+1 David W. Maher Public Interest Registry Senior Vice-President - Law & Policy +1 312 375 4849 From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Wednesday, August 10, 2016 3:37 PM To: gnso-rpm-wg@icann.org Subject: [gnso-rpm-wg] Materials on Willful Blindness / PDDRP All, I just want to restate my point that I made on the call today. I believe our job is not to rehash discussions that took place in 2008-2012 on the rights protection mechanisms. Rather I believe our job is to assess whether any changes to the RPMs (or additions to the RPMs) need to be made based on actual evidence. In my personal opinion (not of my company or any client), a person proposing changes to the policies or processes should have the burden showing good cause as to why those change should be made. Absent a showing of that good cause, I do not believe we should make the changes. On the call (and the chat) Lori (from INTA) and Susan K.(from Facebook) stated that they had filed concerns with ICANN on certain registry practices and the failure of ICANN to address them or the inapplicability of the existing RPMs to cover those activities. I believe we should be looking at those concerns (as well as any other issues that are brought forward), evaluate whether any of them could (or should) have been brought under the existing RPMs, why they were not, and whether we should address them by changing an existing RPM or even adding a new one. Discussions on the PDDRP thus far have focused on what theoretical changes we can make to the PDDRP to "make it better" without any evidence being evaluated by the group on whether or not there is a need to "make it better." One of those proposals contemplates adding a willful blindness standard to the PDDRP without any showing that such a lower standard is necessary or whether there is any activity going on now (or in the past) that would fall under that lower standard necessitating a change to the policy. Absent any evidence showing good cause to change the policy to include willful blindness, the policy should not change. In fact, this issue was HEAVILY discussed and argued in 2010-2011. Ultimately, ICANN decided that the PDDRP should not include a willful blindness standard. I have included just some of the comments that were filed by WIPO, myself, the Registries, Neustar and others on this Issue including ICANN's analysis. There were other proponents of willful blindness other than WIPO (including I believe MARQUES, INTA and other IP organizations. I believe that this was even supported by the governments during the Board-GAC consultations. I know I do not have them all on here. But at the end of the day, this was not accepted. The point is that we should not be rehashing these old arguments. Our RPM PDP should not a "second bite at the apple". Here is a start for collecting the discussions that have already taken place: WIPO Proposal: * https://forum.icann.org/lists/ppdrp-15feb10/pdfkYQ1rYb8Ni.pdf (March 2010) * https://forum.icann.org/lists/4gtld-base/pdfjIZkXr0Dc2.pdf (June 2010) * https://forum.icann.org/lists/5gtld-base/pdf0nS63XScIt.pdf (December 2010) Circle ID Articles * http://www.circleid.com/posts/say_no_to_wipos_proposal_to_amend_the_pddrp_to... (May 5, 2010) ICANN Analysis: * https://archive.icann.org/en/topics/new-gtlds/pddrp-comment-summary-and-anal... (also has info on contract compliance) (May 2010) * https://archive.icann.org/en/topics/new-gtlds/summary-analysis-agv4-12nov10-... (November 2010) - Pg 118 ICANN PDDRP (Revised May 2010): https://archive.icann.org/en/topics/new-gtlds/pddrp-clean-28may10-en.pdf (Introduction addresses "The procedure is not intended to hold liable a registry operator that simply happens to have or knows of infringing domain names within its gTLD. Affirmative conduct is required.") RYSG Statement to WIPO Proposal: https://forum.icann.org/lists/4gtld-base/docLoFbNFb2jb.doc (June 2010) Neustar position: https://forum.icann.org/lists/4gtld-guide/pdf6T19n10mO4.pdf (July 2010) Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw