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mp3/ Recordings, Attendance, AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 30 November 2017 04:00 UTC
by Nathalie Peregrine Nov. 30, 2017

Nov. 30, 2017

Dear all, Please find the attendance of the call attached to this email. The MP3, Adobe Connect recording and Adobe Connect chat below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 30 November 04:00 UTC. Attendance of the call is posted on agenda wiki page: https://community.icann.org/x/UQxyB Mp3: https://audio.icann.org/gnso/gnso-rpm-review-30nov17-en.mp3<https://urldefense.proofpoint.com/v2/url?u=http-3A__mailer.samanage.com_wf_…> Adobe Connect recording: https://participate.icann.org/p1uab8g5ef3/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Main wiki page for the working group: https://community.icann.org/x/wCWAAw Thank you. Kind regards, Terri Adobe Connect chat transcript for 30 November 2017: Terri Agnew:Welcome to the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group on Thursday 30 November 2017 at 04:00 UTC for 90 minutes. Terri Agnew:Wiki agenda page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Heather Forrest:Hi Terri! Lovely to hear your voice Heather Forrest:Hi J Scott! George Kirikos:Perhaps prioritize input from Asia/Pacific folks, then? George Kirikos:(i.e. if Heather or others can't make the normal time) zhou heng:Hi, George George Kirikos:Welcome, Zhou. Kristine Dorrain - Amazon Registry Services:I made it! Pre-apologize for any mayhem in the background. It's bedtime at my house. :/ Terri Agnew:everyone can scroll themselves George Kirikos:Alternatively, if they have new questions to add to the existing ones (and can't make the normal calls). Maxim Alzoba (FAITID ):Hello All zhou heng:Hi~ George Kirikos:They can probably jump to any question, instead of just #1. Mary Wong:We have several APAC-based members on this call, yes. Heather Forrest:I appreciate the opportunity to raise points but don't have immediate questions re Q1 George Kirikos:Did you have new questions, Heather (and others who might not be able to attend the other time slot), that aren't already on the list? George Kirikos:Question #1 appears to be about "closure". Justine Chew:Do I understand correctly that assuming the WG has no more input in terms of suggestions for refinement that the Co-Chairs will then work with staff to edit the Original Charter questions? And the WG will have another opportunity to comment on those edits? Philip Corwin:Initial inquiry would seem to be how many, if any, default respondents have ever filed a reply and, if so, what the average time after default determination was Mary Wong:@Justine, if no one suggests changes or edits, then the questions will stay the way they are worded, and be retained for the review. Justine Chew:@Mary, how does one suggest editorial changes then, if one wished to? Philip Corwin:Agree with J Scott and Kristine. We need facts before making any judgments. Maxim Alzoba (FAITID ):even 6 months should be enough. I think we need to know the reason for inclusion of this fperiod Kristine Dorrain - Amazon Registry Services:Again, all the other subteams started with "is it working for its intended purpose, is it having unintented effects?" Kristine Dorrain - Amazon Registry Services:That's a good starting point. We don'th have to write it out every time, but it's the most neutral lens we could come up with in previous subteams George Kirikos:I think there's no time limit because there's nothing "pressing" --- i.e. there's no domain transfer in the URS, so there's no real issue about allow the reply at any point. George Kirikos:*allow=allowing Mary Wong:From what we can tell (staff), the relative comparison here is either with the response periods for the UDRP (on which the URS was based) and/or on the work of the STI following the initial work of the IRT. Kristine Dorrain - Amazon Registry Services:Right George. I think that's the intent. I think someone is suggesting, by this question, that perhaps there is no certainty for TM holders. David McAuley:Are there participants who were present when URS was formulated with these default challenge procedures/deadlines – was there a reason for it back then? Greg Shatan:“If so, why and based on what data/evidence?” George Kirikos:i.e. if the URS respondent makes a reply, it's not as if the Complainant gets to make another submission. Kristine Dorrain - Amazon Registry Services:+1Greg Mary Wong:@Greg, we may be able to extract the data on numbers, but not sure we can track the "why". George Kirikos:@Kristine: right, it's the issue of "getting closure" David McAuley:thanks J. Scott - not on phone Maxim Alzoba (FAITID ):1 year is equal to the period when ythe domain redirects to the website "it was lost to URS", I think Scott Austin:+1 David What was the legislative history that prompted the provision in the first place. Mary Wong:@Scott, @David, we can look it up but yes, it is likely traceable to the work of the STI, building on the initial proposal from the IRT. George Kirikos:Does the parked page change if/when a default determination is made? (giving the respondent even more info as to their ability to reply, etc.) David McAuley:thanks @Mary George Kirikos:+1 Kathy. Perhaps it needs to be posted not only on the provider's page, but on the suspension page, if it's not already been done so. David McAuley:Thanks Kathy - Heather Forrest:+1 Kristine - a return to the original purpose is appropriate in my view. Kathy Kleiman:Has it been used; do Respondents know this Reply option is available? David McAuley:agree with Phil - nice to know usage rates of provisions under scrutiny Heather Forrest:Picking up on Phil's comment (and indeed Kristine's), are we able to develop a formula for all topics investigated? Ask the following baseline questions: 1) has it been used? 2) what was original purpose and is this being fulfilled? Maxim Alzoba (FAITID ):the domain would stuck in this state for longer then a year Kristine Dorrain - Amazon Registry Services:I support that Heather....that supports lumping like questions together. Berry Cobb:@George. from what’s I’ve seen, the domain no longer resolves when suspended. Justine Chew:would data collected be able to show how many respondents defaulted exclusively because they weren't aware of the complaint (ie only at point of domain suspension) vs defaulters who simply have not bothered to respond and then take advantage of the time extension ability? Heather Forrest:We are going to have difficulty with agreeing on the precise wording of these questions (as J Scott has aptly noted) so I wonder if we can make it easier by bringing the enquiry up to a standard set of questions applied to a list of topics for review Kristine Dorrain - Amazon Registry Services:I think that's the unicorn, Justine. Defaulting respondents almost never show up. so we can't know why they defaulted. George Kirikos:@Berry: perhaps that's part of the problem, then Heather Forrest:Exactly my thinking, well articulated J Scott - thank you Philip Corwin:Council has instructed is that our policy recommendations should be data based (that's why we are developing surveys on claims and sunrise). So our starting point on all questions should be focusing on available data from actual operation of new gTLDs. Expectations when the policy was created may not be borne out in reality. Maxim Alzoba (FAITID ):also it would be useful to know . how many ex-owners managed to prevail after being defaulted based on provided materials (first defaulted and only then provided it) Kristine Dorrain - Amazon Registry Services:Yes, J. Scott and it's not so different. We've grouped qusetions before. Kristine Dorrain - Amazon Registry Services:I support that. George Kirikos:@Kristine: all their email addresses would be on file. They could be surveyed. Heather Forrest:On grouping, I feel there's much work to be done there (for example, Qs 18-21 all seem to me to be various versions of each other) Kristine Dorrain - Amazon Registry Services:George....nearly 100% bounceback rate. Kristine Dorrain - Amazon Registry Services:AND you'd probably need to subpoena the providers for confidential data. George Kirikos:Bad WHOIS? I thought the email addresses had to be verified at registration time? Kristine Dorrain - Amazon Registry Services:Now. Kristine Dorrain - Amazon Registry Services:since 1999, nope. Justine Chew:@Kristine, I am assuming that if defaulters do use the time extension ability they would need to "plead" ignorance in order to justify "getting" the extension. If not then it seem unfair to Complainant. Mary Wong:@George, on the issue of resolving domains, the IRT noted that the domain "may" resolve back to the original pending the Examination outcome, and the STI recommended that the domain "shall" resolve to the original if the respondent files a default answer. Heather Forrest:I'm taking notes as well and can circulate if needed Kristine Dorrain - Amazon Registry Services:And I apologize for referenceing the 1999 time period. We're not talking UDRP. Kristine Dorrain - Amazon Registry Services:I withdraw my comment David McAuley:Same issue - data needed Maxim Alzoba (FAITID ):@George, sometimes e-mails and phones verified and later change. or spam filtefilters could kill mail from URS providers Heather Forrest:Response fee - original purpose? being met? reason for change? George Kirikos:@Mary: I was asking more about after the default determination,, i.e. after the domain gets suspended, it could have a page saying why it was suspended, and the procedure the registrant can use (filing a URS response), etc. (in multiple languages) Kristine Dorrain - Amazon Registry Services:Yes, J Scott, I do like that. :) Heather Forrest:I think this is going to be much easier to agree upon and streamline our efforts Mary Wong:@George, thanks - I think right now the suspended domain simply displays an informational page about the URS result/ Kristine Dorrain - Amazon Registry Services:https://urldefense.proofpoint.com/v2/url?u=http-3A__lufthansa.vip_… George Kirikos:Thanks Mary. Kristine Dorrain - Amazon Registry Services:See the example above George Kirikos:Great example, Kristine. David McAuley:I think the questions Heather listed for response fee are good, would add only 'why 15?' Kristine Dorrain - Amazon Registry Services:The same static page for all providers so it's not specific to the domain name/case. Zhou Heng:Thanks George Kirikos:That could be improved by (1) making it multilingual (2) linking to the decision, etc Zhou Heng:@ George +1 Heather Forrest:1) Has it been used? 2) What was the original purpose and is it being fulfilled? 3) bearing in mind the original purpose, have there been any unintended consequences? Heather Forrest:4) what changes could better align the mechanism with the original purpose/facilitate it to carry out its purpose? Maxim Alzoba (FAITID ):4)how many managed to prevail Claudio:those are perfect Heather Kristine Dorrain - Amazon Registry Services:Yes, I think that's right. the key is to figure out the topic. Most of the questions are actually "proposed solutions" or someone's wishlist. David McAuley:one use would lead to a 'yes' on has it been used, though. Maybe ask trending use is up or down? Heather Forrest:@Kristine - exactly my concern ("proposed solutions"), which is why I think we need a more objective way of asking the questions and soliciting info Justine Chew:@Heather, re your 2) should we be asking what the original purpose is or actually state what it is? Zhou Heng:There are only 31 URS decisions in ADNDRC. Heather Forrest:My proposed approach would not eliminate the detail/context (this could sit in the background, and I am confident that we will elicit detail in the responses to the questions) David McAuley:Fair points Kathy - can't lose sight of that. Zhou Heng:I think the fee is a main reason for such consiquence. Heather Forrest:@Justine - I think we need to go back to the documentation to identify what the stated purpose was supposed to be Claudio:also are assuming the original purpose was valid? what if the original purpose was well intended, but misguided from a policy perspective? Heather Forrest:In other words, let's not work on assumptions. Let's be sure we're all operating on what was ddocumented Justine Chew:@Heather, great, thanks for the clarification. Kristine Dorrain - Amazon Registry Services:Agree with Heather. We need to draft these charter questions with the research in mind, but it's not helpful to wait for research. Heather Forrest:(ha ha Claudio and I are having a mind meld re assumptions) Mary Wong:@Heather, staff will go back to the IRT and STI reports, and the AGB, to discern origin and reasoning as far as we can. George Kirikos:*6 to unmute/mute Claudio:so funny! Terri Agnew:@Zhou, your mic is not active. Kristine Dorrain - Amazon Registry Services:yes David McAuley:yes Zhou Heng:Sorry for the micro Kathy Kleiman:yes Michael Flemming:yes Terri Agnew:to activate you mic, select the telephone icon and follow the prompts Heather Forrest:Thanks Mary for doing that background checking - I believe it's very important that we don't make assumptions about what happened before and work with what was actually documented. Zhou Heng:I will try to type Justine Chew:I had a question regarding use of URS but not necessarily for where we're at now. Terri Agnew:@Zhou, please let me know if a dial out on the telephone is needed George Kirikos:The telephone bridge is more reliable (not sure if there are dial-in numbers for China). Maxim Alzoba (FAITID ):since the website to which domain redirects after dbeing lost in URS does not give any advice what to do .and domain is stuck for a year - it seems to be logical to allow response during the same year David McAuley:can't hear Petter Justine Chew:My question is for URS complaints which are ultimately withdrawn, I would like to understand why they were withdrawn, if that's possible. Kristine Dorrain - Amazon Registry Services:Can't hear Petter Kristine Dorrain - Amazon Registry Services:Justine, usually because there was a settlement. Mary Wong:@Justine, understood but we won't be able to get that from the data :( Justine Chew:@Kristine, observed by whom? Zhou Heng:According to statics in ADNDRC, there are only 31 URS decisions made. As I have talked with many brand owners in China, I sincerely believe that the fee is most important reason for this situation. Kathy Kleiman:@Staff: If it has not been used, why not? (Kathy, J. Scott, Heather, others) Zhou Heng:https://urldefense.proofpoint.com/v2/url?u=https-3A__www.adndrc.org_mt… George Kirikos:@Mary: perhaps one could use the WHOIS history to see if the ownership changed after the URS was withdrawn (implying the settlement). George Kirikos:e.g. via DomainTools, etc. Mary Wong:@George, we could, but that still wouldn't prove anything George Kirikos:Or, even current WHOIS, compared to WHOIS at time of complaint. Maxim Alzoba (FAITID ):please read my previous note (I can not use mic) Mary Wong:As in, it could be one of several reasonable inferences, but not clear proof of a single explanation George Kirikos:@Mary: agreed, it doesn't "prove" it, but implied something transpired......evidence vs. proof. :-) Heather Forrest:Thanks for your patience - I've said my 2c and happy to help with carrying forward as needed. Maxim Alzoba (FAITID ):Scott think there are not many of us and the responses needs do be collected via the poll Maxim Alzoba (FAITID ):yes George Kirikos:That would add a bunch of new columns to the document. Heather Forrest:I think at this point we should just agree/or not to put this idea to the bigger call Heather Forrest:rather than poll the concept in specifics here Justine Chew:@Mary, thanks -- you have just answered substantially my earlier question about editing the original charter questions Kristine Dorrain - Amazon Registry Services:I do not support re-hashing every section of the policy. Kristine Dorrain - Amazon Registry Services:the charter questions are terrible but they are guidance as to where we should look Mary Wong:OK thanks J Scott - got it Heather Forrest:J Scott's summary is in line with my idea Kristine Dorrain - Amazon Registry Services:They focus us a bit Mary Wong:And noting that Kristine seems to be saying/supporting the same idea Maxim Alzoba (FAITID ):we will spend two years there if we check every bit of policy Justine Chew:+1 Maxim George Kirikos:Rebecca is in the Adbobe. George Kirikos:*Adobe Rebecca L Tushnet:My phone stopped working but I managed to get on Rebecca L Tushnet:I'm agnostic but willing to go along with the attempt. Justine Chew:My tablet interface doesn't have poll feature. So please take it that I have green check next to my name. Michael Flemming:we are good to put our hands down? Justine Chew:Good point, @Kathy Kristine Dorrain - Amazon Registry Services:I support organizing the questions in batches Claudio:I agree with Kathy the issues can be organized in that manner Kristine Dorrain - Amazon Registry Services:And in "chronological" order of the URS David McAuley:audio cutting out here - am I alone on that Mary Wong:I have a staff observation on Kathy's point, if I may. Heather Forrest:Audio works for me, David (and if it works here in Tasmania, I suspect it works for all!) :) J. Scott Evans:Mary I will call on you next, then phil Terri Agnew:@David - no audio issues. Please let me know if a dial out on telephone is needed David McAuley:Thanks Heather David McAuley:thanks Terri - don't want to use phone, full house with guests and all asleep here (closing in on midnight) Terri Agnew:is your connectivity bar (top right hand on Adobe) showing 5 bars? Kristine Dorrain - Amazon Registry Services:Oh, yes, Agree!!!! Kristine Dorrain - Amazon Registry Services:I do agree with Brian, Susan, et. al on that. David McAuley:yes - five bars - only cuts out intermittently but at times a lot David McAuley:I'm ok, thanks terri Maxim Alzoba (FAITID ):most European participants sleep happily now .we need to allow them to participate in discussion Terri Agnew:you can also try changing browsers, another thing to try - Check you plug in’s: https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_icannactest… David McAuley:ok, may do that Heather Forrest:Can we put our ticks down now? It seems we have solid majority for putting the concept to the broader call J. Scott Evans:ticks down Heather Heather Forrest:(hooray, old tick!) J. Scott Evans::-) George Kirikos:Need to use last names, as there's more than one Phil. J. Scott Evans:Corwin George Kirikos:(right, for the transcriber, I meant) George Kirikos:Unless they know folks by voice like we do. Heather Forrest:Follow-up questions will flow logically from the 4 (or however many) overarching questions Heather Forrest:there is no need in my view to try to agree on follow-ups now (or we'll end up right back where we are currently arguing over details) Kristine Dorrain - Amazon Registry Services:Agree Heather.... Kristine Dorrain - Amazon Registry Services:We need to stay out of the weeds and work on organizing. Heather Forrest:I am happy to follow up with refining what is sent to the wider group, if that's helpful Mary Wong:@J Scott, staff will send the note to the list. Scott Austin:Would be more efficient if the table included specific rules implicated in each question Mary Wong:Thank you, Heather. Heather Forrest:Send me a draft and I'll be pleased to review it and get it back to you pronto Mary Wong:@Heather, sure thing Claudio:can we consider the options of eventually forming subteams, not as decision making bodies, but to help carry the work forward Mary Wong:We will send a note to the list in the meantime about the proposal on the approach, and send Heather a draft of the specifics Heather Forrest:Thank you enormously for the APAC-timed call - very much appreciated! Justine Chew:ditto (to Heather's tq) George Kirikos:Will the final call in Dec be the APAC time slot? George Kirikos:(last call is Dec 21, not Dec 28, due to holidays) Heather Forrest:Thanks J Scott! Maxim Alzoba (FAITID ):bye all Julie Hedlund:@George: Yes, as previously agreed, the last call in the month will be APAC time. George Kirikos:Otherwise, the next APAC call might be end of January, which they might not like. David McAuley:thanks J. Scott, and all, good bye Zhou Heng 2:bye George Kirikos:Thanks Julie. Kathy Kleiman:Bye All Terri Agnew:next call: Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group is scheduled for Wednesday, 06 December 2017 at 18:00 UTC for 90 minutes. George Kirikos:Bye folks. Mary Wong:THanks J Scott and everyone Michael Flemming:Thank you! Philip Corwin:Bon soir Zhou Heng 2:sorry for my mic Monica Mitchell:thank you. bye all

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Re: [gnso-rpm-wg] [Ext] RE: URS Charter Question Table/Draft Agenda for 30 November Call
by Julie Hedlund Nov. 29, 2017

Nov. 29, 2017

Hi Susan, Thanks so much for your request to allow 2 Working Group meetings to finalize the table and staff has noted it, as well as that it was also requested by Brian. In addition, staff notes the request to circulate the updated table as quickly as possible, with amble time for the WG members to review before next week’s call. Kind regards, Julie From: Susan Payne <susan.payne(a)valideus.com> Date: Wednesday, November 29, 2017 at 10:02 AM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: [gnso-rpm-wg] URS Charter Question Table/Draft Agenda for 30 November Call All Thanks to Julie and the other staff members for producing and circulating this new table for the charter questions. I would like to reiterate and support the comments Brian Beckham made last week (21 November). Like Brian, I will not be able to join the call this week since the “Asia-friendly” rotation is not at all Europe-friendly. This charter question table, which has only just been circulated, captures various comment and discussion but generally has not reached the point where it could be considered to be suggested refinement text for the charter question. So, based on the comment which has been captured, further work is clearly required to turn this into suggested refinement text that the WG can agree on. Given the timing, we have not been able to advance this over email before the call, and I would like to repeat Brian’s request that in the circumstances we allow at least 2 working group calls to finalise this charter text. It would also be extremely helpful, for those of us not on the call, if any proposed text that the group does coalesce around could please be circulated in an updated version of the table as soon as possible after the call. This will allow work to progress on the list prior to next week’s call. Many thanks Susan Payne Head of Legal Policy | Valideus Ltd 28-30 Little Russell Street London, WC1A 2HN, United Kingdom E: susan.payne(a)valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: 28 November 2017 22:12 To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] URS Charter Question Table/Draft Agenda for 30 November Call Dear all, Per the action item below from the Working Group for staff from the call held on 15 November, please see the attached table for your review and discussion during our call on Thursday, 30 November (29 November for some time zones). Action Item: Staff will create a table with columns for the questions; proposed edits/comments/clarifications; provide context; new questions. Add a reference to the relevant section of the URS and link to the URS. For example: Column 1 is Original Charter Questions (the grouping as in the ICANN60 slides can provide a useful categorization to break up the table meaningfully); Column 2 can be Suggestions for Refinement; Column 3 can be Context/Additional Background (or similar); and Column 4 Data Collection Suggestions. In addition, please see below the draft agenda for the call: Draft Agenda: 1. Roll call/updates to SOI 2. Review of the table of the charter questions, including the feedback from ICANN60, subsequent feedback, and proposed new questions 3. Next steps/next meeting Best regards, Julie Julie Hedlund, Policy Director

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FOR INFORMATION/DISCUSSION: Public Comment now open on New Sections of Competition, Consumer Protection/Trust Review Team report
by Mary Wong Nov. 29, 2017

Nov. 29, 2017

Dear all, Following up on the discussion this Working Group held with members of the Competition, Consumer Protection & Consumer Trust (CCT) Review Team at ICANN60 in Abu Dhabi, please note that a public comment period has now been opened on the new sections of the CCT Review Team report that were described at that session: https://www.icann.org/public-comments/cct-recs-2017-11-27-en. The new sections for which the CCT Review Team is seeking input include, as you may recall, new text on the RPMs. The public comment period closes on 8 January 2018, following which the CCT Review Team will complete its Final Report. Whether you/your groups wish to submit comments in that capacity, or whether this Working Group wishes to discuss the new RPM sections or submit a comment, we thought we should draw your attention to this development. You can find the transcript and recording of our Working Group’s joint session with the CCT Review Team at ICANN60 here: https://schedule.icann.org/event/CbK7/gnso-review-of-all-rights-protection-… Thanks and cheers Mary

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Re: [gnso-rpm-wg] URS Charter Question Table/Draft Agenda for 30 November Call
by Susan Payne Nov. 29, 2017

Nov. 29, 2017

All Thanks to Julie and the other staff members for producing and circulating this new table for the charter questions. I would like to reiterate and support the comments Brian Beckham made last week (21 November). Like Brian, I will not be able to join the call this week since the “Asia-friendly” rotation is not at all Europe-friendly. This charter question table, which has only just been circulated, captures various comment and discussion but generally has not reached the point where it could be considered to be suggested refinement text for the charter question. So, based on the comment which has been captured, further work is clearly required to turn this into suggested refinement text that the WG can agree on. Given the timing, we have not been able to advance this over email before the call, and I would like to repeat Brian’s request that in the circumstances we allow at least 2 working group calls to finalise this charter text. It would also be extremely helpful, for those of us not on the call, if any proposed text that the group does coalesce around could please be circulated in an updated version of the table as soon as possible after the call. This will allow work to progress on the list prior to next week’s call. Many thanks Susan Payne Head of Legal Policy | Valideus Ltd 28-30 Little Russell Street London, WC1A 2HN, United Kingdom E: susan.payne(a)valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: 28 November 2017 22:12 To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] URS Charter Question Table/Draft Agenda for 30 November Call Dear all, Per the action item below from the Working Group for staff from the call held on 15 November, please see the attached table for your review and discussion during our call on Thursday, 30 November (29 November for some time zones). Action Item: Staff will create a table with columns for the questions; proposed edits/comments/clarifications; provide context; new questions. Add a reference to the relevant section of the URS and link to the URS. For example: * Column 1 is Original Charter Questions (the grouping as in the ICANN60 slides can provide a useful categorization to break up the table meaningfully); * Column 2 can be Suggestions for Refinement; * Column 3 can be Context/Additional Background (or similar); and * Column 4 Data Collection Suggestions. In addition, please see below the draft agenda for the call: Draft Agenda: 1. Roll call/updates to SOI 2. Review of the table of the charter questions, including the feedback from ICANN60, subsequent feedback, and proposed new questions 3. Next steps/next meeting Best regards, Julie Julie Hedlund, Policy Director

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URS Charter Question Table/Draft Agenda for 30 November Call
by Julie Hedlund Nov. 28, 2017

Nov. 28, 2017

Dear all, Per the action item below from the Working Group for staff from the call held on 15 November, please see the attached table for your review and discussion during our call on Thursday, 30 November (29 November for some time zones). Action Item: Staff will create a table with columns for the questions; proposed edits/comments/clarifications; provide context; new questions. Add a reference to the relevant section of the URS and link to the URS. For example: Column 1 is Original Charter Questions (the grouping as in the ICANN60 slides can provide a useful categorization to break up the table meaningfully); Column 2 can be Suggestions for Refinement; Column 3 can be Context/Additional Background (or similar); and Column 4 Data Collection Suggestions. In addition, please see below the draft agenda for the call: Draft Agenda: 1. Roll call/updates to SOI 2. Review of the table of the charter questions, including the feedback from ICANN60, subsequent feedback, and proposed new questions 3. Next steps/next meeting Best regards, Julie Julie Hedlund, Policy Director

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REMINDER re: Clarification re: Timing of Working Group Weekly Calls
by Julie Hedlund Nov. 24, 2017

Nov. 24, 2017

Dear all, Just a reminder that unless there are objections the meeting times will change to 1800 UTC and 0400 UTC due to the change from daylight saving time to standard time as noted below. According to this suggestion the next call will be at 0400 UTC on Thursday, 30 November. Kind regards, Julie From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Thursday, November 16, 2017 at 12:19 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] Updates RE: Clarification re: Timing of Working Group Weekly Calls Dear all, Just a few updates. First, the meeting on Wednesday, 22 November will be canceled to avoid conflicts with those members in the US who may be traveling for the US Thanksgiving holiday. Second, if we move the meeting time to 1800 UTC then to be consistent we should move the rotating APAC time for every 4th meeting currently at 0300 UTC to 0400 UTC. Thus, we would like to hear from WG members if they have any concerns about moving the meeting times one hour ahead (1700 to 1800 UTC, and 0300 to 0400 UTC), noting that the next meeting on Thursday, 30 November is the APAC rotation. Kind regards, Julie From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, November 15, 2017 at 2:17 PM To: "BECKHAM, Brian" <brian.beckham(a)wipo.int>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: [gnso-rpm-wg] [Ext] RE: Clarification re: Timing of Working Group Weekly Calls Thanks for the feedback Brian and we do note the challenges. If I recall correctly (and others can correct me if I am wrong) I think the original time was the consensus of a Doodle poll. As always when using these polls while the time may have worked for a majority of respondents, it is unlikely that it worked for everyone. Kind regards, Julie From: "BECKHAM, Brian" <brian.beckham(a)wipo.int> Date: Wednesday, November 15, 2017 at 2:10 PM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: Clarification re: Timing of Working Group Weekly Calls Thanks Julie, >From Europe, moving the start of these calls from 6pm to 7pm (ending at 8:30 pm) makes consistent participation more difficult, though we will do our best. If anything, moving the calls an hour in the other direction would be better. Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Wednesday, November 15, 2017 7:50 PM To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] Clarification re: Timing of Working Group Weekly Calls Dear Working Group members, Staff would like to point out that following the time change from daylight to standard time, it has been customary to change the time in UTC in order to preserve the original time of the meetings so that they stay at the same time as they were for most zones. Thus, although today’s call (15 November) was set at 1700 UTC, if we followed our usual custom it would revert to 1800 UTC in order that the time remains at 1000 PST, 1300 EST, etc. Note that some Working Group members did alert us to the fact that they assume the call would stay the same time and that they have conflicts if it is an hour earlier (as it was today). Unless there are objections, staff would like to suggest that we follow that custom for future meetings of this Working Group, by which the next call would be at 1800 UTC on 22 November for 90 minutes. Kind regards, Julie Julie Hedlund, Policy Director

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Re: [gnso-rpm-wg] Availability of Court for Domain Name owners challenging a URS decision -- false assumption?
by socata Nov. 23, 2017

Nov. 23, 2017

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Re: [gnso-rpm-wg] [Ext] RE: Action Items from 15 November Working Group Call
by Julie Hedlund Nov. 21, 2017

Nov. 21, 2017

Hi Brian, Thank you for your helpful comments and suggestions. Your request is noted. Kind regards, Julie From: "BECKHAM, Brian" <brian.beckham(a)wipo.int> Date: Tuesday, November 21, 2017 at 5:09 AM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: Action Items from 15 November Working Group Call Thanks Julie, all, As I will not likely make the next call, given inter alia the timing, I would like to recall for staff, the co-chairs, and other WG members that (as was also made clear both in Abu Dhabi and on the last call) I have a range of comments on the URS charter questions. I believe others do as well. I understand that this is a work in progress, and that the chart staff is to prepare will try to capture comments made in Abu Dhabi and on the last call, so that is already helpful and very much appreciated! Noting the above, I would like to hereby request that no official WG decision is made as to the finalization of the URS charter questions until the WG has had a chance to meaningfully provide input. More specifically, if it is not possible to coalesce WG feedback via email, I would suggest that this is likely to require at least two full WG calls. Thanks for noting. Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Thursday, November 16, 2017 8:55 PM To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] Action Items from 15 November Working Group Call Dear all, The action items noted by staff from the Working Group call held yesterday, Wednesday, 15 November, are as follows: Actions Items: 1. Staff will recirculate slides from the first URS session at ICANN60. 2. Staff will create a table with columns for the questions; proposed edits/comments/clarifications; provide context; new questions. Add a reference to the relevant section of the URS and link to the URS. For example: Column 1 is Original Charter Questions (the grouping as in the ICANN60 slides can provide a useful categorization to break up the table meaningfully); Column 2 can be Suggestions for Refinement; Column 3 can be Context/Additional Background (or similar); and Column 4 Data Collection Suggestions. The notes from the call and the actions have been posted to the Working Group wiki space, together with the call recording, transcript and Adobe Connect chat and attendance records. Best regards, Julie Julie Hedlund, Policy Director

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Availability of Court for Domain Name owners challenging a URS decision -- false assumption?
by George Kirikos Nov. 21, 2017

Nov. 21, 2017

Hi folks, I brought up this topic on Wednesday's RPM PDP call, and Kathy suggested that I put the issue in writing for the benefit of the broader working group that hadn't attended the call. There's been an implicit and fundamental assumption that the URS (and similarly, the UDRP) doesn't interfere with the existing legal rights of a TM holder or a domain name registrant, and that either party can bring an action in court, heard on a de novo basis, to challenge the outcome of a URS (or a UDRP), either before, during or after the ADR procedure devised by ICANN. The ADR was intended to complement existing law, and wasn't intended to interfere with or replace existing law. Is that assumption correct in all jurisdictions worldwide? If not, what must be done to correct the situation? (since this violates the fundamental "bargain" that led to the establishment of those policies in the first place) This is not some theoretical concern. Consider the Yoyo.email case, described at: https://www.out-law.com/en/articles/2015/december/ruling-means-uk-courts-wi… https://www.lexology.com/library/detail.aspx?g=b19a14df-9dc5-494e-bb6e-6351… https://www.lexology.com/library/detail.aspx?g=4f1b77cc-8474-4e9f-b02d-f654… http://www.bailii.org/ew/cases/EWHC/Ch/2015/3509.html "31. My conclusions on the application to strike out the Claim are: 1) adopting the reasoning of Ms Proudman in Patel drives me to hold that on a proper construction of the UDRP clause 4k does not give rise to a separate cause of action in favour of the claimant; 2) nor does it afford any jurisdiction to this Court to act as an appeal or review body from the Decision;" While the Yoyo.email court complainant is not a sympathetic party to some, the above decision attacks the very foundation of the URS (and UDRP). This should be a high priority for remedial policymaking, as it was an unintended consequence that is now having real-world effects. While the above is in the context of a court challenge to a UDRP decision against a domain name registrant, the exact same analysis applies to the URS. Thus, now is the appropriate time to tackle the issue (and kill two birds with one stone). This jurisprudence appears limited to the UK, and perhaps Australia where apparently a few other cases may have encountered the same problem (as has been discussed in the IGOs PDP where I and a few other members of this RPM PDP first discussed the issue). The cause of the problem is easy to identify. If there was no URS (or UDRP) policy in place what would be the "law" and the procedural path to justice? Clearly, a trademark holder would have a "cause of action" under trademark law against a domain name registrant. The TM holder would file a lawsuit (as plaintiff) against the domain name registrant (as defendant). With the URS (or UDRP), the procedural path to justice is altered in the event a TM holder uses it and is successful under the ADR. To challenge the outcome of the ADR, the domain name registrant now has the role of the plaintiff in court, and the TM holder is the defendant. The parties have switched their prior positions as plaintiffs and defendants, and it turns out that might cause a significant problem in some jurisdictions. i.e. it might make a difference which party to the dispute files in court as plaintiff in some jurisdictions. That UK court is saying that ICANN can't simply conjure a "cause of action" out of thin air. If the domain name registrant brings a case in that UK court, that court is saying "you have no cause of action, ICANN can't create one for you, bye bye, case dismissed." Now, under the ACPA in the USA, there is a clear cause of action for domain name registrants that they can follow, so it's not a problem. And other courts in other jurisdictions have heard cases similarly brought by a domain name registrant challenging ADR procedures devised by ICANN. If we look at the language of URS itself: http://newgtlds.icann.org/en/applicants/urs/procedure-01mar13-en.pdf "13. Other Available Remedies The URS Determination shall not preclude any other remedies available to the appellant, such as UDRP (if appellant is the Complainant), or other remedies as may be available in a court of competent jurisdiction. A URS Determination for or against a party shall not prejudice the party in UDRP or any other proceedings." It's clear that in some jurisdictions, there appears to be that exact "prejudice" to the domain name registrant, who now becomes a "plaintiff with no cause of action". Without the procedure, they would have been a "defendant with available defenses to the cause of action brought by the trademark holder." The ADR procedure itself, by switching who becomes plaintiff and who becomes defendant in a lawsuit, is interfering with the rights those parties had before the policies were adopted by ICANN. What could be done to restore the proper balance? (1) the URS (and/or UDRP) could be eliminated entirely (or made optional for the domain name owner), or (2) in the event a court refuses to hear a case brought by the domain name owner challenging a URS (or UDRP) ruling, then the URS (or UDRP) decision needs to be set aside, and the TM owner can instead file a TM dispute themselves directly in real court if they want to take the dispute further. Paul McGrady suggested a third option on Wednesday, namely: (3) allowing all domain registrants to file actions in US courts which, I think would be problematic for obvious reasons (but I do applaud him for participating in the active discussions, thinking on his feet and helping to brainstorm during a live call). [Why should a Chinese registrant in a dispute with a Pakistani TM holder for a domain at an Irish TLD / registry operator and a German registrar be compelled to have the dispute heard in the USA?] We have to make policies that are robust to global law and international jurisdictions. I look forward to a productive discussion on this important topic. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Action Items from 15 November Working Group Call
by Julie Hedlund Nov. 21, 2017

Nov. 21, 2017

Dear all, The action items noted by staff from the Working Group call held yesterday, Wednesday, 15 November, are as follows: Actions Items: 1. Staff will recirculate slides from the first URS session at ICANN60. 2. Staff will create a table with columns for the questions; proposed edits/comments/clarifications; provide context; new questions. Add a reference to the relevant section of the URS and link to the URS. For example: Column 1 is Original Charter Questions (the grouping as in the ICANN60 slides can provide a useful categorization to break up the table meaningfully); Column 2 can be Suggestions for Refinement; Column 3 can be Context/Additional Background (or similar); and Column 4 Data Collection Suggestions. The notes from the call and the actions have been posted to the Working Group wiki space, together with the call recording, transcript and Adobe Connect chat and attendance records. Best regards, Julie Julie Hedlund, Policy Director

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