in real courts, whereas in arbitration those costs are paid by the parties).
As for the current wording of the options, I don't think the revisions to Option #4 are "friendly". While adding the URS (which I suggested before) is good, Option #4 wasn't just asking for a "consultation", but an actual recommendation on how to move forward. The suggestion that a charter change to the RPM PDP is required doesn't make sense, given that the RPM PDP's scope is broad, and that the RPM Charter already contemplated coordination with other PDPs. As previously noted in April:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001112.html
in point #2, the RPM PDP charter already states:
""(b) Coordination with Other Parallel Efforts In the course of its work, the Working Group should monitor the progress of and, where appropriate, coordinate with, other ICANN groups that are working on topics that may overlap with or ***otherwise provide useful input to this PDP.*** .... In addition, the RPM PDP Working Group should also take into consideration the work/outcome of the TMCH Independent Review, the CCT Review, and ***any other relevant GNSO policy development***"
(emphasis added)
So, in other words, this PDP's "outcome" provides input for the RPM PDP's work, and the RPM PDP, via its current charter, should take that into consideration. Furthermore, the RPM PDP should have *already* been monitoring and coordinating things (of course, there's overlapping membership between the two PDPs).
Also, I think the language for Option #6 can be cleaned up a bit, as I suggested previously. Namely (a) it doesn't mention the URS at present, and (b) it could be made clearer that it's simply a combination of mediation + Option #1.
I continue to have some reservations, as previously expressed by Paul Tattersfield, in how the language of the final report will handle the Swaine report. Since a draft final report was not part of the documents that accompanied this pseudo-"consensus call" (or more properly a "pre-consensus call"), I'll reserve my feedback until later. For now, I'll just link to my past comments at:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001201.html
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Fri, May 25, 2018 at 6:15 PM, Steve Chan <steve.chan@icann.org> wrote:
Dear WG Members,
Attached, please find the compilation of the Working Group’s recommendations and six (6) options related to Recommendation 5. This message is intended to kick of the consensus call process for the WG’s recommendations and remaining options under Recommendation 5. For those WG members who wish to participate in the consensus call, we ask that you respond on the email list to note your support or non-support for all recommendations (i.e., recommendations 1-4) AND the six (6) remaining options under recommendation 5. Please provide your response on or before Friday, 8 June.
Subsequently, the WG Chair will consider response to the consensus call and seek to designate final consensus levels on the recommendations and options, which will be published to the WG’s email list for WG consideration. WG members will then have the opportunity to object to the designations and the WG may choose to conduct another call on Thursday, 14 June to discuss; WG members will also have the opportunity to file minority statements if applicable, which will be incorporated into a Final Report for the Council by 17 June.
Note, based on the discussion on the WG’s call held on Friday, 25 May, a handful of changes were made to the attached recommendations/options document, highlighted in yellow (e.g., Recommendation 2, Recommendation 4, Option 4). In addition, footnotes were added, linking to the original rationale and suggestions made by Zak Muscovitch (Option 4), George Kirikos (Option 5) and Paul Tattersfield (Option 6). The same was not done for the first three options as those had been discussed extensively before the additional three options were added and are included unchanged from the text presented in the October 2017 poll.
If you have any questions, please let us know.
Best,
Steve & Mary
Steven Chan
Policy Director, GNSO Support
ICANN
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