Great on the language, I will file a “Can’t Live with Comment” to change that language. As far as whether this is a live topic, we will see the comments that we get back on this Cant Live with Exercise. We have been through this topic so many times, and we have seen very little movement by the various sides. Leadership has made the assessment that we are unlikely to reach compromise on this subject and therefore we do not consider it a live issue. If, however, we are proven wrong when we discuss package 6, or the comments we get to the draft final report are not what we expect, then of course the topic can become live again. I hope that helps. From: McGrady, Paul D. <PMcGrady@taftlaw.com> Sent: Tuesday, June 30, 2020 2:49 PM To: Jeff Neuman <jeff@jjnsolutions.com>; Jeff Neuman <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr <langdonorr@gmail.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6 Importance: High Thanks Jeff. I like that better. Now for the additional question not yet answered which is I was under the impression we were going to have another round of discussion on calls about so-called Closed Generics. Is that not so? If it is so, why are we doing this (highly controversial) “can’t live with” exercise now? I know you and Cheryl don’t want to prematurely cut off discussion, but I’m not sure how else to view this. If I am wrong and there will be no more discussion on so-called Closed Generics, can you please post that to the list ASAP (keeping in mind the clock you guys wound up is ticking). Thanks! Best, Paul From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Tuesday, June 30, 2020 1:40 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Cheryl Langdon-Orr <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6 Thanks Paul. Just to level set, the “Recommendation” states: No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board to effectively ban exclusive use / generic applications. It is the understanding of the Working Group that the ICANN Board intended that its decision to effectively ban Closed Generics applied only to the 2012 round and that it wanted the GNSO to engage in policy discussions regarding the treatment of such strings in subsequent rounds. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree as to how to treat these applications in subsequent rounds. If it works better, we could state: No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board to require applicants for exclusive generic strings to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLD.” effectively ban exclusive use / generic applications. All applicants in 2012 chose either options (a) or (b). It is the understanding of the Working Group that the ICANN Board intended that its decision to effectively ban not allow Closed Generics to proceed in the 2012 round applied only to the 2012 round and that it wanted the GNSO to engage in policy discussions regarding the treatment of such strings in subsequent rounds. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree as to how to treat these applications in subsequent rounds. We can make the corresponding changes in the rationale section. Would this suffice? From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of McGrady, Paul D. Sent: Tuesday, June 30, 2020 1:37 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Cheryl Langdon-Orr <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6 Importance: High Hi Jeff and Cheryl, Your urgent reply on this question would be appreciated. How are we supposed to do this “can’t live with exercise” when this is a live topic? To the extent that you do not remove so-called “closed generics” from Package 6, please take this as my notice that I cannot live with that section as written. And, I believe I am not alone. Can you please respond and let us know if you are leaving it in Package 6? The clock you guys wound up is ticking. Thanks! Best, Paul From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Monday, June 29, 2020 4:41 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Cheryl Langdon-Orr <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Package 6 Hi Jeff & Cheryl, I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6. Is Closed Generics not on the agenda for upcoming calls? If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls? Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round. That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply. There were three options: (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case. Best, Paul Taft / Paul D. McGrady / Partner Taft Stettinius & Hollister LLP 111 E. Wacker Drive, Suite 2800 Chicago, Illinois 60601-3713 Tel: 312.527.4000 • Fax: 312.754.2354 Direct: 312.836.4094 • Cell: 312.882.5020 www.taftlaw.com<http://www.taftlaw.com> / PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com> [https://dg01.redatatech.com/onprem_image_fetch?cid=1016&ep=73a5ab91683433f1e...] Taft Bio<http://www.taftlaw.com/bio/PMcGrady@taftlaw.com> [V-Card Icon] Taft vCard<http://www.taftlaw.com/vcard/PMcGrady@taftlaw.com> Subscribe to our law updates<http://taftlaw.com/news/subscribe> To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. 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. 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I agree with Paul on this. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Tue, Jun 30, 2020, 1:00 PM McGrady, Paul D. <PMcGrady@taftlaw.com> wrote:

Thanks Jeff. No, it doesn’t help because when we last spoke about this topic on the calls you specifically said that we would schedule more time for this topic.

See https://icann.zoom.us/rec/play/tJYkf7it-j03S4DH4gSDA6d7W9S0fK6shHUer6AMzUzgA...

To now learn, with essentially zero time left on Package 6 that you and Cheryl have decided to shut down the conversation is very disturbing. I implore you to excise the so-called “Closed Generics” from Package 6, have the additional phone call promised, and then let’s put it into a future package for review. I simply see no upside to the co-chairs shutting down dialogue on this very important topic, especially using the highly controversial (and no where in the GNSO procedures) “can’t live with” mechanism.

An urgent reply, since your clock is ticking, would be greatly appreciated. In the event that you will not do so, this is my notice that I “cannot live with” Package 6 since the process for Closed Generics is warped (in fact, there appears to be no process, only an ad hoc mechanism that has been effectuated prior to discussion ending). Thanks Jeff!

Best,

Paul

*From:* Jeff Neuman <jeff@jjnsolutions.com> *Sent:* Tuesday, June 30, 2020 2:01 PM *To:* McGrady, Paul D. <PMcGrady@taftlaw.com>; Jeff Neuman < jeff.neuman@comlaude.com>; Cheryl Langdon-Orr <langdonorr@gmail.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* RE: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6

Great on the language, I will file a “Can’t Live with Comment” to change that language.

As far as whether this is a live topic, we will see the comments that we get back on this Cant Live with Exercise. We have been through this topic so many times, and we have seen very little movement by the various sides. Leadership has made the assessment that we are unlikely to reach compromise on this subject and therefore we do not consider it a live issue.

If, however, we are proven wrong when we discuss package 6, or the comments we get to the draft final report are not what we expect, then of course the topic can become live again.

I hope that helps.

*From:* McGrady, Paul D. <PMcGrady@taftlaw.com> *Sent:* Tuesday, June 30, 2020 2:49 PM *To:* Jeff Neuman <jeff@jjnsolutions.com>; Jeff Neuman < jeff.neuman@comlaude.com>; Cheryl Langdon-Orr <langdonorr@gmail.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* RE: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6 *Importance:* High

Thanks Jeff. I like that better. Now for the additional question not yet answered which is I was under the impression we were going to have another round of discussion on calls about so-called Closed Generics. Is that not so? If it is so, why are we doing this (highly controversial) “can’t live with” exercise now? I know you and Cheryl don’t want to prematurely cut off discussion, but I’m not sure how else to view this. If I am wrong and there will be no more discussion on so-called Closed Generics, can you please post that to the list ASAP (keeping in mind the clock you guys wound up is ticking). Thanks!

Best,

Paul

*From:* Jeff Neuman <jeff@jjnsolutions.com> *Sent:* Tuesday, June 30, 2020 1:40 PM *To:* McGrady, Paul D. <PMcGrady@taftlaw.com>; Jeff Neuman < jeff.neuman@comlaude.com>; Cheryl Langdon-Orr <langdonorr@gmail.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* RE: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6

Thanks Paul. Just to level set, the “Recommendation” states:

*No Agreement:* The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board to effectively ban exclusive use / generic applications. It is the understanding of the Working Group that the ICANN Board intended that its decision to effectively ban Closed Generics applied only to the 2012 round and that it wanted the GNSO to engage in policy discussions regarding the treatment of such strings in subsequent rounds. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree as to how to treat these applications in subsequent rounds.

If it works better, we could state:

*No Agreement:* The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board to require applicants for exclusive generic strings to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLD.” effectively ban exclusive use / generic applications. All applicants in 2012 chose either options (a) or (b). It is the understanding of the Working Group that the ICANN Board intended that its decision to effectively ban not allow Closed Generics to proceed in the 2012 round applied only to the 2012 round and that it wanted the GNSO to engage in policy discussions regarding the treatment of such strings in subsequent rounds. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree as to how to treat these applications in subsequent rounds.

We can make the corresponding changes in the rationale section. Would this suffice?

*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *McGrady, Paul D. *Sent:* Tuesday, June 30, 2020 1:37 PM *To:* Jeff Neuman <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr < langdonorr@gmail.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6 *Importance:* High

Hi Jeff and Cheryl,

Your urgent reply on this question would be appreciated. How are we supposed to do this “can’t live with exercise” when this is a live topic? To the extent that you do not remove so-called “closed generics” from Package 6, please take this as my notice that I cannot live with that section as written. And, I believe I am not alone. Can you please respond and let us know if you are leaving it in Package 6? The clock you guys wound up is ticking. Thanks!

Best,

Paul

*From:* McGrady, Paul D. <PMcGrady@taftlaw.com> *Sent:* Monday, June 29, 2020 4:41 PM *To:* Jeff Neuman <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr < langdonorr@gmail.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Package 6

Hi Jeff & Cheryl,

I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6. Is Closed Generics not on the agenda for upcoming calls? If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls?

Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round. That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply. There were three options: (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case.

Best,

Paul

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Thanks Kathy – I appreciate your point of view. I too look forward to public comment. Even so, we were promised more air time for this very important topic and now that additional time is being yanked back at the very last minute while in conjunction with the deployment of a “can’t live with” mechanism unique to this WG. This is not the way this important topic should be handled. Hopefully, the Co-chairs see the wisdom in giving this the airtime it was promised and deserved and I hope that kindly people, such as yourself, comes to that conversation open minded even if they don’t know what else can be said. Best, Paul From: Kathy Kleiman <kathy@kathykleiman.com> Sent: Tuesday, June 30, 2020 3:07 PM To: McGrady, Paul D. <PMcGrady@taftlaw.com>; Jeff Neuman <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr <langdonorr@gmail.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6 Hi Paul, Anne, Jeff, and Cheryl, This section of Package 6 reflects what Jeff and Cheryl shared with the GAC during the ICANN meeting: that the issue is going out for further public input and comment. After extensive discussion, I'm not sure what else there is to say. This section tracks the extensive discussion of this WG over weeks, months and years. We also discussed it extensively in May. I look forward to hearing what people outside the WG have to share and guidance they might be able to give Best, Kathy ----- Original Message ----- From: "McGrady Paul D." <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> To: "Jeff Neuman" <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, "Cheryl Langdon-Orr" <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Sent: Tue, 30 Jun 2020 17:36:39 +0000 Subject: [Gnso-newgtld-wg] Jeff & Cheryl- an urgent reply would be appreciated / RE: Package 6 Hi Jeff and Cheryl, Your urgent reply on this question would be appreciated. How are we supposed to do this “can’t live with exercise” when this is a live topic? To the extent that you do not remove so-called “closed generics” from Package 6, please take this as my notice that I cannot live with that section as written. And, I believe I am not alone. Can you please respond and let us know if you are leaving it in Package 6? The clock you guys wound up is ticking. Thanks! Best, Paul From: McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Sent: Monday, June 29, 2020 4:41 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Cheryl Langdon-Orr <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Package 6 Hi Jeff & Cheryl, I was under the impression that we were going to discuss Closed Generics again, but I see it is Package 6. Is Closed Generics not on the agenda for upcoming calls? If it is, how can we be doing the so-called “Can’t live with” exercise when the topic isn’t closed on the calls? Also, I see that the text indicates that the WG agrees the Board instituted a ban on them in the last round. That is not what the Board resolution says – and in fact there was much discussion on the calls and chat about how “ban” does not apply. There were three options: (1) make a change to non-exclusive access, (2) maintain & defer to the next round, or (3) withdraw. Is there a way to make that section reflect the actual facts before we have to undertake the so-called “can’t live with” exercise? The way it is written now essentially takes the starting position of the part of the WG that wants to censor closed generics and implies everyone agrees with it. That isn’t the case. Best, Paul Taft / Paul D. McGrady / Partner Taft Stettinius & Hollister LLP 111 E. Wacker Drive, Suite 2800 Chicago, Illinois 60601-3713 Tel: 312.527.4000 • Fax: 312.754.2354 Direct: 312.836.4094 • Cell: 312.882.5020 www.taftlaw.com<http://www.taftlaw.com> / PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com> Taft Bio<http://www.taftlaw.com/bio/PMcGrady@taftlaw.com> Taft vCard<http://www.taftlaw.com/vcard/PMcGrady@taftlaw.com> Subscribe to our law updates<http://taftlaw.com/news/subscribe> To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. 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.