Thanks, Phil and Petter, and thanks for the comments, George.
Just to add a few clarifying notes about the Public Comment Review Tool:
·
As mentioned previously, this is a staff summary document intended to facilitate Working Group review of the comments. As such, it supplements rather than supersedes the need
for Working Group members to read the comments (as recommended by the GNSO Working Group Guidelines).
·
In preparing the table, staff tries to be careful not to substitute our judgment for the considered review of the group. We therefore focus on excerpting the substantive feedback,
which means that we try not to interpret general comments as support or non-support. Therefore, in determining the level of support from the comments for certain recommendations, it’s important not to do a simple tallying of numbers – since there is a wide
variety of comment styles.
That said, if the Working Group believes staff should have inserted certain comments in relation to certain sections or columns of the table, we are very happy to do so on your direction.
Thanks and cheers
Mary
From:
<gnso-igo-ingo-crp-bounces@icann.org> on behalf of Phil Corwin <psc@vlaw-dc.com>
Date: Wednesday, April 19, 2017 at 09:58
To: "petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu>, George Kirikos <icann@leap.com>
Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org>
Subject: Re: [Gnso-igo-ingo-crp] - Proposed Agenda for WG call on Thursday 20 April 2017 at 1600 UTC
Chiming in, and agreeing with Petter – we are making very good progress in our initial review of comments to discern new facts and arguments, and will thoroughly survey all
comments to assure that the task is done properly.
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org]
On Behalf Of Petter Rindforth
Sent: Wednesday, April 19, 2017 3:25 AM
To: George Kirikos
Cc: gnso-igo-ingo-crp@icann.org
Subject: Re: [Gnso-igo-ingo-crp] - Proposed Agenda for WG call on Thursday 20 April 2017 at 1600 UTC
Hi George,
I can confirm that we ofcourse also will review comments from individuals, members or non-members of our WG. If not this week, by next week.
All the best,
Petter
--
Petter Rindforth, LL M
Fenix Legal KB
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Thank you
19 april 2017 01:30:06 +02:00, skrev George Kirikos <icann@leap.com>:
Hi folks,
Are we planning to review all the comments? There are comments by
individuals opposed to the elimination of their access to the courts,
whose comments do not appear to be reflected in the spreadsheet tool
(i.e they should be counted for Option 1 in question 4).
Even my own comments didn't seem to be captured well. I wrote "As a
participant in the PDP working group, I generally agree with the
findings in the report,...." but then that didn't count as a "Support"
for each of the recommendations, except for #5 where I explicitly
wrote:
"I had another brief comment to make on a separate topic, namely reimbursement
or subsidies by ICANN of IGO costs for the UDRP/URS. I believe this would be
the wrong approach, given that nations do not subsidize IGO costs for their
legal actions, etc."
(although then I went on to suggest equal subsidies for both sides, in
the event that any subsidies were to be granted)
It seems that unless one followed a strict "Agree/Disagree" format for
each specific recommendation, then a commenter's support or
disagreement could get lost.
e.g. Russ Smith:
"Given the failure to properly manage the UDRP the court challenge
should remain in place. As it is currently it could be argued that an
IGO-INGO waives their right to immunity when they agree to the
arbitration agreement. That should be changed so any entity who files
a UDRP explicitly waves their right to any immunity. The respondent
should have the matter reviewed in a legitimate legal forum rather
than some kangaroo court run by NAF and INTA members."
I'm not sure how that could be read as indifference to the two options
in recommendation #4.
The same for:
"If you remove the court option you are removing freedom and justice from the
hands of the people you are supposed to serve. You might as well let China
make the rules for all mankind, it's about the same thing. Shame on you for
even considering this draconian measure."
Doesn't look like a supporter for binding arbitration to me!
The same for:
which doesn't seem to support binding arbitration, but prefers the courts.
Or the ICA:
"ICA believes that Option 1 of Recommendation 4 – vitiating a DRP
Decision adverse to the registrant when the registrant subsequently
appeals to a court of mutual jurisdiction and the complainant IGO then
successfully asserts immunity – is the only option consistent with
ICANN’s limited authority and remit."
which was supported entirely by Jay Chapman:
In conclusion, before we tackle agenda items #3 and #4, we should make
sure we've reviewed every comment, to ensure that we've properly
captured their sentiments.
Sincerely,
George
On Tue, Apr 18, 2017 at 6:17 PM, Steve Chan <steve.chan@icann.org> wrote:
Dear WG Members,
The proposed agenda, and associated links and documents, for the upcoming WG
call this Thursday 20 April 2017 at 1600 UTC is as follows; please also note
that this call has been scheduled for 90 minutes:
1. Roll call/updates to SOI
2. Discuss specific additional comments from GNSO members and
from other community participants with substantive suggestions
3. WG to note level of support for various recommendations
4. Agree on list of topics identified as requiring additional WG
discussion or review (see below)
5. Next steps/next meeting
For agenda Item 2, the co-chairs recommend that the following comments be
discussed:
· United Nations -
· Internet Commerce Association -
· International Atomic Energy Agency -
· World Bank -
· UNESCO -
· Universal Postal Union -
· International Finance Corporation -
In addition, we will review the public comment review tool (updated and
attached), to make sure that we have discussed all substantive comments. We
may want to review some of the comments from individuals during this
exercise.
For agenda Item 3, staff has attempted to tally the level of support for
each of the recommendations, as well as the options for recommendation 4.
Note that in the tally, we did not separately include organizations that
were supportive of other comments (e.g., from WIPO, OECD, etc.). This
information is captured in the attached Excel sheet.
For agenda Item 4, and for purposes of moving forward after next Thursday,
here is a list of the new or additional facts, legal arguments and points
for consideration that staff has identified from the WG’s last two calls:
1. Lack of suitability of Article 6ter as a legal basis for standing
(various comments submitted)
· What are the alternatives (GAC list, trademark law, unregistered
(i.e. what our American members call “common law”) rights, consumer
protection statutes, others)?
· Alternatively, is there a way to scale back our recommendation on
6ter, or to have a recommendation that says you first need 6ter to establish
procedural standing and it must be coupled with a substantive legal right of
some sort?
2. Opposition to Recommendation #4
· Three reasons provided by OECD
· World Bank commented on reconsidering feasibility of the assignee
option
· Did WG ignore or misinterpret part of the Swaine opinion (OECD,
World Bank)?
3. Some support emerging for Option #2
4. Further review of arbitration as an option
· See the New York Convention (OECD)
· Is there a difference between recommending arbitration as the sole
option for appealing a UDRP decision vs filing a separate, new proceeding in
a national court (which is not an appeal from a UDRP panel)?
5. Further discussion of a separate DRP (GAC, WIPO, IPC)
· See specific recommendations from IPC comment
· Note that WG had tabled discussion of 2007 draft procedure from
ICANN staff until after completion of initial review of all comments
6. Function and scope of a Policy Guidance document
· Cannot be used for cases where a recommendation amounts to a
substantive change of the UDRP (e.g. if Recommendation 4 Option #1 is
adopted)
· Note question on Recommendation 3 by World Bank
If you have any questions or comments, please let us know.
Best,
Steve
Steven Chan
Sr. Policy Manager
ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
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.
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