+1 Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac@gtlaw.com<mailto:trac@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of McGrady, Paul D. Sent: Thursday, July 9, 2020 10:26 AM To: Kathy Kleiman <kathy@kathykleiman.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Deadline 30 June - Comments on Revised Draft Recommendations - Package 6 *EXTERNAL TO GT* Thanks Kathy. Taking each in turn: On Monday, I objected to the deletions of words that made Section 2.7.3 (Closed Generics) clear and accessible to the larger ICANN Community. The words “ban” and “effectively ban” are clear and accurate; that’s exactly what the Board resolution did in the first round. By the rules of our editing, this objection should act as a bar on the change. We agreed for these “I can’t live with it” changes that we all agree or they don’t go in– and we have set aside many fine changes for lack of full agreement. “Ban” and “effective ban” are spin. Members of the WG objected to them all along the way. The spin somehow made it into the draft, which I and many others objected to. Spin is never more accurate than facts, which is why I suggested we put in the actual facts - what the Board actually did. I understand that what the Board actually did may not help those who want there to be a ban on so-called closed generics. But silencing the Board’s actual voice in favor of spin won’t inform the community of what is really going on. If we think the community can’t read and understand Board resolutions (I don’t, it is pretty darn clear), well, clarity of Board resolutions is outside the scope of this PDP. Further, we heard from George Sadowsky, then a member of the Board, that the 2015 Board resolution on Closed Generics is meant to stand until the GNSO comes up with another policy. If we had any question about what the Board meant, that’s our answer and we should share it. One former member of a Board can’t speak for the Board. That is not how Board’s operate. They speak with one voice via resolutions. Further, there is no need for anyone to speak for the Board. The Board’s resolution says what it says. I understand that opponents of so-called closed generics would prefer that George’s view of the Board’s resolution governs rather than what the Board actually said, but that is not how Boards work. We shouldn’t substitute George’s opinion (no matter how much we may love and appreciate George) for the Board’s actual resolution (which is why I asked that it be included in the draft). Should an applicant run in to trouble later and try to rely on George’s opinion rather than the Board’s resolution, that won’t be very helpful to the applicant (or anyone else). Finally, I heard (and agree) that the question of default is unclear to the public. This procedural question is very important for the public to understand and comment on, and not clear in the current version. We have agreement here, Kathy. But, the co-chairs did not want to discuss what the status quo means and they have now cut off discussion on this entire topic on our calls, so I guess we have to live with the ambiguity. If, however, the goal here is to claim that the status quo is a ban or effective ban, I don’t think that has any legs (due to the Board’s resolution). I am willing to withdraw my objections if we add further language to a) clarify the Board resolution and GAC advice, and b) make clear the additional question of “default” in future rounds. To that end, I offer the attached language (showing the full edit history of the WG) with these newly-offered changes. Attached. Kathy, we don’t need to editorialize what the Board said, especially when the editorial is nothing more than trying to rework in the myth of the ban or effective ban. It is also quite unhelpful for you to spin those of us who want to stick with the Board’s resolution rather than your spin as somehow “ignoring the Board.” So, I neither support the very lopsided document that you submitted nor your attempts to reintroduce the spin here. Let’s stick with what the Board said instead. Facts are better than spin. Always. Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DUT...>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covid...>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Kathy Kleiman Sent: Wednesday, July 8, 2020 9:27 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline 30 June - Comments on Revised Draft Recommendations - Package 6 Hi All, On Monday, I objected to the deletions of words that made Section 2.7.3 (Closed Generics) clear and accessible to the larger ICANN Community. The words “ban” and “effectively ban” are clear and accurate; that’s exactly what the Board resolution did in the first round. By the rules of our editing, this objection should act as a bar on the change. We agreed for these “I can’t live with it” changes that we all agree or they don’t go in– and we have set aside many fine changes for lack of full agreement. Further, we heard from George Sadowsky, then a member of the Board, that the 2015 Board resolution on Closed Generics is meant to stand until the GNSO comes up with another policy. If we had any question about what the Board meant, that’s our answer and we should share it. Finally, I heard (and agree) that the question of default is unclear to the public. This procedural question is very important for the public to understand and comment on, and not clear in the current version. I am willing to withdraw my objections if we add further language to a) clarify the Board resolution and GAC advice, and b) make clear the additional question of “default” in future rounds. To that end, I offer the attached language (showing the full edit history of the WG) with these newly-offered changes. Attached. Best, Kathy ---------------------------------------------------------------------- If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com, and do not use or disseminate the information.
