Co-Chairs, I would like to direct your attention to the email below, in particular the highlighted sections. Best regards, Greg ---------- Forwarded message ---------- From: George Kirikos <icann@leap.com> Date: Mon, May 7, 2018 at 8:14 AM Subject: Re: [gnso-rpm-wg] Procedures for RPM Working Group Co-Chair Selection To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Hi Greg, I think folks can discern the difference between thoughtful and penetrating analysis that seeks to arrive at the truth, and your superficial analysis, which is quick to use labels such as "alternate reality" and "spin" rather than use actual facts or reasoning. Recall that before you engaged, that WIPO page was static. WIPO didn't need to win you over. You were already their apologist, ready to say anything to defend them, and advocate for them. That advocacy did more harm than good, because up until then, they didn't feel the need to change their page at all. It's funny how you spent time talking about your credentials in a prior email, but actually never cited a single "case" to demonstrate those credentials in action. A quick search at NAF and WIPO for the word "Shatan" only delivers a single match, for the IdiotsGuide.com UDRP: http://www.adrforum.com/domaindecisions/95559.htm where your advocacy was for the *losing* side, taking a real shellacking from John Berryhill in a unanimous decision. So, let me give you the "Idiot's Guide" to what transpired. WIPO flinched. WIPO reacted. That's a fact. Remember, WIPO could have done nothing, but they felt they had no choice but to do something. Not to convince you (since you were already 100% on their side), but to convince those like me who they felt needed convincing. I remain unconvinced. All your continued words of advocacy fail, since you didn't need convincing. Rather that solving the issue, WIPO actually managed to make things worse by changing their standard to specifically exclude the cases at the core of this controversy. And then they demonstrated that they're ready to deploy a **double-standard** to exclude the MoobiTalk.com case that even you agreed belonged on the page under the prior standard: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002971.html "*Moobitalk* is different -- it is an actual court decision (indeed, two court decisions), which I think would be of some interest to those looking for court decisions reflecting the outcome of judicial challenges to UDRP cases. In this instance, I would join George in requesting (respectfully, in my case) that WIPO post the decisions in this case on the "Select UDRP-related Court Cases" page." Indeed, there are alternate realities here. You want people to take the "blue pill", whereas I want folks to take the "red pill" https://en.wikipedia.org/wiki/Red_pill_and_blue_pill The red pill represents knowledge (more cases are better than fewer cases) and the brutal truth that something is terribly wrong with the UDRP, as represented by those court actions that achieved justice for registrants. The blue pill represents blissful ignorance, that those cases should be swept under the rug, lest they shatter the illusion that everything is fine. Perhaps in your alternate reality, you won the IdiotsGuide.com UDRP. If I had to choose an advocate for them, I would certainly choose you, someone experienced at being on the losing side. Thank you for your efforts that have helped to force WIPO's hand to change their page, and demonstrate the enormous lengths they're prepared to take in order to exclude cases from their list. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Sun, May 6, 2018 at 9:39 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
This is not a test of "neutrality," except in your own mind (where doing your bidding is neutral and everything else is biased). And your "alternate reality" version of "events" is the poster child for a non-neutral spin on a simple and logical action (albeit one that displeased you).
I do agree with one thing -- folks can decide for themselves. I'll leave it at that.
Best regards,
Greg
On Sun, May 6, 2018 at 8:27 PM, George Kirikos <icann@leap.com> wrote:
Hi Greg:
As I originally noted, the issue was raised in order to help assess Brian's commitment to neutrality:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002940.html
In other words, a simple test.
Brian might have said something like "Thank you for bringing these to my attention. The person in charge of that page left several years ago, so that's why no recent cases have been added. I'll see that someone brings that page up to date."
But, as we know, that's not what happened. You must be using a different dictionary, because what they did instead didn't "clarify" anything at all:
https://en.oxforddictionaries.com/definition/clarify
Clarify: "Make (a statement or situation) less confused and more comprehensible."
They were incapable of actually clarifying their prior page at all, because any clarification would have had to properly explain the inclusion of the lawsociety.com case, without changing the list of cases.
Instead of actually clarifying things, they went to extraordinary lengths to actively EXCLUDE the 4 cases, to sweep them under the rug, lest they undermine the current UDRP itself by being pointed to as examples by observers of something wrong with the current state of affairs. They accomplished this by literally *changing* the standard for inclusion (rather than clarifying their past standard), rewriting it in order to prevent 3 of the cases from being posted under their brand new standard. They saw which cases they wanted to exclude, and crafted a new standard specifically designed to exclude them. Under this *new* standard, the precedent-setting inclusion of the lawsociety.com case could then be erased from their page (but not from our memories).
And even then, they cannot explain away the lack of inclusion of the MoobiTalk.com court case (which even meets their new standard for inclusion). You attempt to argue that the page is just "select court cases", but this goes to my point about the commitment to neutrality. A neutral organization would have included MoobiTalk.com, because it meets an *objective* standard. Otherwise, the only basis for not including it is because it is an "inconvenient truth" that they don't want to see publicized by their page. Lack of inclusion implies they use subjective selection criteria, not objectives ones.
WIPO even had another alternative, which was to create a separate section on that page dedicated entirely to court cases with consent orders (if they wanted to make such a distinction). This would give readers all the facts to make up their own minds. They did not pursue this neutral route, either, but took the path that swept those cases under the rug.
Even NAF (who I'm not a great fan of, obviously, given their history) remarkably sets a *higher* standard than WIPO. Let me say that another way -- WIPO's standard is *lower* than that of NAF. For example, at the top of the WindCreek.com UDRP decision page:
http://www.adrforum.com/domaindecisions/1639763.htm
one will find a clear "Notice of Withdrawal of Decision" section at the top:
"The November 13, 2015 decision of the Panel in the following UDRP proceeding is hereby withdrawn in full pursuant to the order and Consent Judgment, dated July 10, 2017, from the U.S. District Court for the Central District of California in Virtualpoint, Inc., dba Captive Media v. Poarch Band of Creek Indians, dba PCI Gaming Authority, Case 8:15-cv-02025-CJC-KES (C.D. Cal. July 10, 2017):
Poarch Band of Creek Indians dba PCI Gaming Authority v. Tech Admin, Virtual Point, No. 1639763 (November 13, 2015).
Decision: Withdrawn in full"
This provides observers with complete information as to the final outcome of the domain dispute (unlike the WIPO situation, who sweeps the final court outcomes of the domain disputes under the rug). That was a consent judgment, too.
WIPO has to decide for themselves -- are they neutral, or are they advocates for complainants? The lack of inclusion of the 4 cases points to the latter. [NB: The WindCreek.com case above would be a 5th case]
In conclusion, folks can decide for themselves whether taking extraordinary steps to exclude those 4 cases, by changing the standard for inclusion and then not applying the new standard evenly, in an objective manner, is consistent with neutrality.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Sun, May 6, 2018 at 6:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I don't know if anyone but George thinks these questions are relevant
or
appropriate in the context of selecting a new Co-Chair.
Just in case anyone else does, the change in the WIPO page answers George's questions -- it would go something like this. (Not to get in the way if Brian decides to answer these questions himself.)
1. Will [Brian] have WIPO update that page to list those additional court cases?
No.
2. If not, why not?
For those "additional court cases" that merely record party settlements: Given that a range of case-specific factors may impact court orders recording party settlements following a UDRP case, such cases are generally not listed here." Consistent with this clarification of the page's mission, the lawsociety.com settlement has been deleted.
For the other "additional court case": The page only lists "select court cases"; it is not intended to list all relevant cases. This limited mission has been clarified by removing conflicting language that might have been misinterpreted to mean that the goal was to list "all relevant cases."
So it seems that the lawsociety.com was an anomaly and not a precedent, and that my understanding of the intent of the list was correct: like virtually every other list of cases that I have ever seen, used or created, it was intended only to list decisions of the courts. Glad I didn't entertain the invitation to "cut my losses," since I had no losses to cut. :-)
Is this where I say:
AND BOOM GOES THE DYNAMITE!
Best regards,
Greg
On Fri, May 4, 2018 at 2:10 PM, George Kirikos <icann@leap.com> wrote:
P.S. To supplement my own question, I notice WIPO *has* updated their page at:
http://www.wipo.int/amc/en/domains/challenged/
to now say:
"This page lists select court cases known to have been issued following a UDRP decision. Given that a range of case-specific factors may impact court orders recording party settlements following a UDRP case, such cases are generally not listed here."
Whereas it used to say:
wipo.int/amc/en/domains/challenged/
"This section captures select court orders and decisions in relation to the UDRP or specific UDRP cases that have come to the attention of the WIPO Arbitration and Mediation Center. While efforts are made to keep this list up-to-date, the Center cannot guarantee that it includes all relevant cases.
Court cases that are pending or for which no order/decision is available are not published on this list."
Oh, and they actually *took down* the lawsociety.com case, yet didn't add the MoobiTalk.com case (which still fits their brand new standard).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Fri, May 4, 2018 at 2:04 PM, George Kirikos <icann@leap.com> wrote:
My specific questions for Brian go back to my earlier post:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002940.html
Will he have WIPO update that page to list those additional court cases? If not, why not?
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Fri, May 4, 2018 at 12:39 PM, Julie Hedlund <julie.hedlund@icann.org> wrote:
Dear Working Group members,
On behalf of the Co-Chairs of this PDP Working Group, it might be helpful to reiterate the procedures in the Working Group Guidelines (see also below) for selecting a Co-Chair. Given those procedures and the fact that there is no requirement to hold an election if one is not deemed necessary, here is the suggestion to the Working Group for proceeding with the
Co-Chair
selection process:
1. Until end of day 08 May Working Group members should send either their objections to Brian Beckham’s becoming a co-chair and/or specific questions for Brian to the list;
2. If no objections or questions are received, or Brian chooses to answer any specific questions that come in before or during the 09 May meeting, the Working Group will have the opportunity to confirm Brian’s appointment during the 09 May meeting. In fairness to Brian, we strongly urge that any questions for him be submitted in writing by COB on May 8.
3. If objections are received or questions submitted that warrant a discussion/response on a call, these be addressed at the 9 May meeting at which next steps can also be decided (including an election if need be).
Best regards,
Mary, Ariel, Berry, and Julie
GNSO Working Group Guidelines:
https://gnso.icann.org/en/council/annex-1-gnso-wg- guidelines-30jan18-en.pdf[gnso.icann.org]
“2.1.4.2 Election of the WG Leaders
Unless a Chair has already been named by the Chartering Organization, normally a Chair will be selected at the first meeting of the WG. Until that time, the Chartering Organization’s liaison may fulfill the role of interim Chair. A Working Group may elect to have Co-Chairs and Vice-Chairs. Under extraordinary circumstances, ICANN staff may be requested to perform administrative co- ordination of the WG until such time a Chair can be appointed. Once selected, a Working Group Chair will need to be confirmed by the Chartering Organization (CO). The newly elected Chair will act on a provisional basis until the Chartering Organization has confirmed the appointment. If there are any objections to the selected Chair, the CO will conduct a vote to establish whether there is sufficient support for the selected Chair according to the voting procedures of the CO. If not, the Working Group will be requested to reconsider their choice for Chair and return to the CO with a new proposal. In the unlikely event that the selected Chair is rejected by the CO, the CO must articulate its reason for the rejection and the WG must be able to ask for reconsideration of the decision. (Emphasis added)
Section 2.2: A suggested procedure to conduct elections may be:
Nominations or self-nominations; Statements of qualifications from candidates, which sets forth the qualifications, qualities and experience that they possess that will serve the particular WG; Vote by simple majority; Notification of and subsequent confirmation by the Chartering Organization of results of actions”
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