Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options

June 12, 2018

      Phil: I think you're partially right, but it's a bit confusing as to
the way it depends very critically on the placement of a comma.

Why don't we just rewrite it as:

Recommendation #1: For INGOs (including the Red Cross movement and the
International Olympic Committee), no changes to the UDRP and URS are
to be made.

Then, we don't need to add "substantive" (as staff just added).  Thoughts?

But, then we also wanted to clearly state that "No specific new
process should be created for IGOs." i.e. that was specifically
addressing whether a specific procedure should be created just for
IGOs. I'm going to have to go back to the report that we had sent out
last year for public comment, but wasn't that what we agreed? It seems
like the text is missing that (trying to do too much in one sentence)

Let's talk about that tomorrow.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Mon, Jun 11, 2018 at 10:31 PM, Corwin, Philip <pcorwin@verisign.com> wrote:
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I disagree.
Recommendation 1 reads: "1. No changes to the UDRP and URS are to be made,
and no specific new process created, for INGOs (including the Red Cross
movement and the International Olympic Committee)." (Emphasis added)
It refers only to private sector INGOs, and not multilateral IGOs, and is
not in conflict with any changes to the UDRP and URS proposed for IGOs.
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
-----Original Message-----
From: George Kirikos [mailto:icann@leap.com]
Sent: Monday, June 11, 2018 9:54 PM
To: Corwin, Philip <pcorwin@verisign.com>
Cc: gnso-igo-ingo-crp@icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's
Recommendations and Remaining Options
Phil: I was referencing the relationship between RECOMMENDATION 1 (should
have made that clearer in the prior email to you, where I wrote Option #1
accidentally in the first paragraph, but actually quoted RECOMMENDATION 1).
[as an aside, we might want to in the future label them Recommendation A,
Recommendation B, Recommendation C, Recommendation D, and Recommendation E,
and then keep the numeric options for Recommendation E; or, do it the other
way around] Sorry for the confusion.
Recommendation #1 says "No changes to the UDRP".
But, in recommendation #5, all the various options, except for Option #4,
would make changes to the UDRP. That was the point I was trying to make. As
you'll see in the coming spreadsheet/PDF of my own separate analysis of
initial consensus level designations (I'll be starting a brand new thread,
watch for it very shortly), this was picked by me and Zak and others in
relation to Recommendation #1.
With regards to your own statement re: Options #1 and Options #4 (all within
Recommendation 5), I disagree with your analysis. I won't waste time here
elaborating (want to send off my Consensus Designation Analysis to the
list), but am happy to elaborate later if you wish.
Let me know. [It'll be moot, in any event, as I don't expect both Option #1
and Option #4 to both achieve consensus in this PDP, at least from what I
can tell based on my analysis --- see my next email in a new thread]
Sincerely,
George Kirikos
416-588-0269
http://www.leap.com/
On Mon, Jun 11, 2018 at 9:22 PM, Corwin, Philip <pcorwin@verisign.com>
wrote:
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George:
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As you invoked my name in regard to the relationship of Options 1 and 4 on
Recommendation 5, let me make my position clear -- they are in
irreconcilable and irreparable opposition. One cannot, with any claim to
consistency,  favor the creation of an exception to the UDRP regarding the
effect of a court case dismissal that treats IGOs (and, by implication all
nation-states possessing valid claims to sovereign immunity) differently
than all other Complainants, and simultaneously declare the IGO immunity
should be evaluated in a broader context by another WG to consider all
possible implications before any significant amendment to the UDRP is made.
That circle cannot be squared.
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Philip
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Philip S. Corwin
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Policy Counsel
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VeriSign, Inc.
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12061 Bluemont Way
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Reston, VA 20190
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703-948-4648/Direct
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571-342-7489/Cell
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"Luck is the residue of design" -- Branch Rickey
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-----Original Message-----
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From: George Kirikos [mailto:icann@leap.com]
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Sent: Monday, June 11, 2018 3:31 PM
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To: Corwin, Philip <pcorwin@verisign.com>
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Cc: jbikoff@sgrlaw.com; ncohen@telepathy.com;
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gnso-igo-ingo-crp@icann.org
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Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's
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Recommendations and Remaining Options
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Phil: it's actually much worse than what you said (and reinforces my call
to give more time to clean up things in the next few weeks, to get a final
document for the July GNSO Council meeting). See the prior email I sent to
Jim where I put in my own "support" for Option #1 the proviso that:
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https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001219.html
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"1] Recommendation #1: I generally agree with the current draft text.
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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."
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Because, you're absolutely right. As currently drafted, read literally,
Recommendation #1 kills off not just Recommendation #5's Option #1, but also
Option #2, Option #3, Option #5 and Option #6! (it obviously has no impact
on Option #4). So, I agreed with the "intent of Recommendation #1, but not
really its actual current text.
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That's why we need enough time to closely re-read everything, to
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prevent glaring mistakes. Remember when we caught that bad mistake
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where we had recommended subsidies for INGOs, which was inconsistent
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with what he had decided was lack of future consideration of INGO
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issues?!?!?! (and that had been long after the report submitted for
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public comment! i.e. it was disovered last year),
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This has happened in other PDPs where there was a rush job, and mistakes
ended up being made (that had to be corrected). e.g see:
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https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/date.
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html
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where they had a "Final Report" on June 12:
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https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/00068
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8.html
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and were congratulating each other, etc., but then 8 days later there's a
long thread:
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"URGENT Correction to Recommendation 4 - REPLY NEEDED!"
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https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/00069
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4.html
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where changes needed to be made, etc. Embarrasingly:
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https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/00069
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9.html
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"I was there during the presentation to the GNSO Council when this was
discovered."
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I don't want this group to be in that situation. Let's agree to give
ourselves the time to get the job done right.
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Sincerely,
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George Kirikos
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416-588-0269
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http://www.leap.com/
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On Mon, Jun 11, 2018 at 2:29 PM, Corwin, Philip via Gnso-igo-ingo-crp
<gnso-igo-ingo-crp@icann.org> wrote:
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Jim, I’d have to look at the URS, but I know that the UDRP provides
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that if an appeal lawsuit is dismissed the prior UDRP decision will be
implemented.
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So how could recommendation #1 be given effect without an amendment
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to that part of the UDRP?
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Best, Philip
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Philip S. Corwin
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Policy Counsel
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VeriSign, Inc.
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12061 Bluemont Way
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Reston, VA 20190
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703-948-4648/Direct
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571-342-7489/Cell
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"Luck is the residue of design" -- Branch Rickey
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From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org]
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On Behalf Of Bikoff, James
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Sent: Monday, June 11, 2018 2:23 PM
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To: Nat Cohen <ncohen@telepathy.com>
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Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org>
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Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the
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WG's Recommendations and Remaining Options
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All, please understand my position in support of recommendation 1
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that no change to UDRP or URS or special procedure is warranted.
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No support for other recommendations.
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Jim
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Sent from my iPhone
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James L. Bikoff | Attorney at Law
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202-263-4341 phone
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202-263-4329 fax
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www.sgrlaw.com
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jbikoff@sgrlaw.com
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1055 Thomas Jefferson Street, N.W.
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Suite 400
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Washington, D.C. 20007
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Smith, Gambrell & Russell, LLP
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On Jun 11, 2018, at 9:05 PM, Nat Cohen <ncohen@telepathy.com> wrote:
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CAUTION: This email is from an external source. Do not click links or
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attachments unless it's from a verified sender.
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________________________________
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Dear WG members,
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While it will likely be sorted out eventually, I'd like to clarify
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that my comments regarding Option #3 were not intended to be viewed
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as supporting that option.
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I wrote in support of Zak's comments, who stated as to Option #3 that
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"I cannot support it in its present form".
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Similarly while I see a theoretical possibility that option 3 could
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be structured in a way that I could support, I cannot support it in
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the absence of a concrete proposal whose merits can be evaluated.  In
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my view the defects in the UDRP would first have to addressed, either
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through the RPM WG or through creating an IGO-specific UDRP that
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better safeguarded domain owners.  But as that has not yet been
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fleshed out, or even proposed as far as I'm aware, it would be premature
to express support for option #3.
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I write now in part because, due to a conflict, I will not be able to
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participate on tomorrow's call.
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Regards,
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Nat Cohen
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On Thu, Jun 7, 2018 at 3:33 PM, Nat Cohen <ncohen@telepathy.com> wrote:
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Dear WG Members,
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I write in support of Zak's positions, and add the following
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comments-
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Option #1  should work well for IGOs whether they realize it or not.
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It is quite rare for a UDRP decision to be challenged in court.  The
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practical effect of Option #1 is to enable IGOs to avail of the UDRP
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either directly, or through an agent, and if they win to obtain the
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transfer of the disputed domain in the likely 90%+ of the instances
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where the decision is not challenged.  Since in most jurisdictions it
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is quite expensive to file in a national court, a domain owner is
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only likely to file if he/she believes the domain name has
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substantial inherent value unrelated to an IGO's use - which is just
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the sort of domain that likely should not be ordered transferred through
a UDRP.
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IGOs are not being singled out for punitive treatment.  IGOs are
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requesting special treatment and for the ability to subject domain
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owners to a flawed and biased quick-and-dirty proceeding without the
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possibility of judicial recourse.  To assert a domain owner's right
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to judicial review is not punitive towards IGOs.
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Option #3 - if a procedure was created that genuinely resulted in
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transfers only in cases of blatant cybersquatting, and that
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adequately protected the rights of domain investors - which the UDRP
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does not - then I would be open to giving it strong consideration.
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Regards,
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Nat Cohen
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On Thu, Jun 7, 2018 at 2:23 PM, Zak Muscovitch <zak@muscovitch.com>
wrote:
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Dear WG members:
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Further to the below request for a response to the consensus call,
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please see my below response:
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I generally support Recommendation #1. I would clarify however, that
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no “substantive” changes are required (i.e. thereby leaving open the
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possibility of procedural changes).
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I generally support Recommendation #2, with the caveat that an IGO
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can demonstrate its rights by showing common law or unregistered
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rights in a name, for which 6ter compliance can be used.
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I generally support Recommendation #3, and would add that if any
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procedural adjustments are required to provide greater clarity, that
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would be consistent with my suggested revision to Recommendation #1.
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I generally support Recommendation #4, however I would note that any
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exploration of feasibility for providing subsidies to increase access
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to justice, should be means tested and should not necessarily be
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restricted to IGO’s, and I would convey this thought in the
Recommendation.
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I support Option 4 of Recommendation #5, which I had proposed
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compromise solution in the absence of universal agreement on which
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Recommendation this WG makes. I realize that it is not an ideal
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outcome, but it attempts to balance the perspectives of those who
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support Option 1, with those that think that a substantial revision
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to the Policy is required to accommodate IGO interests. In the latter
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case, such changes IMHO would necessarily have to be undertaken
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within the broader mandate of the RPM WG which will be looking at the
UDRP as a whole.
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I do however, support Option 1 in principle, though I suggest that
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the word, “vacated” be used instead of “vitiated”. The reason for my
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support of Option
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1 in principle, is that as Mr. Tattersfield has pointed out on
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numerous occasions, any IGO that commences civil legal proceedings
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against any stranger for any matter, would necessarily as a matter of
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course, implicitly waive the jurisdictional immunity that it
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otherwise has, and I see no reason that the UDRP should be any different.
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I would also support Option 2, as it would be an interesting and
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reasonable compromise that would drive potentially better policy making.
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I understand Option 3 and appreciate the objective and rationale
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behind it, although I cannot support it in its present form.
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Nevertheless, it is a creative solution and attempted compromise. My
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concerns with it are substantial and twofold;
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a) Any party that commences a civil legal proceeding of any kind
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against a stranger ipso facto voluntarily and implicitly waives
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immunity if they have it to begin with, and Option 3 attempts to
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allow IGO’s to at once avail themselves of the UDRP procedure without
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giving up their immunity – which as aforesaid – is unjustifiable IMHO
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since it allows ‘sucking and blowing’ at the same time. Furthermore,
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registrants have a well founded right to go to court, which they
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understandably do not want to give up, nor should they be compelled
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to give it up, particularly since being subjected to the UDRP in the
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first place involved a grand bargain wherein they would not lose the
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right to go to court; and
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b) Notwithstanding the foregoing objections, I can nevertheless see
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how this solution could in principle provide a remedy to this
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intractable situation which inevitably pits the rights of IGO’s
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against the rights of registrants (as Dr. Swaine pointed out), but to
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effect a solution such as this, there would have to be substantial
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safeguards for the rights of registrants in terms of the nature of
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the arbitration, such that it would be an attractive trade-off for
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losing (what many registrants consider to be) the inalienable right
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to go to court to protect one’s rights and assets, and as presently
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envisioned I am not satisfied that is the case. As such I am unable
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to support it. For example, a registrant having to go to court to
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fight of an immunity claim, or for that matter, an IGO having to go
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to court to make an immunity claim following a UDRP, seems like an
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unnecessarily burdensome step for both parties, albeit likely rare.
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Moreover, the nature of the proposed arbitration at this time is
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insufficiently clear and therefore provides me with an insufficient basis
for considering it to be an adequate substitute for court proceedings.
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If however, I did see a procedure and arbitration framework which
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provided sufficient comfort and attractiveness such that it was a
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reasonable and justifiable alternative for registrants in exchange
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for their right to go to court, that is something that I would further
consider.
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I would also support Option 5, which would provide a creative way of
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allowing a court action without necessarily naming an IGO, however I
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am uncertain as to whether in rem actions are universally available
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in all jurisdictions.
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I would also support Option 6 in principle, as mediation can
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potentially solve many disputes, not just for IGO’s but for UDRP
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Complainants and Respondents generally. I am uncertain however, where
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the funding would come from.
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Yours truly,
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Zak Muscovitch
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From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> On
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Behalf Of Steve Chan
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Sent: June-05-18 12:02 PM
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To: gnso-igo-ingo-crp@icann.org
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Subject: Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's
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Recommendations and Remaining Options
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Dear WG Members,
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This message is to remind you all that your response to the consensus
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call, initiated on 25 May, must be sent to the email list by Friday,
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8 June in order for it to be taken into proper account in the WG
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Chair’s assessment of consensus levels. Please see the original message
below for further details.
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Note, due to availability issues, we are expecting to move the WG’s
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next meeting, originally intended for Thursday, 14 June, to Tuesday,
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12 June. You can anticipate receiving a meeting invitation in the near
future.
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Best,
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Steve
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From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on
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behalf of Steve Chan <steve.chan@icann.org>
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Date: Friday, May 25, 2018 at 3:19 PM
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To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org>
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Subject: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's
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Recommendations and Remaining Options
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Dear WG Members,
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Attached, please find the compilation of the Working Group’s
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recommendations and six (6) options related to Recommendation 5. This
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message is intended to kick of the consensus call process for the
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WG’s recommendations and remaining options under Recommendation 5.
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For those WG members who wish to participate in the consensus call,
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we ask that you respond on the email list to note your support or
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non-support for all recommendations (i.e., recommendations 1-4) AND
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the six (6) remaining options under recommendation 5. Please provide your
response on or before Friday, 8 June.
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Subsequently, the WG Chair will consider response to the consensus
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call and seek to designate final consensus levels on the
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recommendations and options, which will be published to the WG’s
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email list for WG consideration. WG members will then have the
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opportunity to object to the designations and the WG may choose to
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conduct another call on Thursday, 14 June to discuss; WG members will
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also have the opportunity to file minority statements if applicable,
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which will be incorporated into a Final Report for the Council by 17
June.
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Note, based on the discussion on the WG’s call held on Friday, 25
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May, a handful of changes were made to the attached
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recommendations/options document, highlighted in yellow (e.g.,
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Recommendation 2, Recommendation 4, Option 4). In addition, footnotes
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were added, linking to the original rationale and suggestions made by
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Zak Muscovitch (Option 4), George Kirikos (Option 5) and Paul
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Tattersfield (Option 6). The same was not done for the first three
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options as those had been discussed extensively before the additional
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three options were added and are included unchanged from the text
presented in the October 2017 poll.
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If you have any questions, please let us know.
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Best,
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Steve & Mary
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Steven Chan
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Policy Director, GNSO Support
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ICANN
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