Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Dear Imran, Without highlighting the merits and disadvantages or arguing for or against any specific options, since it will not be appropriate for staff to do so, staff confirms that your conclusion about Option A correctly reflects the understanding of the Working Group. In short, applying Option A when the court case is dismissed because the IGO succeeds in claiming immunity from the court’s jurisdiction will mean that the original UDRP or URS decision will not be enforced – so the domain will remain with the registrant and not transferred to the IGO or canceled. This will mean a different rule applies to IGOs in this specific situation, compared to other situations where the court case is between a registrant and a non-IGO – in these other situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced. On your other question, please note that all the three options are independent of one another, so they cannot be combined in their current form. Thus, Option A and B cannot be read together as they are separate solutions. The Working Group discussed the details and consequences of these options over various calls. There were actually more than three options under discussion, and what we now see as Options B and, especially, C went through significant discussion and (in the case of Option C) amendment. The Working Group also conducted an Impact Analysis of all the many options (you can see that Impact Analysis document here: https://community.icann.org/x/mwghB). To gain a full understanding of all the many options and the various discussions over each of them, you would have to review the call recordings or transcripts from August and September. However, if you need a clear summary of what the final three options (A, B and C) are, you can review the materials that we sent out with the poll, i.e. the slides used for last week’s webinar and the final version of the Options Document: https://community.icann.org/x/64ZEB. I hope this is helpful. The chairs and other Working Group members may wish to add their own comments. Thanks and cheers Mary From: Imran Ahmed Shah <ias_pk@yahoo.com> Reply-To: Imran Ahmed Shah <ias_pk@yahoo.com> Date: Thursday, October 19, 2017 at 10:32 To: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: Imran Ahmed Shah <imran@uisoc.org> Subject: [Ext] Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C Dear Mary Wong, and Dear All WG Members, Thanks for the Survey and obtaining the opinion of all WG Members. While responding to the Survey, I found that the question asked in the survey is not very much clear, especially when I read the phrase of Option A alone or Option A & Option B together. However, Option C is well elaborated and reader can understand that what is being asked by him. May I ask to update the questions for ‘Option A’ and ‘Option B’ with some additional detail? Secondly, in Option A, the final statement “….the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated (i.e. set aside.)”, needs to be elaborated further. After consulting it further I reach on the following understanding: Explaining that which of the UDRP decision will be set aside/erased/not given force? Through a consultation, I learned that, this is the result of a success (of IGO) would be to set aside, which was the original UDRP decision. And this reversal would permit the cybersquatting found by the panel to persist. “The current rule is that if a registrant files a judicial appeal and the court case is subsequently dismissed for any reason, then the stay on enforcement for the original UDRP decision is lifted and the domain is transferred or extinguished. Option A would reverse that rule solely for IGOs.” May I ask the Option A proponents to explain it further (if the above explanation is not sufficient), for my understanding and for other members of the WG? Thanking you and Best Regards Imran Ahmed Shah ________________________________ From: Mary Wong <mary.wong@icann.org> To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Sent: Tuesday, 17 October 2017, 1:39 Subject: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C Dear Working Group members, At the direction of the co-chairs and with their approval, staff has prepared the following survey that we are asking all members to fill out by 1800 UTC on Monday 23 October. The purpose of the survey is to enable Phil and Petter to determine the level of preliminary consensus amongst all members for each of the three options under discussion, relating to the situation where a respondent has filed court proceedings against an IGO and the IGO has successfully claimed immunity in that court. As our open community session at ICANN60 will be devoted to a presentation and discussion of all our proposed final recommendations, it is important for Phil and Petter to know which option is the most preferred at this stage. * Link to survey: https://www.surveymonkey.com/r/VCP8VKD[surveymonkey.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.surveymonkey.com_r_VCP8VKD&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=XlDw6NXew-dGJm1CBaKCEg0N5s3LUqvT9lz7Hxht3VI&s=H6q19e1CNoiytuVQufO-8LqxLdGvQGGyKK8hbr6AbbA&e=> * Link to background materials: https://community.icann.org/x/64ZEB[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_64ZEB&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=XlDw6NXew-dGJm1CBaKCEg0N5s3LUqvT9lz7Hxht3VI&s=0pFK-FFTZe5kgr4h54pA-uINz2h_t8qyTAEnDNVVPNc&e=> (you will find the slides used by Petter and Phil to present all the proposed final recommendations and options during the webinar last week, as well as the most current version of the Options A, B and C document, under Background Documents. Please be sure to review these to familiarize yourself with the full details of the three options). Please note that this survey is not intended to be a formal vote, nor does it replace the mandatory consensus call that will take place on all the final recommendations prior to our submission of the Final Report to the GNSO Council. The co-chairs currently expect the Working Group to finalize all recommendations following community feedback at ICANN60. Please raise any questions or concerns you may have to this mailing list before the survey closes on Monday 23 October. Thanks and cheers Mary _______________________________________________ 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
Rather than unilaterally cancelling today's call, we should have kept up our hard work, as the latest emails show that more work is needed and desired. I'd like to note that Imran is now the 3rd person in this PDP working group who has openly asked for a document *neutrally* elaborating on the 3 options currently before us. I suppose you can now consider me the 4th. Paul Tattersfield was the first: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000867.html and Paul Keating concurred: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000868.html Instead, those who've not followed things closely are provided with a one-sided summary document prepared by proponents of Option C that directly attacks Options A and B, and doesn't show the advantages or disadvantages of all options neutrally. To me, that's inappropriate. I previously expressed concerns that this so-called "survey" was not transparent: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000870.html Option A has a very strong underlying principle, namely that ICANN's policies should not interfere with the legal rights of registrants and 3rd parties. That was the "bargain" that was made with the introduction of the UDRP itself, namely that while it was a procedure that was imposed upon registrants, it was always subject to de novo review using the courts. Given that the courts would always be able to have the "final word", to that extent it was not interfering with registrants or 3rd parties, since they could always go to the courts to ultimately adjudicate and decide the dispute on the merits. The "price" that complainants in a UDRP/URS paid to use the UDRP/URS procedure was the "mutual jurisdiction" clause, which permitted that final word to be had via the courts and thus protect registrants' inherent rights to due process and the protection of the national courts. In the scenario we've been long considering, it exposed a potential flaw in the UDRP/URS, an unexpected situation that was never contemplated by those who created the UDRP (indeed, it's never actually been experienced through an actual test in the courts, but our deep research of the topic exposed the unintended flaw). That flaw is the potential for an IGO to deny the de novo review to the registrant of the domain name by arguing successfully before a court that its "immunity" trumps the "mutual jurisdiction" clause that it agreed to when it filed the UDRP/URS. Option A directly corrects that situation, and *preserves* the status quo amongst all parties to the dispute, setting aside the UDRP/URS decision and forcing them instead to use existing *legal* mechanisms to solve the dispute. An IGO could go to the police, for example, to complain about alleged illegal use of a domain name. Or it could waive its claimed "immunity" and file a dispute in the courts. Or it could use one of the workarounds we identified in this PDP (i.e. filing a UDRP/URS using a licensee, assignee agent, etc. instead of filing it directly). In other words, IGOs have potential workarounds, but registrants do not. When Mary wrote: "In short, applying Option A when the court case is dismissed because the IGO succeeds in claiming immunity from the court’s jurisdiction will mean that the original UDRP or URS decision will not be enforced – so the domain will remain with the registrant and not transferred to the IGO or canceled. This will mean a different rule applies to IGOs in this specific situation, compared to other situations where the court case is between a registrant and a non-IGO – in these other situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced." That's missing the point completely, namely that Option A seeks to preserve the court's ability to *rule on the merits* of cases, rather than be forced to dismiss cases due to "immunity" (and thus be unable to hear the case on the merits). Option A seeks to ensure that a full de novo review can take place on the merits, which was the "price" for using the UDRP/URS in the first place. Looking deeper, why would any registrant ever AGREE to the imposition of the UDRP/URS, if they could not have their case heard on the merits in the courts afterwards? We know the long history of incorrect UDRP decisions, some quite outrageously flawed, and it's only the ability to go to court that ensures the integrity of the process, ensures that justice can take place (although injustices still take place, e.g. if a registrant can't afford court, or fails to act in time to file in court, perhaps because they didn't get proper notice of the UDRP/URS). Remove the ability to get to the correct decision via the courts, and the injustices that take place would get worse than they already are today, and go unchecked. Option C, on the other hand, seeks to replicate the courts by the creation of an arbitration option. This is meant to imitate the courts, but it's a poor facsimile. Most registrants would prefer the "real thing", rather than an arbitration that could share many of the same problems and deficiencies that exist with the UDRP procedure itself (for example, wildcard/rogue panelists, lack of multiple levels of appeal, etc.). If registrants or IGOs jointly wanted arbitration, they don't need ICANN to impose it upon them --- they always have the ability to choose voluntary arbitration or mediation regardless of whatever legal processes exist. But, Option C leaves that flawed procedure as the *only* path available, rather than the courts. This difference matters, as those who'd be appealing adverse UDRP or URS decisions would be registrants of the most valuable domain names (e.g. short acronyms, and/or single word domains). Some of these domain names are worth hundreds of thousands or millions of dollars, and are worth fighting for in court, despite the legal costs involved. Few would be investing the time and expense to fight in court over domains that are worth $100 or $5000. For these high value domains, the full protection of legal due process (i.e. the national courts) is vital. Some who promote arbitration as an acceptable alternative to the courts would likely not agree to that if their own rights were being threatened. e.g. how many trademark holders would agree to lose the ability to appeal to the courts if an IGO challenged one of their trademarks via the TTAB in the USA? I think the answer would be ZERO! They'd want the full protection of the courts, just as domain name registrants would want for domain name rights. And we know from the US State department letter to an IGO that no special procedure was created for IGOs (re: UNIFEM.com): https://www.state.gov/s/l/38648.htm They were told to go to the courts, just like anybody else. Why are proponents of Option C proposing something different? Domain name registrants are treated as second-class citizens, not worthy of the full legal protection accorded to others who have disputes over other matters. That needs to stop. The proponents of Option C "take as a given" that the UDRP/URS are "the law of the land", but then still ultimately *change* the procedure to provide the arbitration option! It's no longer "taken as a given", if it's ultimately being changed. i.e. the fact that Option C exists, and is changing the UDRP/URS is an acknowledgement that the UDRP/URS have that flaw (described above), i.e. the scenario not contemplated by the creators of the UDRP/URS. Proponents of Option C, then, take a very poor path, in my opinion, in that they acknowledge that the flaw exists, but seek to "correct it" by adding an additional flawed procedure *on top* of the already flawed UDRP/URS, a procedure that seeks to copy the courts, but not give full due process. Proponents of Option A, though, have a much cleaner and appropriate solution --- they seek to *directly eliminate* the flaw in the UDRP/URS, the root of the problem, by setting aside the UDRP/URS decision if that scenario was ever invoked by an IGO. By setting aside the UDRP/URS in that scenario, all parties are back to square one, and the UDRP/URS hasn't interfered with anyone's rights. The root of the problem goes away completely. The supremacy of the courts is thus assured. That supremacy of the courts could have also been promoted via a full incorporation of the previously proposed Option #6 into Option C, namely expressly requiring that "in rem" actions by registrants be accorded the same rights (in the eyes of a registrar) as an "in personam" action. In particular, an in rem action would require that the registrar *not* implement the UDRP/URS decision, just like it currently is forced to do under rule 4(k) of the UDRP for an in personam case [another flaw of the UDRP exposed, i.e. the creators of the UDRP never contemplated an in rem action, to avoid the issue of immunity entirely]. But, this Option #6 was never fully incorporated into Option C, since Option C was so rushed and is half-baked at this point. Now, Option B seeks a middle ground, namely applying Option A for domains created before a certain date (i.e. whenever the new policy is approved/implemented, after it gets through GNSO council, ICANN Board, implementation team, etc), and Option C for domains created on or after that date. In addition, it requires ongoing data collection and a mandatory review after a certain time period or after a certain number of arbitrations are heard, in order to ensure that there are no unintended consequences (violation of due process, or systematic bad decisions) from imposing Option C on some domains. That mandatory review aspect of Option B is important, as we know from past ICANN polices that broken procedures can take on a life of their own, and its hard to ever correct them. The UDRP will have been in effect more than 20+ years by the time its review is complete in the current RPM PDP (of which I and several others in this group are members), a review that was long resisted by many beneficiaries of the current broken policy. One might think that perhaps the "unintended scenario" or flaw that we've exposed in this PDP might be corrected within the RPM working group. While that's a possibility, I think it's unlikely, given the highly charged and political environment of that UDRP, where many are seeking to preserve a status quo that routinely harms the rights of domain name registrants. Thus, it's important that we get things right in *our* PDP, which has been deeply focused on these very issues (whereas they will be considered tangential in the other PDP). In conclusion, Option A is the best solution, because it takes on the flawed aspect of the UDRP/URS directly and eliminates it, rather than trying to cover it up with an untested procedure (arbitration, Option C) that *itself* is flawed. Option A ensures that the courts have supremacy, and that ICANN policies (the current UDRP/URS) don't take away rights from anyone.
From a "risk" analysis, Option A is also best, because IGOs have workarounds they can use (assignee, licensee, or agent options that we identified) to address their concerns about the immunity question, while domain name registrants have no such workarounds.
If you can't live with Option A, then Option B is next best, since it imposes the flawed Option C only upon newly created domain names, and leaves it to a future PDP to see how things turn out for them. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Oct 19, 2017 at 12:18 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear Imran,
Without highlighting the merits and disadvantages or arguing for or against any specific options, since it will not be appropriate for staff to do so, staff confirms that your conclusion about Option A correctly reflects the understanding of the Working Group.
In short, applying Option A when the court case is dismissed because the IGO succeeds in claiming immunity from the court’s jurisdiction will mean that the original UDRP or URS decision will not be enforced – so the domain will remain with the registrant and not transferred to the IGO or canceled. This will mean a different rule applies to IGOs in this specific situation, compared to other situations where the court case is between a registrant and a non-IGO – in these other situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced.
On your other question, please note that all the three options are independent of one another, so they cannot be combined in their current form. Thus, Option A and B cannot be read together as they are separate solutions.
The Working Group discussed the details and consequences of these options over various calls. There were actually more than three options under discussion, and what we now see as Options B and, especially, C went through significant discussion and (in the case of Option C) amendment. The Working Group also conducted an Impact Analysis of all the many options (you can see that Impact Analysis document here: https://community.icann.org/x/mwghB).
To gain a full understanding of all the many options and the various discussions over each of them, you would have to review the call recordings or transcripts from August and September. However, if you need a clear summary of what the final three options (A, B and C) are, you can review the materials that we sent out with the poll, i.e. the slides used for last week’s webinar and the final version of the Options Document: https://community.icann.org/x/64ZEB.
I hope this is helpful. The chairs and other Working Group members may wish to add their own comments.
Thanks and cheers
Mary
From: Imran Ahmed Shah <ias_pk@yahoo.com> Reply-To: Imran Ahmed Shah <ias_pk@yahoo.com> Date: Thursday, October 19, 2017 at 10:32 To: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: Imran Ahmed Shah <imran@uisoc.org> Subject: [Ext] Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Dear Mary Wong, and Dear All WG Members,
Thanks for the Survey and obtaining the opinion of all WG Members.
While responding to the Survey, I found that the question asked in the survey is not very much clear, especially when I read the phrase of Option A alone or Option A & Option B together.
However, Option C is well elaborated and reader can understand that what is being asked by him. May I ask to update the questions for ‘Option A’ and ‘Option B’ with some additional detail?
Secondly, in Option A, the final statement “….the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated (i.e. set aside.)”, needs to be elaborated further.
After consulting it further I reach on the following understanding:
Explaining that which of the UDRP decision will be set aside/erased/not given force?
Through a consultation, I learned that, this is the result of a success (of IGO) would be to set aside, which was the original UDRP decision.
And this reversal would permit the cybersquatting found by the panel to persist.
“The current rule is that if a registrant files a judicial appeal and the court case is subsequently dismissed for any reason, then the stay on enforcement for the original UDRP decision is lifted and the domain is transferred or extinguished. Option A would reverse that rule solely for IGOs.”
May I ask the Option A proponents to explain it further (if the above explanation is not sufficient), for my understanding and for other members of the WG?
Thanking you and Best Regards
Imran Ahmed Shah
________________________________
From: Mary Wong <mary.wong@icann.org> To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Sent: Tuesday, 17 October 2017, 1:39 Subject: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Dear Working Group members,
At the direction of the co-chairs and with their approval, staff has prepared the following survey that we are asking all members to fill out by 1800 UTC on Monday 23 October. The purpose of the survey is to enable Phil and Petter to determine the level of preliminary consensus amongst all members for each of the three options under discussion, relating to the situation where a respondent has filed court proceedings against an IGO and the IGO has successfully claimed immunity in that court. As our open community session at ICANN60 will be devoted to a presentation and discussion of all our proposed final recommendations, it is important for Phil and Petter to know which option is the most preferred at this stage.
Link to survey: https://www.surveymonkey.com/r/VCP8VKD[surveymonkey.com]
Link to background materials: https://community.icann.org/x/64ZEB[community.icann.org] (you will find the slides used by Petter and Phil to present all the proposed final recommendations and options during the webinar last week, as well as the most current version of the Options A, B and C document, under Background Documents. Please be sure to review these to familiarize yourself with the full details of the three options).
Please note that this survey is not intended to be a formal vote, nor does it replace the mandatory consensus call that will take place on all the final recommendations prior to our submission of the Final Report to the GNSO Council. The co-chairs currently expect the Working Group to finalize all recommendations following community feedback at ICANN60.
Please raise any questions or concerns you may have to this mailing list before the survey closes on Monday 23 October.
Thanks and cheers
Mary
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_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
George: I am not going to even begin to attempt a point-by-point response to your extremely long message. Rather, I will state the following: · The Options document was developed by members of the working group over multiple WG calls and there was no strong dissent to its content, much less a charge that it was a “a one-sided summary document prepared by proponents of Option C that directly attacks Options A and B, and doesn't show the advantages or disadvantages of all options neutrally”. · The Options document is a summary of the contents and effect of the Options, not a brief for or against any of them. I completely reject your allegation that it attacks Options A and B; rather, it simply and accurately states what they are. · Notwithstanding the now allegedly biased nature of the Options document, you had no problem immediately completing the survey and sharing your vigorous advocacy for Options A and B on the same day the survey began. (Likewise, in response I shared my personal view, based in large part upon three years of service on GNSO Council, as well as participation in the Board/GAC/GNSO discussions on IGO issues, that those Options had little or no chance of being approved by Council and were inconsistent with the bedrock principles that have guided our work.) · I note that Imran’s email states “Option C is well elaborated and reader can understand that what is being asked by him. May I ask to update the questions for ‘Option A’ and ‘Option B’ with some additional detail?” While I don’t believe that Option A requires the same amount of detail as Option C, Imran now has the benefit of your further explanation below, in addition to your advocacy statement of Monday, and can make a decision accordingly. As for WG members who have been unable to participate in calls due to schedule conflicts, we cannot postpone our final work indefinitely until their calendars clear. And every member has full access to the email list, mp3 recordings, and meeting transcripts to keep up with the discussion and inform themselves. This WG has been going forward for more than three years and needs to be brought to a conclusion. The co-chairs require some preliminary indication of where the consensus lies within the WG for the three Options for purposes of reporting our status to GNSO Council and the full ICANN community at the upcoming ICANN 60 meeting. The survey we are presently conducting is not a consensus call on a Final Report – that will occur after ICANN 60, and any WG member unhappy with any part of that Report will have full opportunity to file a minority statement. Finally, If a majority of the members of this WG believe that the co-chairs are managing it in an inadequate or biased manner, and are in any way suppressing members’ viewpoints or relevant facts, I for one will be happy to step aside and let them select a replacement to handle the task of completing our work and gaining approval of the final product by the GNSO Council. Philip 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 -----Original Message----- From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Thursday, October 19, 2017 6:13 PM To: gnso-igo-ingo-crp@icann.org Cc: Imran Ahmed Shah Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C Rather than unilaterally cancelling today's call, we should have kept up our hard work, as the latest emails show that more work is needed and desired. I'd like to note that Imran is now the 3rd person in this PDP working group who has openly asked for a document *neutrally* elaborating on the 3 options currently before us. I suppose you can now consider me the 4th. Paul Tattersfield was the first: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000867.html and Paul Keating concurred: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000868.html Instead, those who've not followed things closely are provided with a one-sided summary document prepared by proponents of Option C that directly attacks Options A and B, and doesn't show the advantages or disadvantages of all options neutrally. To me, that's inappropriate. I previously expressed concerns that this so-called "survey" was not transparent: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000870.html Option A has a very strong underlying principle, namely that ICANN's policies should not interfere with the legal rights of registrants and 3rd parties. That was the "bargain" that was made with the introduction of the UDRP itself, namely that while it was a procedure that was imposed upon registrants, it was always subject to de novo review using the courts. Given that the courts would always be able to have the "final word", to that extent it was not interfering with registrants or 3rd parties, since they could always go to the courts to ultimately adjudicate and decide the dispute on the merits. The "price" that complainants in a UDRP/URS paid to use the UDRP/URS procedure was the "mutual jurisdiction" clause, which permitted that final word to be had via the courts and thus protect registrants' inherent rights to due process and the protection of the national courts. In the scenario we've been long considering, it exposed a potential flaw in the UDRP/URS, an unexpected situation that was never contemplated by those who created the UDRP (indeed, it's never actually been experienced through an actual test in the courts, but our deep research of the topic exposed the unintended flaw). That flaw is the potential for an IGO to deny the de novo review to the registrant of the domain name by arguing successfully before a court that its "immunity" trumps the "mutual jurisdiction" clause that it agreed to when it filed the UDRP/URS. Option A directly corrects that situation, and *preserves* the status quo amongst all parties to the dispute, setting aside the UDRP/URS decision and forcing them instead to use existing *legal* mechanisms to solve the dispute. An IGO could go to the police, for example, to complain about alleged illegal use of a domain name. Or it could waive its claimed "immunity" and file a dispute in the courts. Or it could use one of the workarounds we identified in this PDP (i.e. filing a UDRP/URS using a licensee, assignee agent, etc. instead of filing it directly). In other words, IGOs have potential workarounds, but registrants do not. When Mary wrote: "In short, applying Option A when the court case is dismissed because the IGO succeeds in claiming immunity from the court’s jurisdiction will mean that the original UDRP or URS decision will not be enforced – so the domain will remain with the registrant and not transferred to the IGO or canceled. This will mean a different rule applies to IGOs in this specific situation, compared to other situations where the court case is between a registrant and a non-IGO – in these other situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced." That's missing the point completely, namely that Option A seeks to preserve the court's ability to *rule on the merits* of cases, rather than be forced to dismiss cases due to "immunity" (and thus be unable to hear the case on the merits). Option A seeks to ensure that a full de novo review can take place on the merits, which was the "price" for using the UDRP/URS in the first place. Looking deeper, why would any registrant ever AGREE to the imposition of the UDRP/URS, if they could not have their case heard on the merits in the courts afterwards? We know the long history of incorrect UDRP decisions, some quite outrageously flawed, and it's only the ability to go to court that ensures the integrity of the process, ensures that justice can take place (although injustices still take place, e.g. if a registrant can't afford court, or fails to act in time to file in court, perhaps because they didn't get proper notice of the UDRP/URS). Remove the ability to get to the correct decision via the courts, and the injustices that take place would get worse than they already are today, and go unchecked. Option C, on the other hand, seeks to replicate the courts by the creation of an arbitration option. This is meant to imitate the courts, but it's a poor facsimile. Most registrants would prefer the "real thing", rather than an arbitration that could share many of the same problems and deficiencies that exist with the UDRP procedure itself (for example, wildcard/rogue panelists, lack of multiple levels of appeal, etc.). If registrants or IGOs jointly wanted arbitration, they don't need ICANN to impose it upon them --- they always have the ability to choose voluntary arbitration or mediation regardless of whatever legal processes exist. But, Option C leaves that flawed procedure as the *only* path available, rather than the courts. This difference matters, as those who'd be appealing adverse UDRP or URS decisions would be registrants of the most valuable domain names (e.g. short acronyms, and/or single word domains). Some of these domain names are worth hundreds of thousands or millions of dollars, and are worth fighting for in court, despite the legal costs involved. Few would be investing the time and expense to fight in court over domains that are worth $100 or $5000. For these high value domains, the full protection of legal due process (i.e. the national courts) is vital. Some who promote arbitration as an acceptable alternative to the courts would likely not agree to that if their own rights were being threatened. e.g. how many trademark holders would agree to lose the ability to appeal to the courts if an IGO challenged one of their trademarks via the TTAB in the USA? I think the answer would be ZERO! They'd want the full protection of the courts, just as domain name registrants would want for domain name rights. And we know from the US State department letter to an IGO that no special procedure was created for IGOs (re: UNIFEM.com): https://www.state.gov/s/l/38648.htm They were told to go to the courts, just like anybody else. Why are proponents of Option C proposing something different? Domain name registrants are treated as second-class citizens, not worthy of the full legal protection accorded to others who have disputes over other matters. That needs to stop. The proponents of Option C "take as a given" that the UDRP/URS are "the law of the land", but then still ultimately *change* the procedure to provide the arbitration option! It's no longer "taken as a given", if it's ultimately being changed. i.e. the fact that Option C exists, and is changing the UDRP/URS is an acknowledgement that the UDRP/URS have that flaw (described above), i.e. the scenario not contemplated by the creators of the UDRP/URS. Proponents of Option C, then, take a very poor path, in my opinion, in that they acknowledge that the flaw exists, but seek to "correct it" by adding an additional flawed procedure *on top* of the already flawed UDRP/URS, a procedure that seeks to copy the courts, but not give full due process. Proponents of Option A, though, have a much cleaner and appropriate solution --- they seek to *directly eliminate* the flaw in the UDRP/URS, the root of the problem, by setting aside the UDRP/URS decision if that scenario was ever invoked by an IGO. By setting aside the UDRP/URS in that scenario, all parties are back to square one, and the UDRP/URS hasn't interfered with anyone's rights. The root of the problem goes away completely. The supremacy of the courts is thus assured. That supremacy of the courts could have also been promoted via a full incorporation of the previously proposed Option #6 into Option C, namely expressly requiring that "in rem" actions by registrants be accorded the same rights (in the eyes of a registrar) as an "in personam" action. In particular, an in rem action would require that the registrar *not* implement the UDRP/URS decision, just like it currently is forced to do under rule 4(k) of the UDRP for an in personam case [another flaw of the UDRP exposed, i.e. the creators of the UDRP never contemplated an in rem action, to avoid the issue of immunity entirely]. But, this Option #6 was never fully incorporated into Option C, since Option C was so rushed and is half-baked at this point. Now, Option B seeks a middle ground, namely applying Option A for domains created before a certain date (i.e. whenever the new policy is approved/implemented, after it gets through GNSO council, ICANN Board, implementation team, etc), and Option C for domains created on or after that date. In addition, it requires ongoing data collection and a mandatory review after a certain time period or after a certain number of arbitrations are heard, in order to ensure that there are no unintended consequences (violation of due process, or systematic bad decisions) from imposing Option C on some domains. That mandatory review aspect of Option B is important, as we know from past ICANN polices that broken procedures can take on a life of their own, and its hard to ever correct them. The UDRP will have been in effect more than 20+ years by the time its review is complete in the current RPM PDP (of which I and several others in this group are members), a review that was long resisted by many beneficiaries of the current broken policy. One might think that perhaps the "unintended scenario" or flaw that we've exposed in this PDP might be corrected within the RPM working group. While that's a possibility, I think it's unlikely, given the highly charged and political environment of that UDRP, where many are seeking to preserve a status quo that routinely harms the rights of domain name registrants. Thus, it's important that we get things right in *our* PDP, which has been deeply focused on these very issues (whereas they will be considered tangential in the other PDP). In conclusion, Option A is the best solution, because it takes on the flawed aspect of the UDRP/URS directly and eliminates it, rather than trying to cover it up with an untested procedure (arbitration, Option C) that *itself* is flawed. Option A ensures that the courts have supremacy, and that ICANN policies (the current UDRP/URS) don't take away rights from anyone. From a "risk" analysis, Option A is also best, because IGOs have workarounds they can use (assignee, licensee, or agent options that we identified) to address their concerns about the immunity question, while domain name registrants have no such workarounds. If you can't live with Option A, then Option B is next best, since it imposes the flawed Option C only upon newly created domain names, and leaves it to a future PDP to see how things turn out for them. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Oct 19, 2017 at 12:18 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote:
Dear Imran,
Without highlighting the merits and disadvantages or arguing for or
against any specific options, since it will not be appropriate for
staff to do so, staff confirms that your conclusion about Option A
correctly reflects the understanding of the Working Group.
In short, applying Option A when the court case is dismissed because
the IGO succeeds in claiming immunity from the court’s jurisdiction
will mean that the original UDRP or URS decision will not be enforced
– so the domain will remain with the registrant and not transferred to
the IGO or canceled. This will mean a different rule applies to IGOs
in this specific situation, compared to other situations where the
court case is between a registrant and a non-IGO – in these other
situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced.
On your other question, please note that all the three options are
independent of one another, so they cannot be combined in their
current form. Thus, Option A and B cannot be read together as they are
separate solutions.
The Working Group discussed the details and consequences of these
options over various calls. There were actually more than three
options under discussion, and what we now see as Options B and,
especially, C went through significant discussion and (in the case of
Option C) amendment. The Working Group also conducted an Impact
Analysis of all the many options (you can see that Impact Analysis document here: https://community.icann.org/x/mwghB).
To gain a full understanding of all the many options and the various
discussions over each of them, you would have to review the call
recordings or transcripts from August and September. However, if you
need a clear summary of what the final three options (A, B and C) are,
you can review the materials that we sent out with the poll, i.e. the
slides used for last week’s webinar and the final version of the Options Document:
I hope this is helpful. The chairs and other Working Group members may
wish to add their own comments.
Thanks and cheers
Mary
From: Imran Ahmed Shah <ias_pk@yahoo.com<mailto:ias_pk@yahoo.com>>
Reply-To: Imran Ahmed Shah <ias_pk@yahoo.com<mailto:ias_pk@yahoo.com>>
Date: Thursday, October 19, 2017 at 10:32
To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>"
<gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>>
Cc: Imran Ahmed Shah <imran@uisoc.org<mailto:imran@uisoc.org>>
Subject: [Ext] Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to
detect consensus on Options A, B or C
Dear Mary Wong, and Dear All WG Members,
Thanks for the Survey and obtaining the opinion of all WG Members.
While responding to the Survey, I found that the question asked in the
survey is not very much clear, especially when I read the phrase of
Option A alone or Option A & Option B together.
However, Option C is well elaborated and reader can understand that
what is being asked by him. May I ask to update the questions for
‘Option A’ and ‘Option B’ with some additional detail?
Secondly, in Option A, the final statement “….the decision rendered
against the registrant in the predecessor UDRP or URS shall be
vitiated (i.e. set aside.)”, needs to be elaborated further.
After consulting it further I reach on the following understanding:
Explaining that which of the UDRP decision will be set
aside/erased/not given force?
Through a consultation, I learned that, this is the result of a
success (of
IGO) would be to set aside, which was the original UDRP decision.
And this reversal would permit the cybersquatting found by the panel
to persist.
“The current rule is that if a registrant files a judicial appeal and
the court case is subsequently dismissed for any reason, then the stay
on enforcement for the original UDRP decision is lifted and the domain
is transferred or extinguished. Option A would reverse that rule
solely for IGOs.”
May I ask the Option A proponents to explain it further (if the above
explanation is not sufficient), for my understanding and for other
members of the WG?
Thanking you and Best Regards
Imran Ahmed Shah
________________________________
From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>
To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>>
Sent: Tuesday, 17 October 2017, 1:39
Subject: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect
consensus on Options A, B or C
Dear Working Group members,
At the direction of the co-chairs and with their approval, staff has
prepared the following survey that we are asking all members to fill
out by
1800 UTC on Monday 23 October. The purpose of the survey is to enable
Phil and Petter to determine the level of preliminary consensus
amongst all members for each of the three options under discussion,
relating to the situation where a respondent has filed court
proceedings against an IGO and the IGO has successfully claimed
immunity in that court. As our open community session at ICANN60 will
be devoted to a presentation and discussion of all our proposed final
recommendations, it is important for Phil and Petter to know which option is the most preferred at this stage.
Link to survey:
Link to background materials:
find the slides used by Petter and Phil to present all the proposed
final recommendations and options during the webinar last week, as
well as the most current version of the Options A, B and C document,
under Background Documents. Please be sure to review these to
familiarize yourself with the full details of the three options).
Please note that this survey is not intended to be a formal vote, nor
does it replace the mandatory consensus call that will take place on
all the final recommendations prior to our submission of the Final
Report to the GNSO Council. The co-chairs currently expect the Working
Group to finalize all recommendations following community feedback at ICANN60.
Please raise any questions or concerns you may have to this mailing
list before the survey closes on Monday 23 October.
Thanks and cheers
Mary
_______________________________________________
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>
_______________________________________________ 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
Hi folks, On Thu, Oct 19, 2017 at 7:29 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
· The Options document was developed by members of the working group over multiple WG calls and there was no strong dissent to its content, much less a charge that it was a “a one-sided summary document prepared by proponents of Option C that directly attacks Options A and B, and doesn't show the advantages or disadvantages of all options neutrally”.
That's not correct. See the post and PDF from September 26, 2017: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000847.html The PDF repeatedly uses the phrase "the Co-Chairs" in many of the paragraphs of the PDF, attacking Options A and B. I dissented to the content at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html The document was later updated at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000852.html still stating the "co-chairs" positions on various topics. I dissented to that document too: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000853.html as did Paul Tattersfield: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000855.html The document was amended one more time: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000857.html once again, always referencing only the "co-chairs" views, who are proponents of Option C. How can one honestly portray that as a document that was neutral? Then the "background documents" linked to with the survey: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html contains that same document, dated October 12, 2017: https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO... https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO... once again putting forth the "co-chairs" views front and center.
· The Options document is a summary of the contents and effect of the Options, not a brief for or against any of them. I completely reject your allegation that it attacks Options A and B; rather, it simply and accurately states what they are.
That's not a credible statement. Did you actually read the document that you wrote? It's a direct attack against options A and B in the "preliminary notes" section of the document, and then later presents all three options. Are you now disavowing what you wrote?
· Notwithstanding the now allegedly biased nature of the Options document, you had no problem immediately completing the survey and sharing your vigorous advocacy for Options A and B on the same day the survey began. (Likewise, in response I shared my personal view, based in large part upon three years of service on GNSO Council, as well as participation in the Board/GAC/GNSO discussions on IGO issues, that those Options had little or no chance of being approved by Council and were inconsistent with the bedrock principles that have guided our work.)
Yes, I believe all responses should be public and transparent, especially given this is an ongoing debate, and minds should still be open to be changed. Unlike your "personal views" that are reflected in the Options document itself, those of others who actually prefer other options are not in the options document. Furthermore, the "secret survey" that is being kept confidential is still being shared with the co-chairs, presumably (since it's being used to inform their future statements at the next ICANN meeting). The Co-chairs are supposed to have only an *administrative* role, e.g. arranging meeting times, and other grunt work of that nature. By getting preferential access to the survey results, available to no other PDP members, the co-chairs are then permitted to do their own advocacy to those members without a level playing field. The co-chairs should have no "information advantage" compared with other members due to their purely administrative role.
· I note that Imran’s email states “Option C is well elaborated and reader can understand that what is being asked by him. May I ask to update the questions for ‘Option A’ and ‘Option B’ with some additional detail?” While I don’t believe that Option A requires the same amount of detail as Option C, Imran now has the benefit of your further explanation below, in addition to your advocacy statement of Monday, and can make a decision accordingly.
That assumes Imran (and/or others) hadn't already filled out the survey by the time I posted, or that no other member of the PDP who already submitted the survey had an opportunity to read all the arguments, instead of the one-sided positions put forth by the co-chairs.
As for WG members who have been unable to participate in calls due to schedule conflicts, we cannot postpone our final work indefinitely until their calendars clear. And every member has full access to the email list, mp3 recordings, and meeting transcripts to keep up with the discussion and inform themselves.
Perhaps a fresh Doodle poll should be conducted, to attempt to accommodate those (like Paul Keating) who've had persistent conflicts with the current Thursday time slot. That time slot was created ages ago, and might not accurately reflect availability of those who still need to understand all the arguments and ask questions in real-time. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
George: The survey that WG members are being asked to respond to is neutral and descriptive and never once mentions the co-chairs or their views. I mistakenly referred to it as the Options document in my prior email when I was thinking of the actual survey that members were asked to respond to. In light of that honest error, I have just again reviewed the " REMAINING OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the majority of its language is likewise neutral and descriptive, with the exception of the language reproduced below. This language states the informed view of the co-chairs. I believe we would have been remiss not to share our concerns with WG members. Nonetheless, the co-chairs have permitted proponents of Option A and B and detractors of Option C – most especially you -- to vigorously and repeatedly state their own views, and have never attempted to suppress any such expression. We have included all remaining options in the survey for members to choose among. Any WG member who has been paying even a modicum of attention to the discussions of the past few weeks should be completely familiar with the pro and con arguments for all three options and capable of making an informed decision. Hence I reject any suggestion that we have operated this WG in a manner that has not accorded every member his or her full rights and allowed all points of view to be expressed. The co-chairs are responsible for administering this WG in an efficient and fair manner and I believe we have fulfilled that responsibility. But the co-chairs have not taken a vow of silence that precludes us from sharing our personal views with the members of the WG, especially when they concur that a particular outcome could jeopardize our entire work product. Finally, there is no secret survey. We will share the results of it with WG members as soon as it closes, just as we shall share them in Abu Dhabi. Now here is the language in the Options document expressing the joint views of the co-chairs. Again, if a majority of the members of this WG believe that its inclusion, in the context of all the other statements that have been made regarding the three options in the course of WG discussions and email traffic, violated our duties as co-chairs then I for one will be happy to step aside and let others complete this task. Philip The co-chairs note that they have retained Option A (known previously as Option 1) for discussion because it is an option that several Working Group members have supported. However, the co-chairs wish to reiterate that in their view Option A is an inappropriate departure from our prior decision that ICANN should avoid taking any position that seeks to limit the legal rights or prejudge the outcome of any judicial proceeding, and is subject to strong criticism as it would vitiate a prior UDRP finding of cybersquatting by a domain registrant upon an IGO’s successful assertion of an immunity defense (The Co-Chairs recognize that although there may be examples where UDRP panels have reached incorrect decisions, that the best means to address such error is through judicial appeal, or appeal via arbitration as proposed in Option C). The Co-chairs further observe that Option A would leave IGOs in a worse position than they would be under the status quo (successful assertion of judicial immunity would remove the stay on enforcement of the prior UDRP decision), and as this would leave the IGO with no further available remedy, under these mechanisms, against the alleged cybersquatting, it is highly unlikely to be approved by the GNSO Council or the ICANN Board, especially as this PDP was chartered to evaluate whether and how access to the UDRP and URS could be improved for IGOs and INGOs. The Co-Chairs further believe that Option B is unlikely to secure Council or Board approval because it incorporates Option A for grandfathered domains, and clearly establishes the new arbitration option solely for domains registered after its implementation date. 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 -----Original Message----- From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Thursday, October 19, 2017 8:10 PM To: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C Hi folks, On Thu, Oct 19, 2017 at 7:29 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote:
· The Options document was developed by members of the working group
over multiple WG calls and there was no strong dissent to its content,
much less a charge that it was a “a one-sided summary document
prepared by proponents of Option C that directly attacks Options A and
B, and doesn't show the advantages or disadvantages of all options neutrally”.
That's not correct. See the post and PDF from September 26, 2017: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000847.html The PDF repeatedly uses the phrase "the Co-Chairs" in many of the paragraphs of the PDF, attacking Options A and B. I dissented to the content at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html The document was later updated at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000852.html still stating the "co-chairs" positions on various topics. I dissented to that document too: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000853.html as did Paul Tattersfield: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000855.html The document was amended one more time: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000857.html once again, always referencing only the "co-chairs" views, who are proponents of Option C. How can one honestly portray that as a document that was neutral? Then the "background documents" linked to with the survey: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html contains that same document, dated October 12, 2017: https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO... https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO... once again putting forth the "co-chairs" views front and center.
· The Options document is a summary of the contents and effect of
the Options, not a brief for or against any of them. I completely
reject your allegation that it attacks Options A and B; rather, it
simply and accurately states what they are.
That's not a credible statement. Did you actually read the document that you wrote? It's a direct attack against options A and B in the "preliminary notes" section of the document, and then later presents all three options. Are you now disavowing what you wrote?
· Notwithstanding the now allegedly biased nature of the Options
document, you had no problem immediately completing the survey and
sharing your vigorous advocacy for Options A and B on the same day the survey began.
(Likewise, in response I shared my personal view, based in large part
upon three years of service on GNSO Council, as well as participation
in the Board/GAC/GNSO discussions on IGO issues, that those Options
had little or no chance of being approved by Council and were
inconsistent with the bedrock principles that have guided our work.)
Yes, I believe all responses should be public and transparent, especially given this is an ongoing debate, and minds should still be open to be changed. Unlike your "personal views" that are reflected in the Options document itself, those of others who actually prefer other options are not in the options document. Furthermore, the "secret survey" that is being kept confidential is still being shared with the co-chairs, presumably (since it's being used to inform their future statements at the next ICANN meeting). The Co-chairs are supposed to have only an *administrative* role, e.g. arranging meeting times, and other grunt work of that nature. By getting preferential access to the survey results, available to no other PDP members, the co-chairs are then permitted to do their own advocacy to those members without a level playing field. The co-chairs should have no "information advantage" compared with other members due to their purely administrative role.
· I note that Imran’s email states “Option C is well elaborated and
reader can understand that what is being asked by him. May I ask to
update the questions for ‘Option A’ and ‘Option B’ with some additional detail?”
While I don’t believe that Option A requires the same amount of detail
as Option C, Imran now has the benefit of your further explanation
below, in addition to your advocacy statement of Monday, and can make
a decision accordingly.
That assumes Imran (and/or others) hadn't already filled out the survey by the time I posted, or that no other member of the PDP who already submitted the survey had an opportunity to read all the arguments, instead of the one-sided positions put forth by the co-chairs.
As for WG members who have been unable to participate in calls due to
schedule conflicts, we cannot postpone our final work indefinitely
until their calendars clear. And every member has full access to the
email list,
mp3 recordings, and meeting transcripts to keep up with the discussion
and inform themselves.
Perhaps a fresh Doodle poll should be conducted, to attempt to accommodate those (like Paul Keating) who've had persistent conflicts with the current Thursday time slot. That time slot was created ages ago, and might not accurately reflect availability of those who still need to understand all the arguments and ask questions in real-time. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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
PS-- I believe that any WG Member who wishes to change his/her initial survey response based on the email discussion of the past few days, or for any other reason, can do so up to the time it closes on Monday. Staff can confirm that. But if I am mistaken, then I would suggest that any member so disposed contact Mary so that she and her colleagues can vitiate the initial response and allow for a new response to be entered. 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 Sent from my iPad On Oct 19, 2017, at 8:51 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: George: The survey that WG members are being asked to respond to is neutral and descriptive and never once mentions the co-chairs or their views. I mistakenly referred to it as the Options document in my prior email when I was thinking of the actual survey that members were asked to respond to. In light of that honest error, I have just again reviewed the " REMAINING OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the majority of its language is likewise neutral and descriptive, with the exception of the language reproduced below. This language states the informed view of the co-chairs. I believe we would have been remiss not to share our concerns with WG members. Nonetheless, the co-chairs have permitted proponents of Option A and B and detractors of Option C – most especially you -- to vigorously and repeatedly state their own views, and have never attempted to suppress any such expression. We have included all remaining options in the survey for members to choose among. Any WG member who has been paying even a modicum of attention to the discussions of the past few weeks should be completely familiar with the pro and con arguments for all three options and capable of making an informed decision. Hence I reject any suggestion that we have operated this WG in a manner that has not accorded every member his or her full rights and allowed all points of view to be expressed. The co-chairs are responsible for administering this WG in an efficient and fair manner and I believe we have fulfilled that responsibility. But the co-chairs have not taken a vow of silence that precludes us from sharing our personal views with the members of the WG, especially when they concur that a particular outcome could jeopardize our entire work product. Finally, there is no secret survey. We will share the results of it with WG members as soon as it closes, just as we shall share them in Abu Dhabi. Now here is the language in the Options document expressing the joint views of the co-chairs. Again, if a majority of the members of this WG believe that its inclusion, in the context of all the other statements that have been made regarding the three options in the course of WG discussions and email traffic, violated our duties as co-chairs then I for one will be happy to step aside and let others complete this task. Philip The co-chairs note that they have retained Option A (known previously as Option 1) for discussion because it is an option that several Working Group members have supported. However, the co-chairs wish to reiterate that in their view Option A is an inappropriate departure from our prior decision that ICANN should avoid taking any position that seeks to limit the legal rights or prejudge the outcome of any judicial proceeding, and is subject to strong criticism as it would vitiate a prior UDRP finding of cybersquatting by a domain registrant upon an IGO’s successful assertion of an immunity defense (The Co-Chairs recognize that although there may be examples where UDRP panels have reached incorrect decisions, that the best means to address such error is through judicial appeal, or appeal via arbitration as proposed in Option C). The Co-chairs further observe that Option A would leave IGOs in a worse position than they would be under the status quo (successful assertion of judicial immunity would remove the stay on enforcement of the prior UDRP decision), and as this would leave the IGO with no further available remedy, under these mechanisms, against the alleged cybersquatting, it is highly unlikely to be approved by the GNSO Council or the ICANN Board, especially as this PDP was chartered to evaluate whether and how access to the UDRP and URS could be improved for IGOs and INGOs. The Co-Chairs further believe that Option B is unlikely to secure Council or Board approval because it incorporates Option A for grandfathered domains, and clearly establishes the new arbitration option solely for domains registered after its implementation date. 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 -----Original Message----- From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Thursday, October 19, 2017 8:10 PM To: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C Hi folks, On Thu, Oct 19, 2017 at 7:29 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote:
· The Options document was developed by members of the working group
over multiple WG calls and there was no strong dissent to its content,
much less a charge that it was a “a one-sided summary document
prepared by proponents of Option C that directly attacks Options A and
B, and doesn't show the advantages or disadvantages of all options neutrally”.
That's not correct. See the post and PDF from September 26, 2017: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000847.html The PDF repeatedly uses the phrase "the Co-Chairs" in many of the paragraphs of the PDF, attacking Options A and B. I dissented to the content at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html The document was later updated at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000852.html still stating the "co-chairs" positions on various topics. I dissented to that document too: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000853.html as did Paul Tattersfield: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000855.html The document was amended one more time: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000857.html once again, always referencing only the "co-chairs" views, who are proponents of Option C. How can one honestly portray that as a document that was neutral? Then the "background documents" linked to with the survey: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html contains that same document, dated October 12, 2017: https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO... https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO... once again putting forth the "co-chairs" views front and center.
· The Options document is a summary of the contents and effect of
the Options, not a brief for or against any of them. I completely
reject your allegation that it attacks Options A and B; rather, it
simply and accurately states what they are.
That's not a credible statement. Did you actually read the document that you wrote? It's a direct attack against options A and B in the "preliminary notes" section of the document, and then later presents all three options. Are you now disavowing what you wrote?
· Notwithstanding the now allegedly biased nature of the Options
document, you had no problem immediately completing the survey and
sharing your vigorous advocacy for Options A and B on the same day the survey began.
(Likewise, in response I shared my personal view, based in large part
upon three years of service on GNSO Council, as well as participation
in the Board/GAC/GNSO discussions on IGO issues, that those Options
had little or no chance of being approved by Council and were
inconsistent with the bedrock principles that have guided our work.)
Yes, I believe all responses should be public and transparent, especially given this is an ongoing debate, and minds should still be open to be changed. Unlike your "personal views" that are reflected in the Options document itself, those of others who actually prefer other options are not in the options document. Furthermore, the "secret survey" that is being kept confidential is still being shared with the co-chairs, presumably (since it's being used to inform their future statements at the next ICANN meeting). The Co-chairs are supposed to have only an *administrative* role, e.g. arranging meeting times, and other grunt work of that nature. By getting preferential access to the survey results, available to no other PDP members, the co-chairs are then permitted to do their own advocacy to those members without a level playing field. The co-chairs should have no "information advantage" compared with other members due to their purely administrative role.
· I note that Imran’s email states “Option C is well elaborated and
reader can understand that what is being asked by him. May I ask to
update the questions for ‘Option A’ and ‘Option B’ with some additional detail?”
While I don’t believe that Option A requires the same amount of detail
as Option C, Imran now has the benefit of your further explanation
below, in addition to your advocacy statement of Monday, and can make
a decision accordingly.
That assumes Imran (and/or others) hadn't already filled out the survey by the time I posted, or that no other member of the PDP who already submitted the survey had an opportunity to read all the arguments, instead of the one-sided positions put forth by the co-chairs.
As for WG members who have been unable to participate in calls due to
schedule conflicts, we cannot postpone our final work indefinitely
until their calendars clear. And every member has full access to the
email list,
mp3 recordings, and meeting transcripts to keep up with the discussion
and inform themselves.
Perhaps a fresh Doodle poll should be conducted, to attempt to accommodate those (like Paul Keating) who've had persistent conflicts with the current Thursday time slot. That time slot was created ages ago, and might not accurately reflect availability of those who still need to understand all the arguments and ask questions in real-time. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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 _______________________________________________ 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
Hello Phil and everyone – the poll is currently set up such that you can only submit one response; however, you may go back and edit your response up to the time when the survey closes. Please let me know if you’d like those settings changed. Note also that we ask all respondents to provide their name as part of the survey, and it is a survey administered by staff so the co-chairs do not have access to the results or administrator rights. This methodology, and the use of Survey Monkey polls, is also how other GNSO PDP Working Groups have been conducting their polls which, in some cases, is done on a fairly regular basis. Thanks and cheers Mary From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Phil Corwin <psc@vlaw-dc.com> Date: Thursday, October 19, 2017 at 21:50 To: George Kirikos <icann@leap.com>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C PS-- I believe that any WG Member who wishes to change his/her initial survey response based on the email discussion of the past few days, or for any other reason, can do so up to the time it closes on Monday. Staff can confirm that. But if I am mistaken, then I would suggest that any member so disposed contact Mary so that she and her colleagues can vitiate the initial response and allow for a new response to be entered. 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 Sent from my iPad On Oct 19, 2017, at 8:51 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: George: The survey that WG members are being asked to respond to is neutral and descriptive and never once mentions the co-chairs or their views. I mistakenly referred to it as the Options document in my prior email when I was thinking of the actual survey that members were asked to respond to. In light of that honest error, I have just again reviewed the " REMAINING OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the majority of its language is likewise neutral and descriptive, with the exception of the language reproduced below. This language states the informed view of the co-chairs. I believe we would have been remiss not to share our concerns with WG members. Nonetheless, the co-chairs have permitted proponents of Option A and B and detractors of Option C – most especially you -- to vigorously and repeatedly state their own views, and have never attempted to suppress any such expression. We have included all remaining options in the survey for members to choose among. Any WG member who has been paying even a modicum of attention to the discussions of the past few weeks should be completely familiar with the pro and con arguments for all three options and capable of making an informed decision. Hence I reject any suggestion that we have operated this WG in a manner that has not accorded every member his or her full rights and allowed all points of view to be expressed. The co-chairs are responsible for administering this WG in an efficient and fair manner and I believe we have fulfilled that responsibility. But the co-chairs have not taken a vow of silence that precludes us from sharing our personal views with the members of the WG, especially when they concur that a particular outcome could jeopardize our entire work product. Finally, there is no secret survey. We will share the results of it with WG members as soon as it closes, just as we shall share them in Abu Dhabi. Now here is the language in the Options document expressing the joint views of the co-chairs. Again, if a majority of the members of this WG believe that its inclusion, in the context of all the other statements that have been made regarding the three options in the course of WG discussions and email traffic, violated our duties as co-chairs then I for one will be happy to step aside and let others complete this task. Philip The co-chairs note that they have retained Option A (known previously as Option 1) for discussion because it is an option that several Working Group members have supported. However, the co-chairs wish to reiterate that in their view Option A is an inappropriate departure from our prior decision that ICANN should avoid taking any position that seeks to limit the legal rights or prejudge the outcome of any judicial proceeding, and is subject to strong criticism as it would vitiate a prior UDRP finding of cybersquatting by a domain registrant upon an IGO’s successful assertion of an immunity defense (The Co-Chairs recognize that although there may be examples where UDRP panels have reached incorrect decisions, that the best means to address such error is through judicial appeal, or appeal via arbitration as proposed in Option C). The Co-chairs further observe that Option A would leave IGOs in a worse position than they would be under the status quo (successful assertion of judicial immunity would remove the stay on enforcement of the prior UDRP decision), and as this would leave the IGO with no further available remedy, under these mechanisms, against the alleged cybersquatting, it is highly unlikely to be approved by the GNSO Council or the ICANN Board, especially as this PDP was chartered to evaluate whether and how access to the UDRP and URS could be improved for IGOs and INGOs. The Co-Chairs further believe that Option B is unlikely to secure Council or Board approval because it incorporates Option A for grandfathered domains, and clearly establishes the new arbitration option solely for domains registered after its implementation date. 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 -----Original Message----- From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Thursday, October 19, 2017 8:10 PM To: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C Hi folks, On Thu, Oct 19, 2017 at 7:29 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote:
· The Options document was developed by members of the working group
over multiple WG calls and there was no strong dissent to its content,
much less a charge that it was a “a one-sided summary document
prepared by proponents of Option C that directly attacks Options A and
B, and doesn't show the advantages or disadvantages of all options neutrally”.
That's not correct. See the post and PDF from September 26, 2017: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000847.html The PDF repeatedly uses the phrase "the Co-Chairs" in many of the paragraphs of the PDF, attacking Options A and B. I dissented to the content at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html The document was later updated at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000852.html still stating the "co-chairs" positions on various topics. I dissented to that document too: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000853.html as did Paul Tattersfield: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000855.html The document was amended one more time: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000857.html once again, always referencing only the "co-chairs" views, who are proponents of Option C. How can one honestly portray that as a document that was neutral? Then the "background documents" linked to with the survey: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html contains that same document, dated October 12, 2017: https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO+Access+to+Curative+Rights+Protection+Mechanisms[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_gnsoicrpmpdp_WEBINAR-2B2017-2D10-2D12-2BIGO-2DINGO-2BAccess-2Bto-2BCurative-2BRights-2BProtection-2BMechanisms&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=Mnna5daMOXTpGp9ZeNoduJpnTCWjEIjBfILJrcr6YZ0&s=6zxJPpDckOPEyVQLWRHEHUWxpbvt3sBkaDPhwLKZ1Lc&e=> https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO+Access+to+Curative+Rights+Protection+Mechanisms?preview=/71599851/71602970/Options%20Proposal%20for%20WG%20Discussion%20-%20updated%2012%20Oct%202017.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_gnsoicrpmpdp_WEBINAR-2B2017-2D10-2D12-2BIGO-2DINGO-2BAccess-2Bto-2BCurative-2BRights-2BProtection-2BMechanisms-3Fpreview-3D_71599851_71602970_Options-2520Proposal-2520for-2520WG-2520Discussion-2520-2D-2520updated-252012-2520Oct-25202017.pdf&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=Mnna5daMOXTpGp9ZeNoduJpnTCWjEIjBfILJrcr6YZ0&s=E6sMuWoVmw08dohUJJk6LR1Ek6bJbX0fXP6YvZvYFlo&e=> once again putting forth the "co-chairs" views front and center.
· The Options document is a summary of the contents and effect of
the Options, not a brief for or against any of them. I completely
reject your allegation that it attacks Options A and B; rather, it
simply and accurately states what they are.
That's not a credible statement. Did you actually read the document that you wrote? It's a direct attack against options A and B in the "preliminary notes" section of the document, and then later presents all three options. Are you now disavowing what you wrote?
· Notwithstanding the now allegedly biased nature of the Options
document, you had no problem immediately completing the survey and
sharing your vigorous advocacy for Options A and B on the same day the survey began.
(Likewise, in response I shared my personal view, based in large part
upon three years of service on GNSO Council, as well as participation
in the Board/GAC/GNSO discussions on IGO issues, that those Options
had little or no chance of being approved by Council and were
inconsistent with the bedrock principles that have guided our work.)
Yes, I believe all responses should be public and transparent, especially given this is an ongoing debate, and minds should still be open to be changed. Unlike your "personal views" that are reflected in the Options document itself, those of others who actually prefer other options are not in the options document. Furthermore, the "secret survey" that is being kept confidential is still being shared with the co-chairs, presumably (since it's being used to inform their future statements at the next ICANN meeting). The Co-chairs are supposed to have only an *administrative* role, e.g. arranging meeting times, and other grunt work of that nature. By getting preferential access to the survey results, available to no other PDP members, the co-chairs are then permitted to do their own advocacy to those members without a level playing field. The co-chairs should have no "information advantage" compared with other members due to their purely administrative role.
· I note that Imran’s email states “Option C is well elaborated and
reader can understand that what is being asked by him. May I ask to
update the questions for ‘Option A’ and ‘Option B’ with some additional detail?”
While I don’t believe that Option A requires the same amount of detail
as Option C, Imran now has the benefit of your further explanation
below, in addition to your advocacy statement of Monday, and can make
a decision accordingly.
That assumes Imran (and/or others) hadn't already filled out the survey by the time I posted, or that no other member of the PDP who already submitted the survey had an opportunity to read all the arguments, instead of the one-sided positions put forth by the co-chairs.
As for WG members who have been unable to participate in calls due to
schedule conflicts, we cannot postpone our final work indefinitely
until their calendars clear. And every member has full access to the
email list,
mp3 recordings, and meeting transcripts to keep up with the discussion
and inform themselves.
Perhaps a fresh Doodle poll should be conducted, to attempt to accommodate those (like Paul Keating) who've had persistent conflicts with the current Thursday time slot. That time slot was created ages ago, and might not accurately reflect availability of those who still need to understand all the arguments and ask questions in real-time. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/[leap.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=Mnna5daMOXTpGp9ZeNoduJpnTCWjEIjBfILJrcr6YZ0&s=uSifCBJhKuVHDDSXkx_e86eY3IqpSlx9neUhlwG6EIA&e=> _______________________________________________ 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 _______________________________________________ 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
Hi folks, First, I'd like to wholeheartedly support the recent thoughtful analysis and posts by Paul Keating and Paul Tattersfield. On to Phil's post: On Thu, Oct 19, 2017 at 8:50 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
The survey that WG members are being asked to respond to is neutral and descriptive and never once mentions the co-chairs or their views. I mistakenly referred to it as the Options document in my prior email when I was thinking of the actual survey that members were asked to respond to.
Again, the actual survey text directly links to that "Options" document, with all the one-sided commentary by the co-chairs in the "Preliminary Notes" section: https://www.surveymonkey.com/r/VCP8VKD "The current working text for each option has been included in the applicable question; however, note that the final text and certain details have not yet been fully agreed. See the full Options Proposal for details." And it's even linked to again at the bottom of that page, as well as in the "Background Materials" in Mary's email: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html Hardly a neutral presentation.
In light of that honest error, I have just again reviewed the " REMAINING OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the majority of its language is likewise neutral and descriptive, with the exception of the language reproduced below. This language states the informed view of the co-chairs. I believe we would have been remiss not to share our concerns with WG members.
The post leverages your positions as co-chairs, speaking as co-chairs, rather than speaking as individuals on a level playing field with other participants. When you filled out your Statement of Interest, you appeared to know the difference between speaking as a co-chair, and speaking as an individual member, see: https://community.icann.org/display/gnsosoi/Philip+S+Corwin+SOI "I understand fully that if I retain a leadership (Chair) role on the RPM Review WG I may express clearly identified personal views but cannot act as an advocate for a particular policy outcome." (link to your SOI in the list of IGO PDP is broken, but that's the general SOI that would apply, as per the RPM PDP too) Note the language "clearly identified personal views", and "cannot act as an advocate for a particular policy outcome." In the Options document, you don't identify those as personal views, but as "Co-Chairs" views. And even if they were identified as personal views, that wouldn't be the place for them -- they'd belong alongside all other personal views, on an equal footing.
Nonetheless, the co-chairs have permitted proponents of Option A and B and detractors of Option C – most especially you -- to vigorously and repeatedly state their own views, and have never attempted to suppress any such expression. We have included all remaining options in the survey for members to choose among. Any WG member who has been paying even a modicum of attention to the discussions of the past few weeks should be completely familiar with the pro and con arguments for all three options and capable of making an informed decision.
Actually, you unilaterally removed Option #6 from consideration, despite claiming (falsely) that "their essential elements have been adapted and incorporated into Options A, B, and/or C (below),". Where is Option #6 incorporated into Option C?? That's exactly why I had to oppose it, as noted previously. As for your last sentence, if that was the case, why was Imran seeking additional detail? I'm assuming that Imran is a diligent person who wants the presentation of the pros and cons laid out clearly, and it's insulting to imply or suggest that they must "not be paying even a modicum of attention". The same point was made by Paul Tattersfield and Paul Keating before Imran's email, see: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000867.html http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000868.html i.e. "articulate better the reasoning behind each option" Rather than listen to and respond to those concerns, they were ignored by the co-chairs.
Hence I reject any suggestion that we have operated this WG in a manner that has not accorded every member his or her full rights and allowed all points of view to be expressed. The co-chairs are responsible for administering this WG in an efficient and fair manner and I believe we have fulfilled that responsibility. But the co-chairs have not taken a vow of silence that precludes us from sharing our personal views with the members of the WG, especially when they concur that a particular outcome could jeopardize our entire work product.
Personal views were not expressed as "personal views", but instead leveraged the authority and position of "co-chairs", as noted above. Where does the name "Phil" or "Petter" appear in the "Preliminary" notes? Nowhere.
Finally, there is no secret survey. We will share the results of it with WG members as soon as it closes, just as we shall share them in Abu Dhabi.
We'll see exactly what gets shared, but it seems "summary" results only might be shared, not the individual responses with names attached, etc., which are the more meaningful ones.
Now here is the language in the Options document expressing the joint views of the co-chairs. Again, if a majority of the members of this WG believe that its inclusion, in the context of all the other statements that have been made regarding the three options in the course of WG discussions and email traffic, violated our duties as co-chairs then I for one will be happy to step aside and let others complete this task.
Stop being so defensive. Most of us are here to do the hard work, and yet you propose instead to distract things by creating "drama" over who hold an administrative post. What I and others are asking for is for people to do the hard work, and not rush to a bad decision due to political pressures.
However, the co-chairs wish to reiterate that in their view Option A is an inappropriate departure from our prior decision that ICANN should avoid taking any position that seeks to limit the legal rights or prejudge the outcome of any judicial proceeding, and is subject to strong criticism as it would vitiate a prior UDRP finding of cybersquatting by a domain registrant upon an IGO’s successful assertion of an immunity defense
This is an absurd argument. First, I 100% agree that ICANN should avoid taking any position that seeks to limit legal rights. It's not a place to "create new law". I think most (if not all) of the members of the PDP support that principle. However, Option A is the solution *most* consistent with preserving the legal rights of all parties. All three options are addressing the same "problem" with the UDRP, i.e. the uncontemplated scenario whereby successful invocation of the immunity argument thwarts the "de novo" review in the courts. Option A tells all parties "the UDRP decision is meaningless and won't be enforced" (as it should, to be consistent with the principle that ICANN (including its UDRP policy) should be inferior to the courts. Option A tells all parties "handle this dispute through the appropriate legal remedies", rather than having the UDRP actively interfere with those legal remedies and rights.
The Co-Chairs recognize that although there may be examples where UDRP panels have reached incorrect decisions, that the best means to address such error is through judicial appeal, or appeal via arbitration as proposed in Option C). The Co-chairs further observe that Option A would leave IGOs in a worse position than they would be under the status quo (successful assertion of judicial immunity would
This is misleading and false, as Option C *also* leaves IGOs in a worse position than they would be under the status quo, because now they would have to go to arbitration, instead of "winning on a technicality" via the courts immunity decision and having the domain transferred to them.
remove the stay on enforcement of the prior UDRP decision), and as this would leave the IGO with no further available remedy, under these mechanisms, against the alleged cybersquatting, it is highly unlikely to be approved by the GNSO Council or the ICANN Board, especially as this PDP was chartered to evaluate whether and how access to the UDRP and URS could be improved for IGOs and INGOs.
Again, there is no *legal* or requirement to provide a mechanism for the IGOs beyond those in the national courts, or to provide them with better access to the UDRP/URS than they already get (at the expense of registrants' rights). We've already established that they have sufficient access, and have identified workarounds that they can employ if they wish to minimize exposure to the immunity issue. There isn't even an important "public interest" (a dubious term) in providing such a mechanism. If there's any "pubic interest" of importance, it's that ICANN not be interfering with rights under national laws, and not be making up its own "laws" which conflict. Expectations about rights and laws are important public interest concerns, particularly for registrants. To put things in "Hollywood terms" (since Options A and B are being described as "Thelma and Louise"), Option A is better termed "Do The Right Thing", as it is a principled and nuanced approach that solves the problem with surgical precision. Option C is best described as the "Titanic" approach, ignoring the engineering flaws inherent in its design, which leads to a sinking ship. Option C seeks to abandon logical analysis and instead cave to **political** pressures, rather than fix issues correctly. Last, let me point out just 2 examples of problems with Option C that have not been identified in the self-serving documents provided by the co-chairs: (a) Panelists -- one of which must be a "retired judge". That sounds dandy, until even minimal research shows that NAF's infamous Carolyn Marks Johnson is a retired judge. See: http://www.adrforum.com/SearchPanelists and do a search, or note the description at: http://www.legacy.com/obituaries/houstonchronicle/obituary.aspx?pid=17288987... "Hon. Carolyn Marks Johnson, former judge in the 189th District Court in Harris County" I'm sure her reputation speaks for itself, but for those not keeping track, here's a link to some articles: https://domainnamewire.com/2010/03/22/study-shows-million-dollar-domain-arbi... https://domainnamewire.com/2009/07/22/national-arbitration-forum-panelist-su... https://domainnamewire.com/2016/07/21/mike-mann-overturns-udrp-decision-cour... https://www.thedomains.com/2015/03/17/worst-udrp-decision-of-the-year-panel-... She's not alone as a "retired judge", see Nelson Diaz (also at NAF), who I wrote about on CircleID for the sloppy copy and pasting of nonsense: http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udr... http://www.adrforum.com/domaindecisions/1312536.htm Are these the kinds of retired judges who could be handling Option C disputes, who are supposed to protect the integrity of that system? (b) Costs -- it's naive to believe that costs would be lower in arbitration than in a judicial case, while trying to emulate the due process protections of a court. One need only look at a recent IRP that ICANN lost: http://domainincite.com/21481-icann-loses-another-irp-sport-gtld-fight-reope... where the costs of the IRP itself (*not* counting lawyers fees of each party) amounted to $152,673. In real courts, the actual disbursement costs and filing fees are relatively low (hundreds of dollars, maybe thousands in a complex case), because the most substantial cost, namely the labour cost for the judge (their salary) is paid for by TAXPAYERS! Not so in an arbitration, where the parties themselves have to pay for the costs of the panelists (3 panelists, multiplied by hundreds of dollars per hour, multiplied by many hours adds up quickly). I'll leave it at that, for now. I do have other points, which, as the two Pauls have suggested, should be in a substantial, neutral and thorough "pros and cons" document prepared for the group (and for the community) *before* making decisions or taking surveys. I endorse their call for such a system, which the co-chairs have ignored. By my count, that would make at least 3 people calling for that (maybe 4, if counting Imran), which exceeds the "2" votes by the co-chairs, acting in their sole individual capacities. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Dear all WG members, Initially, I repeat and support Philip’s comments. We have in fact discussed the Options and the Survey several times on our WG meetings. I have, so far, avoided replying to the e-mail comments filed after the start of the Survey, as I wanted to see a neutral period where all WG members could reply to the survey without interruption of discussions on the topics. As you all can see on the Survey, there are places to comment on each of the three options, and may I suggest that all voting WG members use that possibility so that we can collect them and refer to them when studying the result of the Survey. As to the information / presentation of each option, we have in fact discussed them on our WG meetings prior to the survey, and we have – as an example – re-phrased Option A based on George’s input/suggestions, before the Survey was finalized and sent to the WG. I also think it is in fact included in Philip’s and my mission as Co-Chairs to indicate which solution is most likely to be accepted by the Council, Board and IGO/GAC. Then it is up to each WG member to make your own decision, vote on that/those, and make your notes/comments in the Survey. May I also remind all WG members, that we are trying to solve an international problem/topic, that is not focused on US practice or even less pointing to any specific US judge. As an example, last time I saw the list of WIPO Domain Name Panelists, 110 was from USA, 19 from Canada, and 346 from 57 other countries around the world. And, at least 28 IGO’s are based outside USA (main part in Geneva, Switzerland). So, based on what we have discussed during our WG meetings, please use the Survey for your vote and comments. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you 20 oktober 2017 02:50:55 +02:00, skrev Phil Corwin <psc@vlaw-dc.com>:
George:
The survey that WG members are being asked to respond to is neutral and descriptive and never once mentions the co-chairs or their views. I mistakenly referred to it as the Options document in my prior email when I was thinking of the actual survey that members were asked to respond to.
In light of that honest error, I have just again reviewed the " REMAINING OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the majority of its language is likewise neutral and descriptive, with the exception of the language reproduced below. This language states the informed view of the co-chairs. I believe we would have been remiss not to share our concerns with WG members.
Nonetheless, the co-chairs have permitted proponents of Option A and B and detractors of Option C – most especially you -- to vigorously and repeatedly state their own views, and have never attempted to suppress any such expression. We have included all remaining options in the survey for members to choose among. Any WG member who has been paying even a modicum of attention to the discussions of the past few weeks should be completely familiar with the pro and con arguments for all three options and capable of making an informed decision.
Hence I reject any suggestion that we have operated this WG in a manner that has not accorded every member his or her full rights and allowed all points of view to be expressed. The co-chairs are responsible for administering this WG in an efficient and fair manner and I believe we have fulfilled that responsibility. But the co-chairs have not taken a vow of silence that precludes us from sharing our personal views with the members of the WG, especially when they concur that a particular outcome could jeopardize our entire work product.
Finally, there is no secret survey. We will share the results of it with WG members as soon as it closes, just as we shall share them in Abu Dhabi.
Now here is the language in the Options document expressing the joint views of the co-chairs. Again, if a majority of the members of this WG believe that its inclusion, in the context of all the other statements that have been made regarding the three options in the course of WG discussions and email traffic, violated our duties as co-chairs then I for one will be happy to step aside and let others complete this task.
Philip
The co-chairs note that they have retained Option A (known previously as Option 1) for discussion because it is an option that several Working Group members have supported. However, the co-chairs wish to reiterate that in their view Option A is an inappropriate departure from our prior decision that ICANN should avoid taking any position that seeks to limit the legal rights or prejudge the outcome of any judicial proceeding, and is subject to strong criticism as it would vitiate a prior UDRP finding of cybersquatting by a domain registrant upon an IGO’s successful assertion of an immunity defense (The Co-Chairs recognize that although there may be examples where UDRP panels have reached incorrect decisions, that the best means to address such error is through judicial appeal, or appeal via arbitration as proposed in Option C). The Co-chairs further observe that Option A would leave IGOs in a worse position than they would be under the status quo (successful assertion of judicial immunity would remove the stay on enforcement of the prior UDRP decision), and as this would leave the IGO with no further available remedy, under these mechanisms, against the alleged cybersquatting, it is highly unlikely to be approved by the GNSO Council or the ICANN Board, especially as this PDP was chartered to evaluate whether and how access to the UDRP and URS could be improved for IGOs and INGOs. The Co-Chairs further believe that Option B is unlikely to secure Council or Board approval because it incorporates Option A for grandfathered domains, and clearly establishes the new arbitration option solely for domains registered after its implementation date.
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
-----Original Message----- From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Thursday, October 19, 2017 8:10 PM To: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Hi folks,
On Thu, Oct 19, 2017 at 7:29 PM, Phil Corwin <<psc@vlaw-dc.com>> wrote:
· The Options document was developed by members of the working group over multiple WG calls and there was no strong dissent to its content, much less a charge that it was a “a one-sided summary document prepared by proponents of Option C that directly attacks Options A and B, and doesn't show the advantages or disadvantages of all options neutrally”.
That's not correct. See the post and PDF from September 26, 2017:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000847.html>
The PDF repeatedly uses the phrase "the Co-Chairs" in many of the paragraphs of the PDF, attacking Options A and B.
I dissented to the content at:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html>
The document was later updated at:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000852.html>
still stating the "co-chairs" positions on various topics. I dissented to that document too:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000853.html>
as did Paul Tattersfield:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000855.html>
The document was amended one more time:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000857.html>
once again, always referencing only the "co-chairs" views, who are proponents of Option C.
How can one honestly portray that as a document that was neutral?
Then the "background documents" linked to with the survey:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html>
contains that same document, dated October 12, 2017:
<https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO...>
<https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO...>
once again putting forth the "co-chairs" views front and center.
· The Options document is a summary of the contents and effect of the Options, not a brief for or against any of them. I completely reject your allegation that it attacks Options A and B; rather, it simply and accurately states what they are.
That's not a credible statement. Did you actually read the document that you wrote? It's a direct attack against options A and B in the "preliminary notes" section of the document, and then later presents all three options. Are you now disavowing what you wrote?
· Notwithstanding the now allegedly biased nature of the Options document, you had no problem immediately completing the survey and sharing your vigorous advocacy for Options A and B on the same day the survey began. (Likewise, in response I shared my personal view, based in large part upon three years of service on GNSO Council, as well as participation in the Board/GAC/GNSO discussions on IGO issues, that those Options had little or no chance of being approved by Council and were inconsistent with the bedrock principles that have guided our work.)
Yes, I believe all responses should be public and transparent, especially given this is an ongoing debate, and minds should still be open to be changed. Unlike your "personal views" that are reflected in the Options document itself, those of others who actually prefer other options are not in the options document.
Furthermore, the "secret survey" that is being kept confidential is still being shared with the co-chairs, presumably (since it's being used to inform their future statements at the next ICANN meeting). The Co-chairs are supposed to have only an *administrative* role, e.g. arranging meeting times, and other grunt work of that nature. By getting preferential access to the survey results, available to no other PDP members, the co-chairs are then permitted to do their own advocacy to those members without a level playing field. The co-chairs should have no "information advantage" compared with other members due to their purely administrative role.
· I note that Imran’s email states “Option C is well elaborated and reader can understand that what is being asked by him. May I ask to update the questions for ‘Option A’ and ‘Option B’ with some additional detail?” While I don’t believe that Option A requires the same amount of detail as Option C, Imran now has the benefit of your further explanation below, in addition to your advocacy statement of Monday, and can make a decision accordingly.
That assumes Imran (and/or others) hadn't already filled out the survey by the time I posted, or that no other member of the PDP who already submitted the survey had an opportunity to read all the arguments, instead of the one-sided positions put forth by the co-chairs.
As for WG members who have been unable to participate in calls due to schedule conflicts, we cannot postpone our final work indefinitely until their calendars clear. And every member has full access to the email list, mp3 recordings, and meeting transcripts to keep up with the discussion and inform themselves.
Perhaps a fresh Doodle poll should be conducted, to attempt to accommodate those (like Paul Keating) who've had persistent conflicts with the current Thursday time slot. That time slot was created ages ago, and might not accurately reflect availability of those who still need to understand all the arguments and ask questions in real-time.
Sincerely,
George Kirikos 416-588-0269 <http://www.leap.com/> _______________________________________________ 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>
+1. I also note that when issues of consensus were raised some time ago, we were assured that the fact that options were being discussed and described was not an indication that any consensus had been formed or that it was being driven to any particular corner. Paul On 10/20/17, 12:13 AM, "George Kirikos" <gnso-igo-ingo-crp-bounces@icann.org on behalf of icann@leap.com> wrote:
Rather than unilaterally cancelling today's call, we should have kept up our hard work, as the latest emails show that more work is needed and desired. I'd like to note that Imran is now the 3rd person in this PDP working group who has openly asked for a document *neutrally* elaborating on the 3 options currently before us. I suppose you can now consider me the 4th. Paul Tattersfield was the first:
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000867.html
and Paul Keating concurred:
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000868.html
Instead, those who've not followed things closely are provided with a one-sided summary document prepared by proponents of Option C that directly attacks Options A and B, and doesn't show the advantages or disadvantages of all options neutrally. To me, that's inappropriate. I previously expressed concerns that this so-called "survey" was not transparent:
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000870.html
Option A has a very strong underlying principle, namely that ICANN's policies should not interfere with the legal rights of registrants and 3rd parties. That was the "bargain" that was made with the introduction of the UDRP itself, namely that while it was a procedure that was imposed upon registrants, it was always subject to de novo review using the courts. Given that the courts would always be able to have the "final word", to that extent it was not interfering with registrants or 3rd parties, since they could always go to the courts to ultimately adjudicate and decide the dispute on the merits. The "price" that complainants in a UDRP/URS paid to use the UDRP/URS procedure was the "mutual jurisdiction" clause, which permitted that final word to be had via the courts and thus protect registrants' inherent rights to due process and the protection of the national courts.
In the scenario we've been long considering, it exposed a potential flaw in the UDRP/URS, an unexpected situation that was never contemplated by those who created the UDRP (indeed, it's never actually been experienced through an actual test in the courts, but our deep research of the topic exposed the unintended flaw). That flaw is the potential for an IGO to deny the de novo review to the registrant of the domain name by arguing successfully before a court that its "immunity" trumps the "mutual jurisdiction" clause that it agreed to when it filed the UDRP/URS.
Option A directly corrects that situation, and *preserves* the status quo amongst all parties to the dispute, setting aside the UDRP/URS decision and forcing them instead to use existing *legal* mechanisms to solve the dispute. An IGO could go to the police, for example, to complain about alleged illegal use of a domain name. Or it could waive its claimed "immunity" and file a dispute in the courts. Or it could use one of the workarounds we identified in this PDP (i.e. filing a UDRP/URS using a licensee, assignee agent, etc. instead of filing it directly). In other words, IGOs have potential workarounds, but registrants do not.
When Mary wrote:
"In short, applying Option A when the court case is dismissed because the IGO succeeds in claiming immunity from the court¹s jurisdiction will mean that the original UDRP or URS decision will not be enforced so the domain will remain with the registrant and not transferred to the IGO or canceled. This will mean a different rule applies to IGOs in this specific situation, compared to other situations where the court case is between a registrant and a non-IGO in these other situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced."
That's missing the point completely, namely that Option A seeks to preserve the court's ability to *rule on the merits* of cases, rather than be forced to dismiss cases due to "immunity" (and thus be unable to hear the case on the merits). Option A seeks to ensure that a full de novo review can take place on the merits, which was the "price" for using the UDRP/URS in the first place.
Looking deeper, why would any registrant ever AGREE to the imposition of the UDRP/URS, if they could not have their case heard on the merits in the courts afterwards? We know the long history of incorrect UDRP decisions, some quite outrageously flawed, and it's only the ability to go to court that ensures the integrity of the process, ensures that justice can take place (although injustices still take place, e.g. if a registrant can't afford court, or fails to act in time to file in court, perhaps because they didn't get proper notice of the UDRP/URS). Remove the ability to get to the correct decision via the courts, and the injustices that take place would get worse than they already are today, and go unchecked.
Option C, on the other hand, seeks to replicate the courts by the creation of an arbitration option. This is meant to imitate the courts, but it's a poor facsimile. Most registrants would prefer the "real thing", rather than an arbitration that could share many of the same problems and deficiencies that exist with the UDRP procedure itself (for example, wildcard/rogue panelists, lack of multiple levels of appeal, etc.). If registrants or IGOs jointly wanted arbitration, they don't need ICANN to impose it upon them --- they always have the ability to choose voluntary arbitration or mediation regardless of whatever legal processes exist. But, Option C leaves that flawed procedure as the *only* path available, rather than the courts.
This difference matters, as those who'd be appealing adverse UDRP or URS decisions would be registrants of the most valuable domain names (e.g. short acronyms, and/or single word domains). Some of these domain names are worth hundreds of thousands or millions of dollars, and are worth fighting for in court, despite the legal costs involved. Few would be investing the time and expense to fight in court over domains that are worth $100 or $5000. For these high value domains, the full protection of legal due process (i.e. the national courts) is vital.
Some who promote arbitration as an acceptable alternative to the courts would likely not agree to that if their own rights were being threatened. e.g. how many trademark holders would agree to lose the ability to appeal to the courts if an IGO challenged one of their trademarks via the TTAB in the USA? I think the answer would be ZERO! They'd want the full protection of the courts, just as domain name registrants would want for domain name rights.
And we know from the US State department letter to an IGO that no special procedure was created for IGOs (re: UNIFEM.com):
https://www.state.gov/s/l/38648.htm
They were told to go to the courts, just like anybody else. Why are proponents of Option C proposing something different? Domain name registrants are treated as second-class citizens, not worthy of the full legal protection accorded to others who have disputes over other matters. That needs to stop.
The proponents of Option C "take as a given" that the UDRP/URS are "the law of the land", but then still ultimately *change* the procedure to provide the arbitration option! It's no longer "taken as a given", if it's ultimately being changed. i.e. the fact that Option C exists, and is changing the UDRP/URS is an acknowledgement that the UDRP/URS have that flaw (described above), i.e. the scenario not contemplated by the creators of the UDRP/URS.
Proponents of Option C, then, take a very poor path, in my opinion, in that they acknowledge that the flaw exists, but seek to "correct it" by adding an additional flawed procedure *on top* of the already flawed UDRP/URS, a procedure that seeks to copy the courts, but not give full due process.
Proponents of Option A, though, have a much cleaner and appropriate solution --- they seek to *directly eliminate* the flaw in the UDRP/URS, the root of the problem, by setting aside the UDRP/URS decision if that scenario was ever invoked by an IGO. By setting aside the UDRP/URS in that scenario, all parties are back to square one, and the UDRP/URS hasn't interfered with anyone's rights. The root of the problem goes away completely. The supremacy of the courts is thus assured.
That supremacy of the courts could have also been promoted via a full incorporation of the previously proposed Option #6 into Option C, namely expressly requiring that "in rem" actions by registrants be accorded the same rights (in the eyes of a registrar) as an "in personam" action. In particular, an in rem action would require that the registrar *not* implement the UDRP/URS decision, just like it currently is forced to do under rule 4(k) of the UDRP for an in personam case [another flaw of the UDRP exposed, i.e. the creators of the UDRP never contemplated an in rem action, to avoid the issue of immunity entirely]. But, this Option #6 was never fully incorporated into Option C, since Option C was so rushed and is half-baked at this point.
Now, Option B seeks a middle ground, namely applying Option A for domains created before a certain date (i.e. whenever the new policy is approved/implemented, after it gets through GNSO council, ICANN Board, implementation team, etc), and Option C for domains created on or after that date. In addition, it requires ongoing data collection and a mandatory review after a certain time period or after a certain number of arbitrations are heard, in order to ensure that there are no unintended consequences (violation of due process, or systematic bad decisions) from imposing Option C on some domains.
That mandatory review aspect of Option B is important, as we know from past ICANN polices that broken procedures can take on a life of their own, and its hard to ever correct them. The UDRP will have been in effect more than 20+ years by the time its review is complete in the current RPM PDP (of which I and several others in this group are members), a review that was long resisted by many beneficiaries of the current broken policy.
One might think that perhaps the "unintended scenario" or flaw that we've exposed in this PDP might be corrected within the RPM working group. While that's a possibility, I think it's unlikely, given the highly charged and political environment of that UDRP, where many are seeking to preserve a status quo that routinely harms the rights of domain name registrants. Thus, it's important that we get things right in *our* PDP, which has been deeply focused on these very issues (whereas they will be considered tangential in the other PDP).
In conclusion, Option A is the best solution, because it takes on the flawed aspect of the UDRP/URS directly and eliminates it, rather than trying to cover it up with an untested procedure (arbitration, Option C) that *itself* is flawed. Option A ensures that the courts have supremacy, and that ICANN policies (the current UDRP/URS) don't take away rights from anyone.
From a "risk" analysis, Option A is also best, because IGOs have workarounds they can use (assignee, licensee, or agent options that we identified) to address their concerns about the immunity question, while domain name registrants have no such workarounds.
If you can't live with Option A, then Option B is next best, since it imposes the flawed Option C only upon newly created domain names, and leaves it to a future PDP to see how things turn out for them.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Thu, Oct 19, 2017 at 12:18 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear Imran,
Without highlighting the merits and disadvantages or arguing for or against any specific options, since it will not be appropriate for staff to do so, staff confirms that your conclusion about Option A correctly reflects the understanding of the Working Group.
In short, applying Option A when the court case is dismissed because the IGO succeeds in claiming immunity from the court¹s jurisdiction will mean that the original UDRP or URS decision will not be enforced so the domain will remain with the registrant and not transferred to the IGO or canceled. This will mean a different rule applies to IGOs in this specific situation, compared to other situations where the court case is between a registrant and a non-IGO in these other situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced.
On your other question, please note that all the three options are independent of one another, so they cannot be combined in their current form. Thus, Option A and B cannot be read together as they are separate solutions.
The Working Group discussed the details and consequences of these options over various calls. There were actually more than three options under discussion, and what we now see as Options B and, especially, C went through significant discussion and (in the case of Option C) amendment. The Working Group also conducted an Impact Analysis of all the many options (you can see that Impact Analysis document here: https://community.icann.org/x/mwghB).
To gain a full understanding of all the many options and the various discussions over each of them, you would have to review the call recordings or transcripts from August and September. However, if you need a clear summary of what the final three options (A, B and C) are, you can review the materials that we sent out with the poll, i.e. the slides used for last week¹s webinar and the final version of the Options Document: https://community.icann.org/x/64ZEB.
I hope this is helpful. The chairs and other Working Group members may wish to add their own comments.
Thanks and cheers
Mary
From: Imran Ahmed Shah <ias_pk@yahoo.com> Reply-To: Imran Ahmed Shah <ias_pk@yahoo.com> Date: Thursday, October 19, 2017 at 10:32 To: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: Imran Ahmed Shah <imran@uisoc.org> Subject: [Ext] Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Dear Mary Wong, and Dear All WG Members,
Thanks for the Survey and obtaining the opinion of all WG Members.
While responding to the Survey, I found that the question asked in the survey is not very much clear, especially when I read the phrase of Option A alone or Option A & Option B together.
However, Option C is well elaborated and reader can understand that what is being asked by him. May I ask to update the questions for Option A¹ and Option B¹ with some additional detail?
Secondly, in Option A, the final statement ³.the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated (i.e. set aside.)², needs to be elaborated further.
After consulting it further I reach on the following understanding:
Explaining that which of the UDRP decision will be set aside/erased/not given force?
Through a consultation, I learned that, this is the result of a success (of IGO) would be to set aside, which was the original UDRP decision.
And this reversal would permit the cybersquatting found by the panel to persist.
³The current rule is that if a registrant files a judicial appeal and the court case is subsequently dismissed for any reason, then the stay on enforcement for the original UDRP decision is lifted and the domain is transferred or extinguished. Option A would reverse that rule solely for IGOs.²
May I ask the Option A proponents to explain it further (if the above explanation is not sufficient), for my understanding and for other members of the WG?
Thanking you and Best Regards
Imran Ahmed Shah
________________________________
From: Mary Wong <mary.wong@icann.org> To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Sent: Tuesday, 17 October 2017, 1:39 Subject: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Dear Working Group members,
At the direction of the co-chairs and with their approval, staff has prepared the following survey that we are asking all members to fill out by 1800 UTC on Monday 23 October. The purpose of the survey is to enable Phil and Petter to determine the level of preliminary consensus amongst all members for each of the three options under discussion, relating to the situation where a respondent has filed court proceedings against an IGO and the IGO has successfully claimed immunity in that court. As our open community session at ICANN60 will be devoted to a presentation and discussion of all our proposed final recommendations, it is important for Phil and Petter to know which option is the most preferred at this stage.
Link to survey: https://www.surveymonkey.com/r/VCP8VKD[surveymonkey.com]
Link to background materials: https://community.icann.org/x/64ZEB[community.icann.org] (you will find the slides used by Petter and Phil to present all the proposed final recommendations and options during the webinar last week, as well as the most current version of the Options A, B and C document, under Background Documents. Please be sure to review these to familiarize yourself with the full details of the three options).
Please note that this survey is not intended to be a formal vote, nor does it replace the mandatory consensus call that will take place on all the final recommendations prior to our submission of the Final Report to the GNSO Council. The co-chairs currently expect the Working Group to finalize all recommendations following community feedback at ICANN60.
Please raise any questions or concerns you may have to this mailing list before the survey closes on Monday 23 October.
Thanks and cheers
Mary
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Dear Mary & Imran, There are a lot of issues to cover here. George has already dealt with the incorrect reasoning on the perceived differences on the way IGO and non IGO claimants are dealt with so I’ll not comment other than to say clearly one has been heard one has not. George has also commented extensively on the technical discussion behind the options so here is an attempt to get an overview of the problems I believe we are tasked with solving to bring this working group to a final conclusion. Yours sincerely, Paul. *Drafting considerations* Options A, B & C are not drafted objectively. In the All RPMs Working Group the Trademark and Industry interests would be up in arms if anyone ever dared to place such options before them for consideration. They complain about the inclusion of individual words never mind impartial phrases, concepts or reasoning in the preamble yet alone in the options being considered. For example: In option ‘A’ if an IGO refuses to participate in court proceedings ‘the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated’ In option ‘C’ if an IGO refuses to participate in arbitral proceedings ‘the enforcement of the underlying UDRP/URS decision will be permanently stayed’ Are these outcomes different? Would some people read them differently? *Theoretical considerations* Firstly the IGO Small Group has indicated that it recognises the principle of coexistence so the IGOs are not seeking an automatic right to all their names and acronyms, so whether option A is a fair outcome or not ultimately depends on whether an IGO is entitled to immunity in any court proceedings following on from a UDRP. If there was no UDRP process available and an IGO could not reach agreement with the registrant it would have to look to a court to settle the matter. With the IGO being the complainant it would not be possible for court to consider the matter without the IGO submitting to the courts jurisdiction. This is important: I can find no forum including the current UDRP which permits an IGO to claim jurisdictional immunity after initiating a dispute. So the question is: Should an IGO ever be entitled to immunity when a registrant brings a court action in response to a UDRP which the IGO has chosen to initiate? Unfortunately the working group has not formally answered this fundamental question and until this question is fully considered the working group runs the risk of building bad policy based on political considerations rather than sound principles. The way Option C as currently drafted is clumsy, theoretical and inconsistent the working group’s proposed reasoning on mutual jurisdiction, whereas option A is much simpler theoretical tidying exercise. (Albeit an unpalatable reasoning for some people.) *Practical considerations* The idea that a bad actor scamming credit card donations from an Ebola Crisis or UNCHR is going to respond to a UDRP never mind take court action costing $10,000s is beyond parody. UDRP and URS was never intended to stop this kind of behaviour the idea that anyone would wait two months for a UDRP ruling to stop someone scamming credit card donations intended for an IGO’s is also surreal. The examples from the New York Times article cited by WIPO in their submission to our working group’s first report couldn’t be solved even if we as a working group said every domain that the IGO’s demanded had to be automatically given to the IGOs. Simply because none of them involved an infringing domain. (They involved faked email headers). When domains are used in these types of scams these bad actors often register hundreds or even thousands of non-infringing domains and cycle through them in hours because registrars are good at shutting them down. The overwhelming majority of registrars are more than happy to shut down such scam sites often in minutes of being reported and for free! Further ICANN accreditation compliance actually requires a registrar to take action on such behaviour, should a registrar resist it is a serious matter for the registrar as they risk losing their business through the improper use of a single customer’s domain(s). Options A, B & C will have zero impact on the examples WIPO have given, WIPO needs to look at other non UDRP/URS solutions to solve this problem. While they are expending time and resources on this, they are failing to present informed, unbiased advice on behalf of the IGO and wider communities on how to genuinely solve these sorts of issues. *Political considerations* Many IGO’s do incredible works and ICANN as an organization should make every effort to ensure that these organizations are well protected in the DNS. There are also a myriad of INGO, NGOs, small groups and even individuals that also do great works and they too must be equally well protected in the DNS. It is really troubling that a handful of individuals will lobby at the highest level for fundamental changes that could if implanted incorrectly in option C, test the very foundations of UDRP (which has been, one of ICANN’s leading achievements) for a purpose that will not even begin to solve the problems they state they wish to solve. When someone is lobbying for special powers I’m always minded that we must be very careful not to create the situation where all registrants are equal but some registrants are more equal than others. Oh, and on option B that’s a halfway house to try and minimize some of the possible damage done by a badly implemented option C. On Thu, Oct 19, 2017 at 5:18 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear Imran,
Without highlighting the merits and disadvantages or arguing for or against any specific options, since it will not be appropriate for staff to do so, staff confirms that your conclusion about Option A correctly reflects the understanding of the Working Group.
In short, applying Option A when the court case is dismissed because the IGO succeeds in claiming immunity from the court’s jurisdiction will mean that the original UDRP or URS decision will not be enforced – so the domain will remain with the registrant and not transferred to the IGO or canceled. This will mean a different rule applies to IGOs in this specific situation, compared to other situations where the court case is between a registrant and a non-IGO – in these other situations, where the court case is dismissed, the original UDRP and URS decision will stand and be enforced.
On your other question, please note that all the three options are independent of one another, so they cannot be combined in their current form. Thus, Option A and B cannot be read together as they are separate solutions.
The Working Group discussed the details and consequences of these options over various calls. There were actually more than three options under discussion, and what we now see as Options B and, especially, C went through significant discussion and (in the case of Option C) amendment. The Working Group also conducted an Impact Analysis of all the many options (you can see that Impact Analysis document here: https://community.icann.org/x/mwghB).
To gain a full understanding of all the many options and the various discussions over each of them, you would have to review the call recordings or transcripts from August and September. However, if you need a clear summary of what the final three options (A, B and C) are, you can review the materials that we sent out with the poll, i.e. the slides used for last week’s webinar and the final version of the Options Document: https://community.icann.org/x/64ZEB.
I hope this is helpful. The chairs and other Working Group members may wish to add their own comments.
Thanks and cheers
Mary
*From: *Imran Ahmed Shah <ias_pk@yahoo.com> *Reply-To: *Imran Ahmed Shah <ias_pk@yahoo.com> *Date: *Thursday, October 19, 2017 at 10:32 *To: *Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" < gnso-igo-ingo-crp@icann.org> *Cc: *Imran Ahmed Shah <imran@uisoc.org> *Subject: *[Ext] Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Dear Mary Wong, and Dear All WG Members,
Thanks for the Survey and obtaining the opinion of all WG Members.
While responding to the Survey, I found that the question asked in the survey is not very much clear, especially when I read the phrase of Option A alone or Option A & Option B together.
However, Option C is well elaborated and reader can understand that what is being asked by him. May I ask to update the questions for ‘Option A’ and ‘Option B’ with some additional detail?
Secondly, in Option A, the final statement “….the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated (i.e. set aside.)”, needs to be elaborated further.
After consulting it further I reach on the following understanding:
Explaining that which of the UDRP decision will be set aside/erased/not given force?
Through a consultation, I learned that, this is the result of a success (of IGO) would be to set aside, which was the original UDRP decision.
And this reversal would permit the cybersquatting found by the panel to persist.
“The current rule is that if a registrant files a judicial appeal and the court case is subsequently dismissed for any reason, then the stay on enforcement for the original UDRP decision is lifted and the domain is transferred or extinguished. Option A would reverse that rule solely for IGOs.”
May I ask the Option A proponents to explain it further (if the above explanation is not sufficient), for my understanding and for other members of the WG?
Thanking you and Best Regards
Imran Ahmed Shah
------------------------------
*From:* Mary Wong <mary.wong@icann.org> *To:* "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> *Sent:* Tuesday, 17 October 2017, 1:39 *Subject:* [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C
Dear Working Group members,
At the direction of the co-chairs and with their approval, staff has prepared the following survey that we are asking *all members to fill out by* *1800 UTC on Monday 23 October*. *The purpose of the survey is to enable Phil and Petter to determine the level of preliminary consensus amongst all members for each of the three options under discussion*, relating to the situation where a respondent has filed court proceedings against an IGO and the IGO has successfully claimed immunity in that court. As our open community session at ICANN60 will be devoted to a presentation and discussion of all our proposed final recommendations, it is important for Phil and Petter to know which option is the most preferred at this stage.
- Link to survey: https://www.surveymonkey.com/ r/VCP8VKD[surveymonkey.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.surveymonkey.com_r_...>
- Link to background materials: https://community.icann.org/x/ 64ZEB[community.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_6...> (you will find the slides used by Petter and Phil to present all the proposed final recommendations and options during the webinar last week, as well as the most current version of the Options A, B and C document, under Background Documents. Please be sure to review these to familiarize yourself with the full details of the three options).
*Please note that this survey is not intended to be a formal vote, nor does it replace the mandatory consensus call that will take place on all the final recommendations prior to our submission of the Final Report to the GNSO Council*. The co-chairs currently expect the Working Group to finalize all recommendations following community feedback at ICANN60.
Please raise any questions or concerns you may have to this mailing list before the survey closes on Monday 23 October.
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
participants (6)
-
George Kirikos -
Mary Wong -
Paul Keating -
Paul Tattersfield -
Petter Rindforth -
Phil Corwin