Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
That post makes absolutely no sense, and is inconsistent with the idea that we've even identified an issue at all that needs remediation. If, as Phil claims, we need to take 4(k) as is, then that argues for *not* implementing Option C (or Option 2 by the old numbering), because that would be singling out the IGO for a further round of arbitration, to their detriment. (as is, the dispute would be over, and the IGO would get the domain name; why subject them to a further procedure which they may lose? and even if the IGO won, they'd be spending more time and money to do it) I made a post on the RPM PDP mailing list yesterday that raises the very closely related issue of having the "de novo review" struck for lack of cause of action in some jurisdictions, see: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html which identified the root cause of the problem, namely that: "If there was no URS (or UDRP) policy in place what would be the "law" and the procedural path to justice? Clearly, a trademark holder would have a "cause of action" under trademark law against a domain name registrant. The TM holder would file a lawsuit (as plaintiff) against the domain name registrant (as defendant). With the URS (or UDRP), the procedural path to justice is altered in the event a TM holder uses it and is successful under the ADR. To challenge the outcome of the ADR, the domain name registrant now has the role of the plaintiff in court, and the TM holder is the defendant. The parties have switched their prior positions as plaintiffs and defendants, and it turns out that might cause a significant problem in some jurisdictions. i.e. it might make a difference which party to the dispute files in court as plaintiff in some jurisdictions." Where Phil is coming from, he's saying "Take the UDRP as given, and AFTER that procedure is applied, leave the determination of legal rights and defenses to national law and courts of mutual jurisdiction." Whereas those of us who are convinced Option A (or Option 1 under the old numbering) is correct, we're saying "We do not take the UDRP as given! ICANN can't create a policy that interferes with the legal rights and defenses to national law in the first place. And the UDRP as written has already done that, caused that interference." If you actually believe what Phil is saying, then this PDP should be arguing for maintaining the status quo, i.e. don't change anything at all. That would be the only position that isn't hypocritical. But, this workgroup does not actually believe that --- because it's already said there is a scenario that had not been contemplated by the UDRP. It has identified a flaw that needs to be fixed, because of that "procedural path to justice" being changed as I noted above. We're not singling out IGOs --- the same issue needs to be fixed in the RPM PDP, where "de novo review" on the merits is blocked by the courts if the court action is brought by a domain name registrant in certain jurisdictions, due to false assumptions when the UDRP/URS were created that a cause of action even existed if the domain name registrant was the plaintiff (as opposed to being a defendant who did have a valid defense to a TM infringement action). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Nov 20, 2017 at 10:29 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
These are personal comments and not directives or rulings from the Co-Chair.
The PDP Working Group is part of a policy process. After a WG delivers its Final Report and Recommendations the process continues, with the output requiring further approval of the GNSO Council and then the ICANN Board to be effectuated (and with the Board possibly having to consider contrary, consensus GAC advice when making its own determination). If those subsequent approvals are not obtained the entire effort of the WG is for naught. It is not "playing politics" for a WG to consider whether its final recommendations will pass muster at the next stages of process review, and policymaking is always the art of the possible and often requires pragmatic compromise.
My own evolution in thinking on Option 1/A (and I don't believe I ever expressed a preference for that over Option 2/C at the time our Initial report was released) was in part based upon a further understanding that 4k of the UDRP https://www.icann.org/resources/pages/policy-2012-02-25-en states:
k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name. (Emphasis added)
That language made clear to me that Option 1/A would single IGOs out for disparate treatment in the UDRP in that, were any other Complainant successful in having a registrant's lawsuit dismissed for any valid reason, the stay on the implementation of the Administrative Panel's decision to extinguish or transfer the domain would be lifted and the decision would be effectuated; whereas that Option would state that for IGOs, and IGOs alone, the decision would be vitiated.
My view is that for that disparate treatment alone the Council and Board would be highly likely to reject a report and recommendations containing such a policy recommendation. Additional reasons why I cannot support it are:
Such a recommendation is at odds with the WG Charter's charge that we ensure that IGOs have effective access to CRP The effect of the recommendation would be to penalize IGOs for effectively asserting an immunity defense in judicial proceedings, as the result would be to set aside a prior determination that the domain was being used to facilitate cybersquatting (and yes, I know that in some instances UDRP decisions are in error and are set aside on judicial appeal; but in the great majority of cases the original panel decision is correct) and that this result would likewise be unacceptable to Council and the Board. It would also be inconsistent with the WG's prior determination that ICANN should not interfere with the legal rights of either party to a UDRP, and should leave judicial determinations to the courts. The recommendation might well incentivize losing domain registrants to file judicial appeal in a belief that an IGO - faced with the choice between acquiescing to the court's jurisdiction, or asserting an immunity defense the successful invocation of which would be penalized by panel determination vitiation -- would choose to not participate in the adjudication and thereby provide the registrant with a default judgment in its favor.
Please note that all these reasons (which I have articulated previously in both oral and written form) are based on law, policy, and pragmatic policymaking considerations and that none constitute "fear mongering".
The positive reasons why I personally support Option 2/C are that:
It is consistent with the WG's determination to leave the determination of legal rights and defenses to national law and courts of mutual jurisdiction. It does nothing to improve or detract from an IGO's ability to successfully assert and immunity defense. It improves the position of domain registrants by assuring that in those rare instances in which a court grants an IGO's immunity claim and dismisses the judicial action they still will have an ability to secure a de novo determination from an expert and impartial panel based upon the same national law that was the basis for the judicial action. Under current UDRP policy, the judicial dismissal would leave the registrant with no further recourse for "appeal".
Finally, let me be clear that my views on this matter have never been motivated by a desire to acquiesce to the GAC's. I believe that if Option 2/C is included in our final report and if GAC members actually give a fair reading to it they will conclude that this recommendation is based upon reasoned principles that deserve GAC support. However, I have never favored the consistent GAC position on this matter -- that we should create separate CRP processes for IGOs in which domain registrants are deprived of an opportunity to secure judicial review - as we have found no basis for IGOs to secure standing for such actions other than trademark law, and because it would be an abuse of ICANN's limited remit for it to attempt to deprive registrants of existing legal rights based upon the type of Complainant initiating a CRP action.
Best to all,
Philip
Philip S. Corwin
Founding Principal
Virtualaw LLC
1155 F Street, NW
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 <gnso-igo-ingo-crp-bounces@icann.org> on behalf of George Kirikos <icann@leap.com> Sent: Thursday, November 16, 2017 1:27 PM To: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Hi folks,
On Thu, Nov 16, 2017 at 12:24 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
I completely agree with Paul on this. These IGO names issues have been a political football for nearly five years now. The GAC is never going to get the GNSO to say what the GAC wants it to say -- we are not going to agree. The GAC has never proved any legitimate public interest concern to back their position. Accordingly, the IGO names policy was passed by a supermajority of the GNSO (as likely will be this latest policy recommendation) and that has implications in the Bylaws for the Board. The Board needs to make a decision. The GNSO need not be interested in politics, that is the Board and GAC's concern; we are interested in facts and real world policy.
Yet, the backers of Option C within this PDP have *also* been playing politics. It was pretty much established that Option 1 (now Option A) had the backing of this PDP when the preliminary report went out earlier this year, as I pointed out in today's call, based on all the analysis of law and facts. What "new information" or "new facts" or "new analysis" have been presented to get some members of this PDP to shift to the old Option 2 (now Option C)? Absolutely none -- just scaremongering about how the GNSO Council or others might react ---- *that's* politics. There's nothing "principles based" about Option C that has anything to do with facts or law.
Politics were being played even *before* we got to this PDP. The prior PDP should have just said "No more", but then they kicked the can down the road (leading to this 3 years of work), which the IGOs themselves have not participated in.
I hope that folks regain their bearings before this PDP is over, and really think hard about the fundamental principles that lead to policy decisions (I've been reading Ray Dalio's new book "Principles" lately).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
Leap of Faith Financial Services Inc. www.leap.com Leap of Faith Financial Services Inc. is a privately held company based in Toronto, Canada.
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
P.S. FYI, the post I'm responding to was sent by Phil using his old email address (that is no longer subscribed to this mailing list, apparently), not his new @verisign.com email account which is subscribed to the list. Thus, his original email didn't actually get broadcast to the rest of the mailing list (I only received it because my email address was listed in addition to the mailing list address in the "To" field). However, his email was included in its entirety below my response. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Nov 20, 2017 at 11:01 AM, George Kirikos <icann@leap.com> wrote:
That post makes absolutely no sense, and is inconsistent with the idea that we've even identified an issue at all that needs remediation.
If, as Phil claims, we need to take 4(k) as is, then that argues for *not* implementing Option C (or Option 2 by the old numbering), because that would be singling out the IGO for a further round of arbitration, to their detriment. (as is, the dispute would be over, and the IGO would get the domain name; why subject them to a further procedure which they may lose? and even if the IGO won, they'd be spending more time and money to do it)
I made a post on the RPM PDP mailing list yesterday that raises the very closely related issue of having the "de novo review" struck for lack of cause of action in some jurisdictions, see:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html
which identified the root cause of the problem, namely that:
"If there was no URS (or UDRP) policy in place what would be the "law" and the procedural path to justice? Clearly, a trademark holder would have a "cause of action" under trademark law against a domain name registrant. The TM holder would file a lawsuit (as plaintiff) against the domain name registrant (as defendant).
With the URS (or UDRP), the procedural path to justice is altered in the event a TM holder uses it and is successful under the ADR. To challenge the outcome of the ADR, the domain name registrant now has the role of the plaintiff in court, and the TM holder is the defendant. The parties have switched their prior positions as plaintiffs and defendants, and it turns out that might cause a significant problem in some jurisdictions. i.e. it might make a difference which party to the dispute files in court as plaintiff in some jurisdictions."
Where Phil is coming from, he's saying "Take the UDRP as given, and AFTER that procedure is applied, leave the determination of legal rights and defenses to national law and courts of mutual jurisdiction."
Whereas those of us who are convinced Option A (or Option 1 under the old numbering) is correct, we're saying "We do not take the UDRP as given! ICANN can't create a policy that interferes with the legal rights and defenses to national law in the first place. And the UDRP as written has already done that, caused that interference."
If you actually believe what Phil is saying, then this PDP should be arguing for maintaining the status quo, i.e. don't change anything at all. That would be the only position that isn't hypocritical.
But, this workgroup does not actually believe that --- because it's already said there is a scenario that had not been contemplated by the UDRP. It has identified a flaw that needs to be fixed, because of that "procedural path to justice" being changed as I noted above.
We're not singling out IGOs --- the same issue needs to be fixed in the RPM PDP, where "de novo review" on the merits is blocked by the courts if the court action is brought by a domain name registrant in certain jurisdictions, due to false assumptions when the UDRP/URS were created that a cause of action even existed if the domain name registrant was the plaintiff (as opposed to being a defendant who did have a valid defense to a TM infringement action).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Mon, Nov 20, 2017 at 10:29 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
These are personal comments and not directives or rulings from the Co-Chair.
The PDP Working Group is part of a policy process. After a WG delivers its Final Report and Recommendations the process continues, with the output requiring further approval of the GNSO Council and then the ICANN Board to be effectuated (and with the Board possibly having to consider contrary, consensus GAC advice when making its own determination). If those subsequent approvals are not obtained the entire effort of the WG is for naught. It is not "playing politics" for a WG to consider whether its final recommendations will pass muster at the next stages of process review, and policymaking is always the art of the possible and often requires pragmatic compromise.
My own evolution in thinking on Option 1/A (and I don't believe I ever expressed a preference for that over Option 2/C at the time our Initial report was released) was in part based upon a further understanding that 4k of the UDRP https://www.icann.org/resources/pages/policy-2012-02-25-en states:
k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name. (Emphasis added)
That language made clear to me that Option 1/A would single IGOs out for disparate treatment in the UDRP in that, were any other Complainant successful in having a registrant's lawsuit dismissed for any valid reason, the stay on the implementation of the Administrative Panel's decision to extinguish or transfer the domain would be lifted and the decision would be effectuated; whereas that Option would state that for IGOs, and IGOs alone, the decision would be vitiated.
My view is that for that disparate treatment alone the Council and Board would be highly likely to reject a report and recommendations containing such a policy recommendation. Additional reasons why I cannot support it are:
Such a recommendation is at odds with the WG Charter's charge that we ensure that IGOs have effective access to CRP The effect of the recommendation would be to penalize IGOs for effectively asserting an immunity defense in judicial proceedings, as the result would be to set aside a prior determination that the domain was being used to facilitate cybersquatting (and yes, I know that in some instances UDRP decisions are in error and are set aside on judicial appeal; but in the great majority of cases the original panel decision is correct) and that this result would likewise be unacceptable to Council and the Board. It would also be inconsistent with the WG's prior determination that ICANN should not interfere with the legal rights of either party to a UDRP, and should leave judicial determinations to the courts. The recommendation might well incentivize losing domain registrants to file judicial appeal in a belief that an IGO - faced with the choice between acquiescing to the court's jurisdiction, or asserting an immunity defense the successful invocation of which would be penalized by panel determination vitiation -- would choose to not participate in the adjudication and thereby provide the registrant with a default judgment in its favor.
Please note that all these reasons (which I have articulated previously in both oral and written form) are based on law, policy, and pragmatic policymaking considerations and that none constitute "fear mongering".
The positive reasons why I personally support Option 2/C are that:
It is consistent with the WG's determination to leave the determination of legal rights and defenses to national law and courts of mutual jurisdiction. It does nothing to improve or detract from an IGO's ability to successfully assert and immunity defense. It improves the position of domain registrants by assuring that in those rare instances in which a court grants an IGO's immunity claim and dismisses the judicial action they still will have an ability to secure a de novo determination from an expert and impartial panel based upon the same national law that was the basis for the judicial action. Under current UDRP policy, the judicial dismissal would leave the registrant with no further recourse for "appeal".
Finally, let me be clear that my views on this matter have never been motivated by a desire to acquiesce to the GAC's. I believe that if Option 2/C is included in our final report and if GAC members actually give a fair reading to it they will conclude that this recommendation is based upon reasoned principles that deserve GAC support. However, I have never favored the consistent GAC position on this matter -- that we should create separate CRP processes for IGOs in which domain registrants are deprived of an opportunity to secure judicial review - as we have found no basis for IGOs to secure standing for such actions other than trademark law, and because it would be an abuse of ICANN's limited remit for it to attempt to deprive registrants of existing legal rights based upon the type of Complainant initiating a CRP action.
Best to all,
Philip
Philip S. Corwin
Founding Principal
Virtualaw LLC
1155 F Street, NW
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 <gnso-igo-ingo-crp-bounces@icann.org> on behalf of George Kirikos <icann@leap.com> Sent: Thursday, November 16, 2017 1:27 PM To: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Hi folks,
On Thu, Nov 16, 2017 at 12:24 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
I completely agree with Paul on this. These IGO names issues have been a political football for nearly five years now. The GAC is never going to get the GNSO to say what the GAC wants it to say -- we are not going to agree. The GAC has never proved any legitimate public interest concern to back their position. Accordingly, the IGO names policy was passed by a supermajority of the GNSO (as likely will be this latest policy recommendation) and that has implications in the Bylaws for the Board. The Board needs to make a decision. The GNSO need not be interested in politics, that is the Board and GAC's concern; we are interested in facts and real world policy.
Yet, the backers of Option C within this PDP have *also* been playing politics. It was pretty much established that Option 1 (now Option A) had the backing of this PDP when the preliminary report went out earlier this year, as I pointed out in today's call, based on all the analysis of law and facts. What "new information" or "new facts" or "new analysis" have been presented to get some members of this PDP to shift to the old Option 2 (now Option C)? Absolutely none -- just scaremongering about how the GNSO Council or others might react ---- *that's* politics. There's nothing "principles based" about Option C that has anything to do with facts or law.
Politics were being played even *before* we got to this PDP. The prior PDP should have just said "No more", but then they kicked the can down the road (leading to this 3 years of work), which the IGOs themselves have not participated in.
I hope that folks regain their bearings before this PDP is over, and really think hard about the fundamental principles that lead to policy decisions (I've been reading Ray Dalio's new book "Principles" lately).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
Leap of Faith Financial Services Inc. www.leap.com Leap of Faith Financial Services Inc. is a privately held company based in Toronto, Canada.
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
It was sent from my old email address because it came in before ICANN switched WG emails to my new address. It should heve been received by the entire WG. In any event, they now have the full text as it was contained in your reply. -----Original Message----- From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Monday, November 20, 2017 11:08 AM To: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July P.S. FYI, the post I'm responding to was sent by Phil using his old email address (that is no longer subscribed to this mailing list, apparently), not his new @verisign.com email account which is subscribed to the list. Thus, his original email didn't actually get broadcast to the rest of the mailing list (I only received it because my email address was listed in addition to the mailing list address in the "To" field). However, his email was included in its entirety below my response. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Nov 20, 2017 at 11:01 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
That post makes absolutely no sense, and is inconsistent with the idea
that we've even identified an issue at all that needs remediation.
If, as Phil claims, we need to take 4(k) as is, then that argues for
*not* implementing Option C (or Option 2 by the old numbering),
because that would be singling out the IGO for a further round of
arbitration, to their detriment. (as is, the dispute would be over,
and the IGO would get the domain name; why subject them to a further
procedure which they may lose? and even if the IGO won, they'd be
spending more time and money to do it)
I made a post on the RPM PDP mailing list yesterday that raises the
very closely related issue of having the "de novo review" struck for
lack of cause of action in some jurisdictions, see:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html
which identified the root cause of the problem, namely that:
"If there was no URS (or UDRP) policy in place what would be the "law"
and the procedural path to justice? Clearly, a trademark holder would
have a "cause of action" under trademark law against a domain name
registrant. The TM holder would file a lawsuit (as plaintiff) against
the domain name registrant (as defendant).
With the URS (or UDRP), the procedural path to justice is altered in
the event a TM holder uses it and is successful under the ADR. To
challenge the outcome of the ADR, the domain name registrant now has
the role of the plaintiff in court, and the TM holder is the
defendant. The parties have switched their prior positions as
plaintiffs and defendants, and it turns out that might cause a
significant problem in some jurisdictions. i.e. it might make a
difference which party to the dispute files in court as plaintiff in
some jurisdictions."
Where Phil is coming from, he's saying "Take the UDRP as given, and
AFTER that procedure is applied, leave the determination of legal
rights and defenses to national law and courts of mutual
jurisdiction."
Whereas those of us who are convinced Option A (or Option 1 under the
old numbering) is correct, we're saying "We do not take the UDRP as
given! ICANN can't create a policy that interferes with the legal
rights and defenses to national law in the first place. And the UDRP
as written has already done that, caused that interference."
If you actually believe what Phil is saying, then this PDP should be
arguing for maintaining the status quo, i.e. don't change anything at
all. That would be the only position that isn't hypocritical.
But, this workgroup does not actually believe that --- because it's
already said there is a scenario that had not been contemplated by the
UDRP. It has identified a flaw that needs to be fixed, because of that
"procedural path to justice" being changed as I noted above.
We're not singling out IGOs --- the same issue needs to be fixed in
the RPM PDP, where "de novo review" on the merits is blocked by the
courts if the court action is brought by a domain name registrant in
certain jurisdictions, due to false assumptions when the UDRP/URS were
created that a cause of action even existed if the domain name
registrant was the plaintiff (as opposed to being a defendant who did
have a valid defense to a TM infringement action).
Sincerely,
George Kirikos
416-588-0269
On Mon, Nov 20, 2017 at 10:29 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote:
These are personal comments and not directives or rulings from the Co-Chair.
The PDP Working Group is part of a policy process. After a WG
delivers its Final Report and Recommendations the process continues,
with the output requiring further approval of the GNSO Council and
then the ICANN Board to be effectuated (and with the Board possibly
having to consider contrary, consensus GAC advice when making its own
determination). If those subsequent approvals are not obtained the
entire effort of the WG is for naught. It is not "playing politics"
for a WG to consider whether its final recommendations will pass
muster at the next stages of process review, and policymaking is
always the art of the possible and often requires pragmatic compromise.
My own evolution in thinking on Option 1/A (and I don't believe I
ever expressed a preference for that over Option 2/C at the time our
Initial report was released) was in part based upon a further
understanding that 4k of the UDRP
states:
k. Availability of Court Proceedings. The mandatory administrative
proceeding requirements set forth in Paragraph 4 shall not prevent
either you or the complainant from submitting the dispute to a court
of competent jurisdiction for independent resolution before such
mandatory administrative proceeding is commenced or after such
proceeding is concluded. If an Administrative Panel decides that your
domain name registration should be canceled or transferred, we will
wait ten (10) business days (as observed in the location of our
principal office) after we are informed by the applicable Provider of
the Administrative Panel's decision before implementing that
decision. We will then implement the decision unless we have received
from you during that ten (10) business day period official
documentation (such as a copy of a complaint, file-stamped by the
clerk of the court) that you have commenced a lawsuit against the
complainant in a jurisdiction to which the complainant has submitted
under Paragraph
3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction
is either the location of our principal office or of your address as
shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the
Rules of Procedure for details.) If we receive such documentation
within the ten (10) business day period, we will not implement the
Administrative Panel's decision, and we will take no further action,
until we receive (i) evidence satisfactory to us of a resolution
between the parties; (ii) evidence satisfactory to us that your
lawsuit has been dismissed or withdrawn; or
(iii) a copy of an order from such court dismissing your lawsuit or
ordering that you do not have the right to continue to use your domain name.
(Emphasis added)
That language made clear to me that Option 1/A would single IGOs out
for disparate treatment in the UDRP in that, were any other
Complainant successful in having a registrant's lawsuit dismissed
for any valid reason, the stay on the implementation of the
Administrative Panel's decision to extinguish or transfer the domain
would be lifted and the decision would be effectuated; whereas that
Option would state that for IGOs, and IGOs alone, the decision would be vitiated.
My view is that for that disparate treatment alone the Council and
Board would be highly likely to reject a report and recommendations
containing such a policy recommendation. Additional reasons why I
cannot support it
are:
Such a recommendation is at odds with the WG Charter's charge that we
ensure that IGOs have effective access to CRP The effect of the
recommendation would be to penalize IGOs for effectively asserting an
immunity defense in judicial proceedings, as the result would be to
set aside a prior determination that the domain was being used to
facilitate cybersquatting (and yes, I know that in some instances
UDRP decisions are in error and are set aside on judicial appeal; but
in the great majority of cases the original panel decision is
correct) and that this result would likewise be unacceptable to
Council and the Board. It would also be inconsistent with the WG's
prior determination that ICANN should not interfere with the legal
rights of either party to a UDRP, and should leave judicial determinations to the courts.
The recommendation might well incentivize losing domain registrants
to file judicial appeal in a belief that an IGO - faced with the
choice between acquiescing to the court's jurisdiction, or asserting
an immunity defense the successful invocation of which would be
penalized by panel determination vitiation -- would choose to not
participate in the adjudication and thereby provide the registrant with a default judgment in its favor.
Please note that all these reasons (which I have articulated
previously in both oral and written form) are based on law, policy,
and pragmatic policymaking considerations and that none constitute "fear mongering".
The positive reasons why I personally support Option 2/C are that:
It is consistent with the WG's determination to leave the
determination of legal rights and defenses to national law and courts of mutual jurisdiction.
It does nothing to improve or detract from an IGO's ability to
successfully assert and immunity defense.
It improves the position of domain registrants by assuring that in
those rare instances in which a court grants an IGO's immunity claim
and dismisses the judicial action they still will have an ability to
secure a de novo determination from an expert and impartial panel
based upon the same national law that was the basis for the judicial
action. Under current UDRP policy, the judicial dismissal would leave
the registrant with no further recourse for "appeal".
Finally, let me be clear that my views on this matter have never been
motivated by a desire to acquiesce to the GAC's. I believe that if
Option 2/C is included in our final report and if GAC members
actually give a fair reading to it they will conclude that this
recommendation is based upon reasoned principles that deserve GAC
support. However, I have never favored the consistent GAC position on
this matter -- that we should create separate CRP processes for IGOs
in which domain registrants are deprived of an opportunity to secure
judicial review - as we have found no basis for IGOs to secure
standing for such actions other than trademark law, and because it
would be an abuse of ICANN's limited remit for it to attempt to
deprive registrants of existing legal rights based upon the type of Complainant initiating a CRP action.
Best to all,
Philip
Philip S. Corwin
Founding Principal
Virtualaw LLC
1155 F Street, NW
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 <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on
behalf of George Kirikos <icann@leap.com<mailto:icann@leap.com>>
Sent: Thursday, November 16, 2017 1:27 PM
To: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for
Working Group meeting on Thursday 27 July
Hi folks,
On Thu, Nov 16, 2017 at 12:24 PM, Mike Rodenbaugh
<mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>>
wrote:
I completely agree with Paul on this. These IGO names issues have
been a political football for nearly five years now. The GAC is
never going to get the GNSO to say what the GAC wants it to say -- we are not going to agree.
The GAC has never proved any legitimate public interest concern to
back their position. Accordingly, the IGO names policy was passed
by a supermajority of the GNSO (as likely will be this latest policy
recommendation) and that has implications in the Bylaws for the
Board. The Board needs to make a decision. The GNSO need not be
interested in politics, that is the Board and GAC's concern; we are
interested in facts and real world policy.
Yet, the backers of Option C within this PDP have *also* been playing
politics. It was pretty much established that Option 1 (now Option A)
had the backing of this PDP when the preliminary report went out
earlier this year, as I pointed out in today's call, based on all the
analysis of law and facts. What "new information" or "new facts" or
"new analysis" have been presented to get some members of this PDP to
shift to the old Option 2 (now Option C)? Absolutely none -- just
scaremongering about how the GNSO Council or others might react ----
*that's* politics. There's nothing "principles based" about Option C
that has anything to do with facts or law.
Politics were being played even *before* we got to this PDP. The
prior PDP should have just said "No more", but then they kicked the
can down the road (leading to this 3 years of work), which the IGOs
themselves have not participated in.
I hope that folks regain their bearings before this PDP is over, and
really think hard about the fundamental principles that lead to
policy decisions (I've been reading Ray Dalio's new book "Principles"
lately).
Sincerely,
George Kirikos
416-588-0269
Leap of Faith Financial Services Inc.
www.leap.com<http://www.leap.com>
Leap of Faith Financial Services Inc. is a privately held company
based in Toronto, Canada.
_______________________________________________
Gnso-igo-ingo-crp mailing list
Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org>
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
participants (2)
-
Corwin, Philip -
George Kirikos