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:
>> >>
>> >>
>> >> https://web.archive.org/web/20170918230523/http://www.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”
>> >> >>
>> >> >>
>> >> >>
>> >> >>
>> >> >>
>> >> >>
>> >> >> _______________________________________________
>> >> >> gnso-rpm-wg mailing list
>> >> >> gnso-rpm-wg@icann.org
>> >> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>> >> _______________________________________________
>> >> gnso-rpm-wg mailing list
>> >> gnso-rpm-wg@icann.org
>> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>> >
>> >
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>
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