Agenda and documents for Working Group call this Thursday
Dear Working Group members, In view of the ongoing discussion relating to the final text and scope of Recommendation 3/Options A-C for our Final Report, the co-chairs would like to focus the Working Group call this week on those other recommendations for which there seem to be general agreement. As such, the proposed agenda for the call this week is: 1. Roll call/updates to Statements of Interest 2. Review/discussion of proposed final text for Recommendations 1, 2 & 4 3. Discussion of next steps for finalizing Recommendation 3 and timeline to completion of the Final Report For Agenda Item #2, staff has excerpted the proposed final text and related information for Recommendations 1, 2 & 4 in a separate document, attached – we have highlighted in blue those parts of the text that were either changed from or added to the text of our Initial Report. Please also note that Phil and Petter expect the call this week to last up to 60, as opposed to the scheduled 90, minutes. For your review and reference, we also attach the draft Final Report. This version is redlined from the Initial Report (showing all the changes and additions since the Initial Report was published, based on subsequent Working Group discussion and review of the public comments received), and has been reviewed by Petter and Phil. You’ll see that we have not inserted text for Recommendation 3 (pending further discussion by the Working Group) and there are also several comments and placeholders that will need to be addressed following additional Working Group input. Based on our consultations with Phil and Petter, staff expects that the Working Group will discuss the draft Final Report in the next couple of weeks. Thanks and cheers Mary
Hi folks, Some initial comments on the "Excerpts" document: 1. For Recommendation #2 on page 1, the very first sentence makes it seem that complying with the Article 6ter requirements is *sufficient* for standing (i.e. the first prong of the UDRP), when it says "An IGO may elect to fulfil the requirement that.....". Although it's later weakened by the "For the avoidance of doubt" section (b) below it in the same paragraph, it seems very confusing as written at the beginning of the paragraph. It should perhaps rewritten to emphasize in clear terms that Article 6ter recorded strings may be considered *evidence* for standing, but not proof (and then it would be more consistent with 2(b). 2. I don't know what the level of consensus would be for Recommendation #4 as written on page 2, but I'd oppose ICANN subsidizing the costs of complaints filed by IGO. If there are to be subsidies, equal funding should also be provided to the domain registrant in that complaint (e.g. to pay for a 3-person panel). I don't see airlines or hotels or restaurants or other service providers giving free services to IGOs. If IGOs use the court system (as they do occasionally), they pay just like everybody else. Many IGOs (UN, WIPO, etc.) have budgets of hundreds of millions or even billions of dollars, have lawyers on staff, and are in much stronger financial positions than typical domain name registrants. Nothing is ever really "free" --- somebody ends up paying for it. If it's ICANN, that really means that domain name registrants are paying the costs (since they ultimately fund all of ICANN through their domain name registrations, directly or indirectly). There's no sense of financial discipline when folks are given handouts because they are "special" --- there's no shortage of people or organizations who believe themselves to be special, so if IGOs are going to get a handout, who's next? ICANN should be cutting back on spending and fees (a form of taxation on registrants) rather than engaging in mission creep and finding new things to spend money on. If we simply recommend that ICANN should "investigate the feasibility", isn't that just pushing the work to yet another working group, instead of us doing the job ourselves in this working group? We should make the hard choice ourselves, either say "Yes they should be subsidized" or "No they shouldn't", instead of punting the issue to a different working group (I'd go with the latter, saying "No"). 3. The draft agenda says we were not going to talk about Recommendation #4 when reviewing this document, but then page 2 of this document contains new text that indirectly references it, i.e. "and the possible use of an arbitration procedure in the case...." That should be struck until we know what is decided for Recommendation #4. 4. On page 3, the new text in point (1) "thereby avoiding any direct concession on the issue of mutual jurisdiction". Perhaps "exposure" is a better word than "concession" 5. On page 3, "(3) the WG’s recommendation that where an IGO successfully asserts jurisdictional immunity against a losing respondent in a national court the case may be brought to arbitration instead at the registrant’s option;" seems to be new text again (it's black in my PDF -- shouldn't it be blue?) slipped in that references Option #4 which hasn't been decided, and which should be struck. 6. Just to go back to my prior point about "costs", take a look at page 4, point #3 --- how is that reasoning any different for IGOs? "Although some INGOs may be concerned about the cost of using the UDRP and the URS, because enforcement through these rights protection mechanisms involves some expenditure of funds, this is not a problem for all INGOs nor is it unique to INGOs as among all rights holders. Furthermore, the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter, and it has no authority to obligate any party (including ICANN) to subsidize the rights protection of another." The document is hypocritical to say for that INGOs, but not make the identical conclusion for IGOs too. As currently written, it seems more like kowtowing to the GAC for the IGO subsidies, rather than any principled rationale for it. 7. Same comments as point #1 above apply to the copied text at the bottom of page 5. 8. Bottom of page 6: Text needs to change, because it still seems to be written from the perspective that Article 6ter *is* sufficient, e.g. "The WG believes that reliance on Article 6ter for the limited purpose of demonstrating standing will not necessarily result in an increased number of complaints...." despite our shifted recommendation on this topic. 9. Bottom of page 7: See earlier comments on costs above in points #2 and #6. The only "rationale", if one can call it that, is that "Nevertheless, in view of GAC advice on the topic, it is within the WG’s Charter scope to recommend that ICANN investigate the feasibility of providing IGOs and INGOs with the ability to file UDRP and URS complaints at no or minimal cost." That's not a rationale based on any reasoning, other than "the GAC likes it, so let's put it in" ---- there's no principle behind it, and it's entirely inconsistent with the reasoning for INGOs. above. 10. I just noticed that in both Recommendations #4 (i.e. on page 7, and also back on page 2), it's suggesting that both IGOs *and* INGOs be subsidized (I had initially thought it was for IGOs only). That's even more hypocrisy, given the point #6 above which claimed "the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter", furthermore the GAC advice appears limited to just IGO subsidies --- and those who favour subsidies in this PDP would be suggesting that INGOs be subsidized too. That means subsidies for Red Cross, IOC, and the many thousands of other INGOs that exist (and then there'd be the problem of identifying which INGOs are "real" INGOs, i.e. the ECOSOC list, or some other standard??). 11. And for those still on the fence about Option A and Option C (for discussion on a future call), note on page 3 the text: "(4) the importance of recognizing and preserving a registrant’s longstanding legal right to bring a case to a court of competent jurisdiction combined with *****ICANN’s questionable authority to deny such judicial access;*****" (emphasis added) We know that the scenario we've discussed effectively results in that denial of judicial access, and thus that speaks to why Option A is the only option consistent with the full preservation of legal rights that this PDP claims to be important. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Nov 28, 2017 at 5:12 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear Working Group members,
In view of the ongoing discussion relating to the final text and scope of Recommendation 3/Options A-C for our Final Report, the co-chairs would like to focus the Working Group call this week on those other recommendations for which there seem to be general agreement. As such, the proposed agenda for the call this week is:
Roll call/updates to Statements of Interest Review/discussion of proposed final text for Recommendations 1, 2 & 4 Discussion of next steps for finalizing Recommendation 3 and timeline to completion of the Final Report
For Agenda Item #2, staff has excerpted the proposed final text and related information for Recommendations 1, 2 & 4 in a separate document, attached – we have highlighted in blue those parts of the text that were either changed from or added to the text of our Initial Report.
Please also note that Phil and Petter expect the call this week to last up to 60, as opposed to the scheduled 90, minutes.
For your review and reference, we also attach the draft Final Report. This version is redlined from the Initial Report (showing all the changes and additions since the Initial Report was published, based on subsequent Working Group discussion and review of the public comments received), and has been reviewed by Petter and Phil. You’ll see that we have not inserted text for Recommendation 3 (pending further discussion by the Working Group) and there are also several comments and placeholders that will need to be addressed following additional Working Group input.
Based on our consultations with Phil and Petter, staff expects that the Working Group will discuss the draft Final Report in the next couple of weeks.
Thanks and cheers
Mary
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Correction: On point #3, I wrote "The draft agenda says we were not going to talk about Recommendation #4 " ---- I meant "Recommendation #3". Identical typo in my point #5. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Nov 29, 2017 at 8:04 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Some initial comments on the "Excerpts" document:
1. For Recommendation #2 on page 1, the very first sentence makes it seem that complying with the Article 6ter requirements is *sufficient* for standing (i.e. the first prong of the UDRP), when it says "An IGO may elect to fulfil the requirement that.....". Although it's later weakened by the "For the avoidance of doubt" section (b) below it in the same paragraph, it seems very confusing as written at the beginning of the paragraph. It should perhaps rewritten to emphasize in clear terms that Article 6ter recorded strings may be considered *evidence* for standing, but not proof (and then it would be more consistent with 2(b).
2. I don't know what the level of consensus would be for Recommendation #4 as written on page 2, but I'd oppose ICANN subsidizing the costs of complaints filed by IGO. If there are to be subsidies, equal funding should also be provided to the domain registrant in that complaint (e.g. to pay for a 3-person panel).
I don't see airlines or hotels or restaurants or other service providers giving free services to IGOs. If IGOs use the court system (as they do occasionally), they pay just like everybody else. Many IGOs (UN, WIPO, etc.) have budgets of hundreds of millions or even billions of dollars, have lawyers on staff, and are in much stronger financial positions than typical domain name registrants. Nothing is ever really "free" --- somebody ends up paying for it. If it's ICANN, that really means that domain name registrants are paying the costs (since they ultimately fund all of ICANN through their domain name registrations, directly or indirectly). There's no sense of financial discipline when folks are given handouts because they are "special" --- there's no shortage of people or organizations who believe themselves to be special, so if IGOs are going to get a handout, who's next? ICANN should be cutting back on spending and fees (a form of taxation on registrants) rather than engaging in mission creep and finding new things to spend money on.
If we simply recommend that ICANN should "investigate the feasibility", isn't that just pushing the work to yet another working group, instead of us doing the job ourselves in this working group? We should make the hard choice ourselves, either say "Yes they should be subsidized" or "No they shouldn't", instead of punting the issue to a different working group (I'd go with the latter, saying "No").
3. The draft agenda says we were not going to talk about Recommendation #4 when reviewing this document, but then page 2 of this document contains new text that indirectly references it, i.e. "and the possible use of an arbitration procedure in the case...." That should be struck until we know what is decided for Recommendation #4.
4. On page 3, the new text in point (1) "thereby avoiding any direct concession on the issue of mutual jurisdiction". Perhaps "exposure" is a better word than "concession"
5. On page 3, "(3) the WG’s recommendation that where an IGO successfully asserts jurisdictional immunity against a losing respondent in a national court the case may be brought to arbitration instead at the registrant’s option;" seems to be new text again (it's black in my PDF -- shouldn't it be blue?) slipped in that references Option #4 which hasn't been decided, and which should be struck.
6. Just to go back to my prior point about "costs", take a look at page 4, point #3 --- how is that reasoning any different for IGOs?
"Although some INGOs may be concerned about the cost of using the UDRP and the URS, because enforcement through these rights protection mechanisms involves some expenditure of funds, this is not a problem for all INGOs nor is it unique to INGOs as among all rights holders. Furthermore, the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter, and it has no authority to obligate any party (including ICANN) to subsidize the rights protection of another."
The document is hypocritical to say for that INGOs, but not make the identical conclusion for IGOs too. As currently written, it seems more like kowtowing to the GAC for the IGO subsidies, rather than any principled rationale for it.
7. Same comments as point #1 above apply to the copied text at the bottom of page 5.
8. Bottom of page 6: Text needs to change, because it still seems to be written from the perspective that Article 6ter *is* sufficient, e.g. "The WG believes that reliance on Article 6ter for the limited purpose of demonstrating standing will not necessarily result in an increased number of complaints...." despite our shifted recommendation on this topic.
9. Bottom of page 7: See earlier comments on costs above in points #2 and #6. The only "rationale", if one can call it that, is that "Nevertheless, in view of GAC advice on the topic, it is within the WG’s Charter scope to recommend that ICANN investigate the feasibility of providing IGOs and INGOs with the ability to file UDRP and URS complaints at no or minimal cost." That's not a rationale based on any reasoning, other than "the GAC likes it, so let's put it in" ---- there's no principle behind it, and it's entirely inconsistent with the reasoning for INGOs. above.
10. I just noticed that in both Recommendations #4 (i.e. on page 7, and also back on page 2), it's suggesting that both IGOs *and* INGOs be subsidized (I had initially thought it was for IGOs only). That's even more hypocrisy, given the point #6 above which claimed "the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter", furthermore the GAC advice appears limited to just IGO subsidies --- and those who favour subsidies in this PDP would be suggesting that INGOs be subsidized too. That means subsidies for Red Cross, IOC, and the many thousands of other INGOs that exist (and then there'd be the problem of identifying which INGOs are "real" INGOs, i.e. the ECOSOC list, or some other standard??).
11. And for those still on the fence about Option A and Option C (for discussion on a future call), note on page 3 the text:
"(4) the importance of recognizing and preserving a registrant’s longstanding legal right to bring a case to a court of competent jurisdiction combined with *****ICANN’s questionable authority to deny such judicial access;*****" (emphasis added) We know that the scenario we've discussed effectively results in that denial of judicial access, and thus that speaks to why Option A is the only option consistent with the full preservation of legal rights that this PDP claims to be important.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Tue, Nov 28, 2017 at 5:12 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear Working Group members,
In view of the ongoing discussion relating to the final text and scope of Recommendation 3/Options A-C for our Final Report, the co-chairs would like to focus the Working Group call this week on those other recommendations for which there seem to be general agreement. As such, the proposed agenda for the call this week is:
Roll call/updates to Statements of Interest Review/discussion of proposed final text for Recommendations 1, 2 & 4 Discussion of next steps for finalizing Recommendation 3 and timeline to completion of the Final Report
For Agenda Item #2, staff has excerpted the proposed final text and related information for Recommendations 1, 2 & 4 in a separate document, attached – we have highlighted in blue those parts of the text that were either changed from or added to the text of our Initial Report.
Please also note that Phil and Petter expect the call this week to last up to 60, as opposed to the scheduled 90, minutes.
For your review and reference, we also attach the draft Final Report. This version is redlined from the Initial Report (showing all the changes and additions since the Initial Report was published, based on subsequent Working Group discussion and review of the public comments received), and has been reviewed by Petter and Phil. You’ll see that we have not inserted text for Recommendation 3 (pending further discussion by the Working Group) and there are also several comments and placeholders that will need to be addressed following additional Working Group input.
Based on our consultations with Phil and Petter, staff expects that the Working Group will discuss the draft Final Report in the next couple of weeks.
Thanks and cheers
Mary
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Thanks for these useful comments, George, all of which can be discussed when we reach the corresponding provisions of the draft Final Report in our WG call(s). I appreciate your thorough review of the draft. I do wish to note that I personally disagree with this statement in your final point -- "(4) the importance of recognizing and preserving a registrant’s
longstanding legal right to bring a case to a court of competent jurisdiction combined with *****ICANN’s questionable authority to deny such judicial access;*****" (emphasis added) We know that the scenario we've discussed effectively results in that denial of judicial access, and thus that speaks to why Option A is the only option consistent with the full preservation of legal rights that this PDP claims to be important." --
Option C, which is not on the agenda for today's call but which will receive a final vetting prior to any binding consensus call, does not effectively deny judicial access to registrants. That would be a judicial determination over which ICANN has no control, and Option C provides an alternative means for a registrant to obtain a de novo review under relevant national law in that likely rare circumstance. Best, Philip 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: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Wednesday, November 29, 2017 8:13 PM To: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Agenda and documents for Working Group call this Thursday Correction: On point #3, I wrote "The draft agenda says we were not going to talk about Recommendation #4 " ---- I meant "Recommendation #3". Identical typo in my point #5. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Nov 29, 2017 at 8:04 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Some initial comments on the "Excerpts" document:
1. For Recommendation #2 on page 1, the very first sentence makes it seem that complying with the Article 6ter requirements is *sufficient* for standing (i.e. the first prong of the UDRP), when it says "An IGO may elect to fulfil the requirement that.....". Although it's later weakened by the "For the avoidance of doubt" section (b) below it in the same paragraph, it seems very confusing as written at the beginning of the paragraph. It should perhaps rewritten to emphasize in clear terms that Article 6ter recorded strings may be considered *evidence* for standing, but not proof (and then it would be more consistent with 2(b).
2. I don't know what the level of consensus would be for Recommendation #4 as written on page 2, but I'd oppose ICANN subsidizing the costs of complaints filed by IGO. If there are to be subsidies, equal funding should also be provided to the domain registrant in that complaint (e.g. to pay for a 3-person panel).
I don't see airlines or hotels or restaurants or other service providers giving free services to IGOs. If IGOs use the court system (as they do occasionally), they pay just like everybody else. Many IGOs (UN, WIPO, etc.) have budgets of hundreds of millions or even billions of dollars, have lawyers on staff, and are in much stronger financial positions than typical domain name registrants. Nothing is ever really "free" --- somebody ends up paying for it. If it's ICANN, that really means that domain name registrants are paying the costs (since they ultimately fund all of ICANN through their domain name registrations, directly or indirectly). There's no sense of financial discipline when folks are given handouts because they are "special" --- there's no shortage of people or organizations who believe themselves to be special, so if IGOs are going to get a handout, who's next? ICANN should be cutting back on spending and fees (a form of taxation on registrants) rather than engaging in mission creep and finding new things to spend money on.
If we simply recommend that ICANN should "investigate the feasibility", isn't that just pushing the work to yet another working group, instead of us doing the job ourselves in this working group? We should make the hard choice ourselves, either say "Yes they should be subsidized" or "No they shouldn't", instead of punting the issue to a different working group (I'd go with the latter, saying "No").
3. The draft agenda says we were not going to talk about Recommendation #4 when reviewing this document, but then page 2 of this document contains new text that indirectly references it, i.e. "and the possible use of an arbitration procedure in the case...." That should be struck until we know what is decided for Recommendation #4.
4. On page 3, the new text in point (1) "thereby avoiding any direct concession on the issue of mutual jurisdiction". Perhaps "exposure" is a better word than "concession"
5. On page 3, "(3) the WG’s recommendation that where an IGO successfully asserts jurisdictional immunity against a losing respondent in a national court the case may be brought to arbitration instead at the registrant’s option;" seems to be new text again (it's black in my PDF -- shouldn't it be blue?) slipped in that references Option #4 which hasn't been decided, and which should be struck.
6. Just to go back to my prior point about "costs", take a look at page 4, point #3 --- how is that reasoning any different for IGOs?
"Although some INGOs may be concerned about the cost of using the UDRP and the URS, because enforcement through these rights protection mechanisms involves some expenditure of funds, this is not a problem for all INGOs nor is it unique to INGOs as among all rights holders. Furthermore, the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter, and it has no authority to obligate any party (including ICANN) to subsidize the rights protection of another."
The document is hypocritical to say for that INGOs, but not make the identical conclusion for IGOs too. As currently written, it seems more like kowtowing to the GAC for the IGO subsidies, rather than any principled rationale for it.
7. Same comments as point #1 above apply to the copied text at the bottom of page 5.
8. Bottom of page 6: Text needs to change, because it still seems to be written from the perspective that Article 6ter *is* sufficient, e.g. "The WG believes that reliance on Article 6ter for the limited purpose of demonstrating standing will not necessarily result in an increased number of complaints...." despite our shifted recommendation on this topic.
9. Bottom of page 7: See earlier comments on costs above in points #2 and #6. The only "rationale", if one can call it that, is that "Nevertheless, in view of GAC advice on the topic, it is within the WG’s Charter scope to recommend that ICANN investigate the feasibility of providing IGOs and INGOs with the ability to file UDRP and URS complaints at no or minimal cost." That's not a rationale based on any reasoning, other than "the GAC likes it, so let's put it in" ---- there's no principle behind it, and it's entirely inconsistent with the reasoning for INGOs. above.
10. I just noticed that in both Recommendations #4 (i.e. on page 7, and also back on page 2), it's suggesting that both IGOs *and* INGOs be subsidized (I had initially thought it was for IGOs only). That's even more hypocrisy, given the point #6 above which claimed "the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter", furthermore the GAC advice appears limited to just IGO subsidies --- and those who favour subsidies in this PDP would be suggesting that INGOs be subsidized too. That means subsidies for Red Cross, IOC, and the many thousands of other INGOs that exist (and then there'd be the problem of identifying which INGOs are "real" INGOs, i.e. the ECOSOC list, or some other standard??).
11. And for those still on the fence about Option A and Option C (for discussion on a future call), note on page 3 the text:
"(4) the importance of recognizing and preserving a registrant’s longstanding legal right to bring a case to a court of competent jurisdiction combined with *****ICANN’s questionable authority to deny such judicial access;*****" (emphasis added) We know that the scenario we've discussed effectively results in that denial of judicial access, and thus that speaks to why Option A is the only option consistent with the full preservation of legal rights that this PDP claims to be important.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Tue, Nov 28, 2017 at 5:12 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear Working Group members,
In view of the ongoing discussion relating to the final text and scope of Recommendation 3/Options A-C for our Final Report, the co-chairs would like to focus the Working Group call this week on those other recommendations for which there seem to be general agreement. As such, the proposed agenda for the call this week is:
Roll call/updates to Statements of Interest Review/discussion of proposed final text for Recommendations 1, 2 & 4 Discussion of next steps for finalizing Recommendation 3 and timeline to completion of the Final Report
For Agenda Item #2, staff has excerpted the proposed final text and related information for Recommendations 1, 2 & 4 in a separate document, attached – we have highlighted in blue those parts of the text that were either changed from or added to the text of our Initial Report.
Please also note that Phil and Petter expect the call this week to last up to 60, as opposed to the scheduled 90, minutes.
For your review and reference, we also attach the draft Final Report. This version is redlined from the Initial Report (showing all the changes and additions since the Initial Report was published, based on subsequent Working Group discussion and review of the public comments received), and has been reviewed by Petter and Phil. You’ll see that we have not inserted text for Recommendation 3 (pending further discussion by the Working Group) and there are also several comments and placeholders that will need to be addressed following additional Working Group input.
Based on our consultations with Phil and Petter, staff expects that the Working Group will discuss the draft Final Report in the next couple of weeks.
Thanks and cheers
Mary
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Phil, This statement is not correct. ICANN has a duty to provide the correct answer rather than allow completely new arbitration mechanism to be built on an outcome which is effectively a quirk of process. If there was any logic in this reasoning then the mutual jurisdiction clause should not be allowed to stand. Yours sincerely, Paul. On Thu, Nov 30, 2017 at 4:00 PM, Corwin, Philip via Gnso-igo-ingo-crp < gnso-igo-ingo-crp@icann.org> wrote:
Thanks for these useful comments, George, all of which can be discussed when we reach the corresponding provisions of the draft Final Report in our WG call(s). I appreciate your thorough review of the draft.
I do wish to note that I personally disagree with this statement in your final point --
"(4) the importance of recognizing and preserving a registrant’s
longstanding legal right to bring a case to a court of competent jurisdiction combined with *****ICANN’s questionable authority to deny such judicial access;*****" (emphasis added) We know that the scenario we've discussed effectively results in that denial of judicial access, and thus that speaks to why Option A is the only option consistent with the full preservation of legal rights that this PDP claims to be important." --
Option C, which is not on the agenda for today's call but which will receive a final vetting prior to any binding consensus call, does not effectively deny judicial access to registrants. That would be a judicial determination over which ICANN has no control, and Option C provides an alternative means for a registrant to obtain a de novo review under relevant national law in that likely rare circumstance.
Best, Philip
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: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Wednesday, November 29, 2017 8:13 PM To: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Agenda and documents for Working Group call this Thursday
Correction: On point #3, I wrote "The draft agenda says we were not going to talk about Recommendation #4 " ---- I meant "Recommendation #3". Identical typo in my point #5.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, Nov 29, 2017 at 8:04 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Some initial comments on the "Excerpts" document:
1. For Recommendation #2 on page 1, the very first sentence makes it seem that complying with the Article 6ter requirements is *sufficient* for standing (i.e. the first prong of the UDRP), when it says "An IGO may elect to fulfil the requirement that.....". Although it's later weakened by the "For the avoidance of doubt" section (b) below it in the same paragraph, it seems very confusing as written at the beginning of the paragraph. It should perhaps rewritten to emphasize in clear terms that Article 6ter recorded strings may be considered *evidence* for standing, but not proof (and then it would be more consistent with 2(b).
2. I don't know what the level of consensus would be for Recommendation #4 as written on page 2, but I'd oppose ICANN subsidizing the costs of complaints filed by IGO. If there are to be subsidies, equal funding should also be provided to the domain registrant in that complaint (e.g. to pay for a 3-person panel).
I don't see airlines or hotels or restaurants or other service providers giving free services to IGOs. If IGOs use the court system (as they do occasionally), they pay just like everybody else. Many IGOs (UN, WIPO, etc.) have budgets of hundreds of millions or even billions of dollars, have lawyers on staff, and are in much stronger financial positions than typical domain name registrants. Nothing is ever really "free" --- somebody ends up paying for it. If it's ICANN, that really means that domain name registrants are paying the costs (since they ultimately fund all of ICANN through their domain name registrations, directly or indirectly). There's no sense of financial discipline when folks are given handouts because they are "special" --- there's no shortage of people or organizations who believe themselves to be special, so if IGOs are going to get a handout, who's next? ICANN should be cutting back on spending and fees (a form of taxation on registrants) rather than engaging in mission creep and finding new things to spend money on.
If we simply recommend that ICANN should "investigate the feasibility", isn't that just pushing the work to yet another working group, instead of us doing the job ourselves in this working group? We should make the hard choice ourselves, either say "Yes they should be subsidized" or "No they shouldn't", instead of punting the issue to a different working group (I'd go with the latter, saying "No").
3. The draft agenda says we were not going to talk about Recommendation #4 when reviewing this document, but then page 2 of this document contains new text that indirectly references it, i.e. "and the possible use of an arbitration procedure in the case...." That should be struck until we know what is decided for Recommendation #4.
4. On page 3, the new text in point (1) "thereby avoiding any direct concession on the issue of mutual jurisdiction". Perhaps "exposure" is a better word than "concession"
5. On page 3, "(3) the WG’s recommendation that where an IGO successfully asserts jurisdictional immunity against a losing respondent in a national court the case may be brought to arbitration instead at the registrant’s option;" seems to be new text again (it's black in my PDF -- shouldn't it be blue?) slipped in that references Option #4 which hasn't been decided, and which should be struck.
6. Just to go back to my prior point about "costs", take a look at page 4, point #3 --- how is that reasoning any different for IGOs?
"Although some INGOs may be concerned about the cost of using the UDRP and the URS, because enforcement through these rights protection mechanisms involves some expenditure of funds, this is not a problem for all INGOs nor is it unique to INGOs as among all rights holders. Furthermore, the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter, and it has no authority to obligate any party (including ICANN) to subsidize the rights protection of another."
The document is hypocritical to say for that INGOs, but not make the identical conclusion for IGOs too. As currently written, it seems more like kowtowing to the GAC for the IGO subsidies, rather than any principled rationale for it.
7. Same comments as point #1 above apply to the copied text at the bottom of page 5.
8. Bottom of page 6: Text needs to change, because it still seems to be written from the perspective that Article 6ter *is* sufficient, e.g. "The WG believes that reliance on Article 6ter for the limited purpose of demonstrating standing will not necessarily result in an increased number of complaints...." despite our shifted recommendation on this topic.
9. Bottom of page 7: See earlier comments on costs above in points #2 and #6. The only "rationale", if one can call it that, is that "Nevertheless, in view of GAC advice on the topic, it is within the WG’s Charter scope to recommend that ICANN investigate the feasibility of providing IGOs and INGOs with the ability to file UDRP and URS complaints at no or minimal cost." That's not a rationale based on any reasoning, other than "the GAC likes it, so let's put it in" ---- there's no principle behind it, and it's entirely inconsistent with the reasoning for INGOs. above.
10. I just noticed that in both Recommendations #4 (i.e. on page 7, and also back on page 2), it's suggesting that both IGOs *and* INGOs be subsidized (I had initially thought it was for IGOs only). That's even more hypocrisy, given the point #6 above which claimed "the issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the WG’s Charter", furthermore the GAC advice appears limited to just IGO subsidies --- and those who favour subsidies in this PDP would be suggesting that INGOs be subsidized too. That means subsidies for Red Cross, IOC, and the many thousands of other INGOs that exist (and then there'd be the problem of identifying which INGOs are "real" INGOs, i.e. the ECOSOC list, or some other standard??).
11. And for those still on the fence about Option A and Option C (for discussion on a future call), note on page 3 the text:
"(4) the importance of recognizing and preserving a registrant’s longstanding legal right to bring a case to a court of competent jurisdiction combined with *****ICANN’s questionable authority to deny such judicial access;*****" (emphasis added) We know that the scenario we've discussed effectively results in that denial of judicial access, and thus that speaks to why Option A is the only option consistent with the full preservation of legal rights that this PDP claims to be important.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Tue, Nov 28, 2017 at 5:12 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear Working Group members,
In view of the ongoing discussion relating to the final text and scope of Recommendation 3/Options A-C for our Final Report, the co-chairs would like to focus the Working Group call this week on those other recommendations for which there seem to be general agreement. As such, the proposed agenda for the call this week is:
Roll call/updates to Statements of Interest Review/discussion of proposed final text for Recommendations 1, 2 & 4 Discussion of next steps for finalizing Recommendation 3 and timeline to completion of the Final Report
For Agenda Item #2, staff has excerpted the proposed final text and related information for Recommendations 1, 2 & 4 in a separate document, attached – we have highlighted in blue those parts of the text that were either changed from or added to the text of our Initial Report.
Please also note that Phil and Petter expect the call this week to last up to 60, as opposed to the scheduled 90, minutes.
For your review and reference, we also attach the draft Final Report. This version is redlined from the Initial Report (showing all the changes and additions since the Initial Report was published, based on subsequent Working Group discussion and review of the public comments received), and has been reviewed by Petter and Phil. You’ll see that we have not inserted text for Recommendation 3 (pending further discussion by the Working Group) and there are also several comments and placeholders that will need to be addressed following additional Working Group input.
Based on our consultations with Phil and Petter, staff expects that the Working Group will discuss the draft Final Report in the next couple of weeks.
Thanks and cheers
Mary
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participants (4)
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Corwin, Philip -
George Kirikos -
Mary Wong -
Paul Tattersfield