I am sorry for having missed the last call but happy to be of assistance as well. Paul Keating From: <gnso-rpm-wg-bounces@icann.org> on behalf of Ariel Manoff <amanoff@vmf.com.ar> Organization: Vitale Manoff Feilbogen Reply-To: <amanoff@vmf.com.ar> Date: Friday, August 19, 2016 8:28 PM To: 'David Tait' <david.tait@icann.org>, <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Call for volunteers - RPMs Working Group, Mediation sub-team

Pleas, add my name to this list. Hector

Héctor Ariel Manoff Vitale, Manoff & Feilbogen Viamonte 1145 10º Piso C1053ABW Buenos Aires República Argentina Te: (54-11) 4371-6100 Fax: (54-11) 4371-6365 E-mail: amanoff@vmf.com.ar <mailto:amanoff@vmf.com.ar> Web: http://www.vmf.com.ar <http://www.vmf.com.ar/> ****************************************************************************** ********************************************************************** Esta comunicación tiene como destinatario a la persona o empresa a la cual está dirigida y puede contener información confidencial y reservada. Si el lector de este mensaje no es el destinatario o sus empleados o representantes, deberá proceder a reenviar el presente a su remitente. La distribución, diseminación o copiado de este mensaje podría constituir violación a la ley. Gracias. This email and any files transmitted with it are intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to recipient, you are hereby notified that any dissemination, distribution or copying of this communication in error, please notify us immediately by telephone and return the original message to us at the above address. Thank you. ****************************************************************************** **********************************************************************

De: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] En nombre de David Tait Enviado el: viernes, 19 de agosto de 2016 13:19 Para: gnso-rpm-wg@icann.org Asunto: [gnso-rpm-wg] Call for volunteers - RPMs Working Group, Mediation sub-team

Dear Working Group members

At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team.

We would kindly request that you send us any responses by 0900 UTC 24 August 2016

Please note that Petter Rindforth has already kindly volunteered for this sub-team.

Kind regards,

David Tait

David A. Tait

Policy Specialist (Solicitor qualified in Scotland)

Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: + 44-7864-793776

Email: david.tait@icann.org www.icann.org <http://www.icann.org>

<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaig... =sig-email&utm_content=emailclient> Libre de virus. www.avast.com <https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaig... =sig-email&utm_content=emailclient> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Thank you, David. I'd like to volunteer as well. Sent from my iPhone On Aug 19, 2016, at 9:49 PM, Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> wrote: Thanks David. Please add my name as well. Kind regards, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Ariel Manoff Sent: Friday, August 19, 2016 1:28 PM To: 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Call for volunteers - RPMs Working Group, Mediation sub-team Pleas, add my name to this list. Hector H?ctor Ariel Manoff Vitale, Manoff & Feilbogen Viamonte 1145 10? Piso C1053ABW Buenos Aires Rep?blica Argentina Te: (54-11) 4371-6100 Fax: (54-11) 4371-6365 E-mail: amanoff@vmf.com.ar<mailto:amanoff@vmf.com.ar> Web: http://www.vmf.com.ar<http://www.vmf.com.ar/> **************************************************************************************************************************************************** Esta comunicaci?n tiene como destinatario a la persona o empresa a la cual est? dirigida y puede contener informaci?n confidencial y reservada. Si el lector de este mensaje no es el destinatario o sus empleados o representantes, deber? proceder a reenviar el presente a su remitente. La distribuci?n, diseminaci?n o copiado de este mensaje podr?a constituir violaci?n a la ley. Gracias. This email and any files transmitted with it are intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to recipient, you are hereby notified that any dissemination, distribution or copying of this communication in error, please notify us immediately by telephone and return the original message to us at the above address. Thank you. **************************************************************************************************************************************************** De: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] En nombre de David Tait Enviado el: viernes, 19 de agosto de 2016 13:19 Para: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Asunto: [gnso-rpm-wg] Call for volunteers - RPMs Working Group, Mediation sub-team Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org<mailto:david.tait@icann.org> www.icann.org<http://www.icann.org> [https://ipmcdn.avast.com/images/icons/icon-envelope-tick-round-orange-animated-tick-v1.gif]<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=emailclient> Libre de virus. www.avast.com<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaig...> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Hi Jeff, I agree with the general sentiment that if it's not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it "gives peace a chance" in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway - talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org> Cc: gnso-rpm-wg@icann.org Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org <mailto:david.tait@icann.org> > wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org <mailto:david.tait@icann.org> www.icann.org <http://www.icann.org> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Thanks Paul K. for these thoughts. Looking forward to working with you on the Subteam to see if we can get this one sorted. Best, Paul M. Paul D. McGrady, Jr. policy@paulmcgrady.com From: Paul Keating [mailto:Paul@law.es] Sent: Monday, August 22, 2016 10:07 AM To: Paul McGrady <policy@paulmcgrady.com>; 'Jeff Neuman' <jeff.neuman@comlaude.com>; 'David Tait' <david.tait@icann.org> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) If in fact there have been complaints to ICANN about the issue of Registry activities with respect to this issue, I would like to see them documented for the benefit of the WG. When we 1st discussed the burden of proof issue the question was raised but not substantiated - that there had been no complaints because the burden was too high. The question was raised as to whether complaints had been made. I did not see any evidence put forward that any complaints had been even attempted. If there has been a "tendency to run to ICANN Staff & Board with complaints" then there should be some record of such. I would like to see those records and I request that Mary try to dig them up for us. If these comments are unsubstantiated then they are not worth much IMHO. If they are substantiated then they are worth investigating further. While I have volunteered for the sub-group on mediation, I still consider Jeff's point (which I had echoed on calls as well) to be a primary guiding point for me. Just as I did not see the need to fix something that was not broken, I do not favor a new system that will reduce the burden of "making a claim" with the result of placing an unfair burden upon registries and registrars to deal with each and every complaint or concern. While it is certainly costly for trademark holders to police their marks, we need to remember that registries and registrars are a high-volume/low-margin business (a registrar for example might make as little as 50Cents on every domain registration - w which will cover about 15 seconds of legal time). Given that the registries/registrars are really operating under contract with ICANN and that the dispute mechanism we are discussing is essentially a "private right of action" we need to take care not to relieve ICANN of its primary responsibility to police its own agreements. And, we must be careful about the relative burdens/profits involved as between the underlying "claimants" (trademark holder vs registry/registrar). From: <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>

on behalf of Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> > Date: Monday, August 22, 2016 4:48 PM To: 'Jeff Neuman' <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >, 'David Tait' <david.tait@icann.org <mailto:david.tait@icann.org> > Cc: <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Hi Jeff, I agree with the general sentiment that if it's not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it "gives peace a chance" in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway - talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org <mailto:david.tait@icann.org> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org <mailto:david.tait@icann.org> > wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org <mailto:david.tait@icann.org> www.icann.org <http://www.icann.org> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Just chiming in that, so far as this co-chair is concerned, the formation of this sub-team in no way indicates that the full WG will recommend encouragement of voluntary mediation. It is information-gathering, not decisional, in nature. It looks like we have an enthusiastic and balanced sub-team and I for one look forward to hearing from them once they have vetted this. Thanks to all who volunteered. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Monday, August 22, 2016 11:26 AM To: Paul McGrady; 'Jeff Neuman'; 'David Tait' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Me too Can you please help by referencing any record for complaints noted in your email below? I really want to find out one way or the other if this is an issue and if so how it should be fairly addressed. PRK From: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Date: Monday, August 22, 2016 5:20 PM To: Paul Keating <paul@law.es<mailto:paul@law.es>>, 'Jeff Neuman' <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Thanks Paul K. for these thoughts. Looking forward to working with you on the Subteam to see if we can get this one sorted. Best, Paul M. Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From: Paul Keating [mailto:Paul@law.es] Sent: Monday, August 22, 2016 10:07 AM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; 'Jeff Neuman' <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) If in fact there have been complaints to ICANN about the issue of Registry activities with respect to this issue, I would like to see them documented for the benefit of the WG. When we 1st discussed the burden of proof issue the question was raised but not substantiated - that there had been no complaints because the burden was too high. The question was raised as to whether complaints had been made. I did not see any evidence put forward that any complaints had been even attempted. If there has been a "tendency to run to ICANN Staff & Board with complaints" then there should be some record of such. I would like to see those records and I request that Mary try to dig them up for us. If these comments are unsubstantiated then they are not worth much IMHO. If they are substantiated then they are worth investigating further. While I have volunteered for the sub-group on mediation, I still consider Jeff's point (which I had echoed on calls as well) to be a primary guiding point for me. Just as I did not see the need to fix something that was not broken, I do not favor a new system that will reduce the burden of "making a claim" with the result of placing an unfair burden upon registries and registrars to deal with each and every complaint or concern. While it is certainly costly for trademark holders to police their marks, we need to remember that registries and registrars are a high-volume/low-margin business (a registrar for example might make as little as 50Cents on every domain registration - w which will cover about 15 seconds of legal time). Given that the registries/registrars are really operating under contract with ICANN and that the dispute mechanism we are discussing is essentially a "private right of action" we need to take care not to relieve ICANN of its primary responsibility to police its own agreements. And, we must be careful about the relative burdens/profits involved as between the underlying "claimants" (trademark holder vs registry/registrar). From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Date: Monday, August 22, 2016 4:48 PM To: 'Jeff Neuman' <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Jeff, I agree with the general sentiment that if it's not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it "gives peace a chance" in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway - talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org<mailto:david.tait@icann.org> www.icann.org<http://www.icann.org> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7752 / Virus Database: 4633/12811 - Release Date: 08/15/16 Internal Virus Database is out of date.

Jeff: I have reached out to Kathy Kleiman and J Scott Evans and once the Co-Chairs have an opportunity to discuss this we shall get back to you and the WG. Speaking for myself, this WG's Charter restricts its phase 1 activities solely to review of the new gTLD RPMs, and the only one of those in which a registry can be a party is the PDDRP, so I don't see how we could make findings or recommendations regarding any "other form of complaints against registries". Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Monday, August 22, 2016 1:58 PM To: Phil Corwin; Paul Keating; Paul McGrady; 'David Tait' Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Phil and the other co-chairs, Let me ask again the basic question.....what causes of action or types of complaints for which we are talking about mediation? PDDRP complaints (of which there have been none so far), or some other form of complaints against registries? If it is the latter, shouldn't we see if there is any agreement on those first? 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 From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Monday, August 22, 2016 11:32 AM To: Paul Keating <Paul@law.es<mailto:Paul@law.es>>; Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just chiming in that, so far as this co-chair is concerned, the formation of this sub-team in no way indicates that the full WG will recommend encouragement of voluntary mediation. It is information-gathering, not decisional, in nature. It looks like we have an enthusiastic and balanced sub-team and I for one look forward to hearing from them once they have vetted this. Thanks to all who volunteered. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Monday, August 22, 2016 11:26 AM To: Paul McGrady; 'Jeff Neuman'; 'David Tait' Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Me too Can you please help by referencing any record for complaints noted in your email below? I really want to find out one way or the other if this is an issue and if so how it should be fairly addressed. PRK From: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Date: Monday, August 22, 2016 5:20 PM To: Paul Keating <paul@law.es<mailto:paul@law.es>>, 'Jeff Neuman' <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Thanks Paul K. for these thoughts. Looking forward to working with you on the Subteam to see if we can get this one sorted. Best, Paul M. Paul D. McGrady, Jr. policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> From: Paul Keating [mailto:Paul@law.es] Sent: Monday, August 22, 2016 10:07 AM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; 'Jeff Neuman' <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) If in fact there have been complaints to ICANN about the issue of Registry activities with respect to this issue, I would like to see them documented for the benefit of the WG. When we 1st discussed the burden of proof issue the question was raised but not substantiated - that there had been no complaints because the burden was too high. The question was raised as to whether complaints had been made. I did not see any evidence put forward that any complaints had been even attempted. If there has been a "tendency to run to ICANN Staff & Board with complaints" then there should be some record of such. I would like to see those records and I request that Mary try to dig them up for us. If these comments are unsubstantiated then they are not worth much IMHO. If they are substantiated then they are worth investigating further. While I have volunteered for the sub-group on mediation, I still consider Jeff's point (which I had echoed on calls as well) to be a primary guiding point for me. Just as I did not see the need to fix something that was not broken, I do not favor a new system that will reduce the burden of "making a claim" with the result of placing an unfair burden upon registries and registrars to deal with each and every complaint or concern. While it is certainly costly for trademark holders to police their marks, we need to remember that registries and registrars are a high-volume/low-margin business (a registrar for example might make as little as 50Cents on every domain registration - w which will cover about 15 seconds of legal time). Given that the registries/registrars are really operating under contract with ICANN and that the dispute mechanism we are discussing is essentially a "private right of action" we need to take care not to relieve ICANN of its primary responsibility to police its own agreements. And, we must be careful about the relative burdens/profits involved as between the underlying "claimants" (trademark holder vs registry/registrar). From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Date: Monday, August 22, 2016 4:48 PM To: 'Jeff Neuman' <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Jeff, I agree with the general sentiment that if it's not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it "gives peace a chance" in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway - talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org<mailto:david.tait@icann.org> www.icann.org<http://www.icann.org> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7752 / Virus Database: 4633/12811 - Release Date: 08/15/16 Internal Virus Database is out of date. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7752 / Virus Database: 4633/12811 - Release Date: 08/15/16 Internal Virus Database is out of date.

Jeff, I don't think anyone is suggesting that a proposed PDDRP mediation process would be used to address issues which wouldn't otherwise fall into a PDDRP complaint. Best, Paul From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Monday, August 22, 2016 12:58 PM To: Phil Corwin <psc@vlaw-dc.com>; Paul Keating <Paul@law.es>; Paul McGrady <policy@paulmcgrady.com>; 'David Tait' <david.tait@icann.org> Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Phil and the other co-chairs, Let me ask again the basic question...what causes of action or types of complaints for which we are talking about mediation? PDDRP complaints (of which there have been none so far), or some other form of complaints against registries? If it is the latter, shouldn't we see if there is any agreement on those first? Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Monday, August 22, 2016 11:32 AM To: Paul Keating <Paul@law.es <mailto:Paul@law.es> >; Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> >; Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >; 'David Tait' <david.tait@icann.org <mailto:david.tait@icann.org> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just chiming in that, so far as this co-chair is concerned, the formation of this sub-team in no way indicates that the full WG will recommend encouragement of voluntary mediation. It is information-gathering, not decisional, in nature. It looks like we have an enthusiastic and balanced sub-team and I for one look forward to hearing from them once they have vetted this. Thanks to all who volunteered. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Monday, August 22, 2016 11:26 AM To: Paul McGrady; 'Jeff Neuman'; 'David Tait' Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Me too Can you please help by referencing any record for complaints noted in your email below? I really want to find out one way or the other if this is an issue and if so how it should be fairly addressed. PRK From: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> > Date: Monday, August 22, 2016 5:20 PM To: Paul Keating <paul@law.es <mailto:paul@law.es> >, 'Jeff Neuman' <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >, 'David Tait' <david.tait@icann.org <mailto:david.tait@icann.org> > Cc: <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Thanks Paul K. for these thoughts. Looking forward to working with you on the Subteam to see if we can get this one sorted. Best, Paul M. Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> From: Paul Keating [mailto:Paul@law.es] Sent: Monday, August 22, 2016 10:07 AM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> >; 'Jeff Neuman' <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >; 'David Tait' <david.tait@icann.org <mailto:david.tait@icann.org> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) If in fact there have been complaints to ICANN about the issue of Registry activities with respect to this issue, I would like to see them documented for the benefit of the WG. When we 1st discussed the burden of proof issue the question was raised but not substantiated - that there had been no complaints because the burden was too high. The question was raised as to whether complaints had been made. I did not see any evidence put forward that any complaints had been even attempted. If there has been a "tendency to run to ICANN Staff & Board with complaints" then there should be some record of such. I would like to see those records and I request that Mary try to dig them up for us. If these comments are unsubstantiated then they are not worth much IMHO. If they are substantiated then they are worth investigating further. While I have volunteered for the sub-group on mediation, I still consider Jeff's point (which I had echoed on calls as well) to be a primary guiding point for me. Just as I did not see the need to fix something that was not broken, I do not favor a new system that will reduce the burden of "making a claim" with the result of placing an unfair burden upon registries and registrars to deal with each and every complaint or concern. While it is certainly costly for trademark holders to police their marks, we need to remember that registries and registrars are a high-volume/low-margin business (a registrar for example might make as little as 50Cents on every domain registration - w which will cover about 15 seconds of legal time). Given that the registries/registrars are really operating under contract with ICANN and that the dispute mechanism we are discussing is essentially a "private right of action" we need to take care not to relieve ICANN of its primary responsibility to police its own agreements. And, we must be careful about the relative burdens/profits involved as between the underlying "claimants" (trademark holder vs registry/registrar). From: <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>

on behalf of Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> > Date: Monday, August 22, 2016 4:48 PM To: 'Jeff Neuman' <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >, 'David Tait' <david.tait@icann.org <mailto:david.tait@icann.org> > Cc: <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Hi Jeff, I agree with the general sentiment that if it's not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it "gives peace a chance" in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway - talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org <mailto:david.tait@icann.org> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org <mailto:david.tait@icann.org> > wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org <mailto:david.tait@icann.org> www.icann.org <http://www.icann.org> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _____ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com> Version: 2016.0.7752 / Virus Database: 4633/12811 - Release Date: 08/15/16 Internal Virus Database is out of date.

Paul, As much as I love the sentiment of giving peace a chance, isn't that usually chanted when there is actually a war going on? My assumption is that unless there is evidence to the contrary, aren't we at peace already :) At this point I am not aware of any complaints of a PDDRP nature (meaning that registries have profited off of the infringement of third parties as a result of their affirmative conduct - which is a paraphrase of the standard). Therefore, spending any time working on a mediation program for the pddrp when there is no evidence that there was any activity that would have led to a valid pddrp complaint seems like spinning our wheels. What it seems like you are talking about is a general mediation program for any complaints about registry activity whether or not of a pddrp nature. If we went down that path, I still think this subgroup is premature because we have not documented the types of "causes of action" for which mediation could or should be sought. That should be step 1. 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 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Monday, August 22, 2016 10:48 AM To: Jeff Neuman <jeff.neuman@comlaude.com>; 'David Tait' <david.tait@icann.org> Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Jeff, I agree with the general sentiment that if it's not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it "gives peace a chance" in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway - talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org<mailto:david.tait@icann.org> www.icann.org<http://www.icann.org> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

I am very concerned that the formation of a mediation subteam to gather information presupposes the question. If in fact, there is a problem with brand owners running to ICANN to report pervasive bad faith activities by a registry rather than working things out with the registry, we don't have evidence of this. We cannot presuppose that mediation is the right answer when we don't know the question. If we want to create a sub team to investigate problems, lets do that. But creating a subteam to discuss a SOLUTION for which a problem has yet to be identified is putting the cart before the horse. Even if problems are identified, it's not a foregone conclusion that mediation is going to be the right answer. Thanks, Kristine Kristine Dorrain Corp Counsel - IP | Amazon | 206.740.9339 dorraink@amazon.com<mailto:dorraink@amazon.com> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Monday, August 22, 2016 10:53 AM To: Paul McGrady <policy@paulmcgrady.com>; 'David Tait' <david.tait@icann.org> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Paul, As much as I love the sentiment of giving peace a chance, isn't that usually chanted when there is actually a war going on? My assumption is that unless there is evidence to the contrary, aren't we at peace already :) At this point I am not aware of any complaints of a PDDRP nature (meaning that registries have profited off of the infringement of third parties as a result of their affirmative conduct - which is a paraphrase of the standard). Therefore, spending any time working on a mediation program for the pddrp when there is no evidence that there was any activity that would have led to a valid pddrp complaint seems like spinning our wheels. What it seems like you are talking about is a general mediation program for any complaints about registry activity whether or not of a pddrp nature. If we went down that path, I still think this subgroup is premature because we have not documented the types of "causes of action" for which mediation could or should be sought. That should be step 1. 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 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Monday, August 22, 2016 10:48 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Jeff, I agree with the general sentiment that if it's not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it "gives peace a chance" in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway - talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org<mailto:david.tait@icann.org> www.icann.org<http://www.icann.org> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Wow, that got sent late. Greg, I don’t think we need a subgroup to discuss whether we need a subgroup to discuss mediation. It seems like we’re twisting ourselves into knots over a non-issue. Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 UTC -7

On 23 Aug 2016, at 10:38, Reg Levy <reg@mmx.co> wrote:

I agree—this is an unnecessary task that presupposes registries are bad actors.

Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 <mmx_logo-edges_2[3].png>

UTC -7

...

On 23 Aug 2016, at 09:37, Dorrain, Kristine via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> wrote:

I am very concerned that the formation of a mediation subteam to gather information presupposes the question. If in fact, there is a problem with brand owners running to ICANN to report pervasive bad faith activities by a registry rather than working things out with the registry, we don’t have evidence of this. We cannot presuppose that mediation is the right answer when we don’t know the question. If we want to create a sub team to investigate problems, lets do that. But creating a subteam to discuss a SOLUTION for which a problem has yet to be identified is putting the cart before the horse. Even if problems are identified, it’s not a foregone conclusion that mediation is going to be the right answer.

Thanks,

Kristine

Kristine Dorrain Corp Counsel – IP | Amazon | 206.740.9339 dorraink@amazon.com <mailto:dorraink@amazon.com>

From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Monday, August 22, 2016 10:53 AM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>>; 'David Tait' <david.tait@icann.org <mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Paul, <>

As much as I love the sentiment of giving peace a chance, isn’t that usually chanted when there is actually a war going on? My assumption is that unless there is evidence to the contrary, aren’t we at peace already J At this point I am not aware of any complaints of a PDDRP nature (meaning that registries have profited off of the infringement of third parties as a result of their affirmative conduct – which is a paraphrase of the standard). Therefore, spending any time working on a mediation program for the pddrp when there is no evidence that there was any activity that would have led to a valid pddrp complaint seems like spinning our wheels.

What it seems like you are talking about is a general mediation program for any complaints about registry activity whether or not of a pddrp nature. If we went down that path, I still think this subgroup is premature because we have not documented the types of “causes of action” for which mediation could or should be sought. That should be step 1.

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

From: Paul McGrady [mailto:policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>] Sent: Monday, August 22, 2016 10:48 AM To: Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; 'David Tait' <david.tait@icann.org <mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Hi Jeff,

I agree with the general sentiment that if it’s not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it “gives peace a chance” in the long term.

One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway – talking our problems out with each other.

Best, Paul

From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org <mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general.

I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute.

I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes.

Jeff Neuman

On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org <mailto:david.tait@icann.org>> wrote:

Dear Working Group members

At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team.

We would kindly request that you send us any responses by 0900 UTC 24 August 2016

Please note that Petter Rindforth has already kindly volunteered for this sub-team.

Kind regards,

David Tait

David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: + 44-7864-793776 Email: david.tait@icann.org <mailto:david.tait@icann.org> www.icann.org <http://www.icann.org/> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto: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

While I hate to disagree with anyone, I don't think the idea of mediation presupposes anything about registries -- at least nothing bad. If anything, it presupposes that registries are generally reasonable, and that it would be worthwhile having a mediation step before the PDDRP to see if the issue causing a party to contemplate filing a PDDRP can be resolved through an exchange of views and concerns in the warm embrace of a skilled mediator. I think the idea of mediation also presupposes that the PDDRP is a heavy, blunt instrument, and that a lighter weight method of dealing with an issue before wielding the heavy blunt instrument would be a good thing. I may have missed something, but I thought the primary impetus for mediation was to serve as a gateway for PDDRP. Analyzing it as an alternative to complaining to ICANN about registry behavior did not seem to be part of the equation, initially (and is also not part of our mandate). Greg On Tue, Aug 23, 2016 at 1:38 PM, Reg Levy <reg@mmx.co> wrote:

I agree—this is an unnecessary task that presupposes registries are bad actors.

Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2

UTC -7

On 23 Aug 2016, at 09:37, Dorrain, Kristine via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:

I am very concerned that the formation of a mediation subteam to gather information presupposes the question. If in fact, there is a problem with brand owners running to ICANN to report pervasive bad faith activities *by a registry* rather than working things out with the registry, we don’t have evidence of this. We cannot presuppose that mediation is the right answer when we don’t know the question. If we want to create a sub team to investigate problems, lets do that. But creating a subteam to discuss a SOLUTION for which a problem has yet to be identified is putting the cart before the horse. Even if problems are identified, it’s not a foregone conclusion that mediation is going to be the right answer.

Thanks,

Kristine

Kristine Dorrain

Corp Counsel – IP | Amazon | 206.740.9339

dorraink@amazon.com

*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jeff Neuman *Sent:* Monday, August 22, 2016 10:53 AM *To:* Paul McGrady <policy@paulmcgrady.com>; 'David Tait' < david.tait@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Paul,

As much as I love the sentiment of giving peace a chance, isn’t that usually chanted when there is actually a war going on? My assumption is that unless there is evidence to the contrary, aren’t we at peace already J At this point I am not aware of any complaints of a PDDRP nature (meaning that registries have profited off of the infringement of third parties as a result of their affirmative conduct – which is a paraphrase of the standard). Therefore, spending any time working on a mediation program for the pddrp when there is no evidence that there was any activity that would have led to a valid pddrp complaint seems like spinning our wheels.

What it seems like you are talking about is a general mediation program for any complaints about registry activity whether or not of a pddrp nature. If we went down that path, I still think this subgroup is premature because we have not documented the types of “causes of action” for which mediation could or should be sought. That should be step 1.

*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 or jeff.neuman@comlaude.com

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw

*From:* Paul McGrady [mailto:policy@paulmcgrady.com <policy@paulmcgrady.com>] *Sent:* Monday, August 22, 2016 10:48 AM *To:* Jeff Neuman <jeff.neuman@comlaude.com>; 'David Tait' < david.tait@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Hi Jeff,

I agree with the general sentiment that if it’s not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it “gives peace a chance” in the long term.

One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity *and method* for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway – talking our problems out with each other.

Best,

Paul

*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jeff Neuman *Sent:* Sunday, August 21, 2016 8:20 PM *To:* David Tait <david.tait@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general.

I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute.

I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes.

Jeff Neuman

On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org> wrote:

Dear Working Group members

At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team.

We would kindly request that you send us any responses by 0900 UTC 24 August 2016

Please note that Petter Rindforth has already kindly volunteered for this sub-team.

Kind regards,

David Tait

David A. Tait

Policy Specialist (Solicitor qualified in Scotland)

Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: + 44-7864-793776

Email: david.tait@icann.org

www.icann.org

_______________________________________________ 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

_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Reg, I agree that it would have to be voluntary (compulsory mediation seems almost like an oxymoron...). However, I think that if it's available in the structure, it's more likely to be suggested, and also more likely to be accepted. Ad hoc, user generated mediation is much less likely to occur or gain traction. I'm not necessarily in favor of mediation in this context(still open-minded), and I'm also increasingly sympathetic to the Neuman Rule ("absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes."), which could end this whole WG a good deal sooner if adhered to. Greg On Tue, Aug 23, 2016 at 4:43 PM, Reg Levy <reg@mmx.co> wrote:

Mediation, however, must be entered into willingly by both parties and can always be requested by either party—as long as they agree to be bound by it. It’s just not something that our group needs to spend time on, IMO.

(also, I didn't mean to impugn anyone other than myself, as I was talking about my email that was timestamped 1314 but that I sent closer to 10am…… o.O)

Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2

UTC -7

On 23 Aug 2016, at 13:39, Greg Shatan <gregshatanipc@gmail.com> wrote:

While I hate to disagree with anyone, I don't think the idea of mediation presupposes anything about registries -- at least nothing bad. If anything, it presupposes that registries are generally reasonable, and that it would be worthwhile having a mediation step before the PDDRP to see if the issue causing a party to contemplate filing a PDDRP can be resolved through an exchange of views and concerns in the warm embrace of a skilled mediator.

I think the idea of mediation also presupposes that the PDDRP is a heavy, blunt instrument, and that a lighter weight method of dealing with an issue before wielding the heavy blunt instrument would be a good thing.

I may have missed something, but I thought the primary impetus for mediation was to serve as a gateway for PDDRP. Analyzing it as an alternative to complaining to ICANN about registry behavior did not seem to be part of the equation, initially (and is also not part of our mandate).

Greg

On Tue, Aug 23, 2016 at 1:38 PM, Reg Levy <reg@mmx.co> wrote:

...

I agree—this is an unnecessary task that presupposes registries are bad actors.

Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 <mmx_logo-edges_2[3].png>

UTC -7

On 23 Aug 2016, at 09:37, Dorrain, Kristine via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:

I am very concerned that the formation of a mediation subteam to gather information presupposes the question. If in fact, there is a problem with brand owners running to ICANN to report pervasive bad faith activities *by a registry* rather than working things out with the registry, we don’t have evidence of this. We cannot presuppose that mediation is the right answer when we don’t know the question. If we want to create a sub team to investigate problems, lets do that. But creating a subteam to discuss a SOLUTION for which a problem has yet to be identified is putting the cart before the horse. Even if problems are identified, it’s not a foregone conclusion that mediation is going to be the right answer.

Thanks,

Kristine

Kristine Dorrain

Corp Counsel – IP | Amazon | 206.740.9339

dorraink@amazon.com

*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ic ann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jeff Neuman *Sent:* Monday, August 22, 2016 10:53 AM *To:* Paul McGrady <policy@paulmcgrady.com>; 'David Tait' < david.tait@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Paul,

As much as I love the sentiment of giving peace a chance, isn’t that usually chanted when there is actually a war going on? My assumption is that unless there is evidence to the contrary, aren’t we at peace already J At this point I am not aware of any complaints of a PDDRP nature (meaning that registries have profited off of the infringement of third parties as a result of their affirmative conduct – which is a paraphrase of the standard). Therefore, spending any time working on a mediation program for the pddrp when there is no evidence that there was any activity that would have led to a valid pddrp complaint seems like spinning our wheels.

What it seems like you are talking about is a general mediation program for any complaints about registry activity whether or not of a pddrp nature. If we went down that path, I still think this subgroup is premature because we have not documented the types of “causes of action” for which mediation could or should be sought. That should be step 1.

*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 or jeff.neuman@comlaude.com

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw

*From:* Paul McGrady [mailto:policy@paulmcgrady.com <policy@paulmcgrady.com>] *Sent:* Monday, August 22, 2016 10:48 AM *To:* Jeff Neuman <jeff.neuman@comlaude.com>; 'David Tait' < david.tait@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Hi Jeff,

I agree with the general sentiment that if it’s not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it “gives peace a chance” in the long term.

One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity *and method* for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway – talking our problems out with each other.

Best,

Paul

*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ic ann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jeff Neuman *Sent:* Sunday, August 21, 2016 8:20 PM *To:* David Tait <david.tait@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general.

I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute.

I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes.

Jeff Neuman

On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org> wrote:

Dear Working Group members

At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team.

We would kindly request that you send us any responses by 0900 UTC 24 August 2016

Please note that Petter Rindforth has already kindly volunteered for this sub-team.

Kind regards,

David Tait

David A. Tait

Policy Specialist (Solicitor qualified in Scotland)

Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: + 44-7864-793776

Email: david.tait@icann.org

www.icann.org

_______________________________________________ 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

_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Hello everyone – just a note that the co-chairs and staff are preparing to send out the agenda for the next WG meeting, and it is likely that the agenda will include at least a brief discussion of the timeliness and scope of work of such a Sub Team. If I may add, the staff understanding of the role of the Sub Team is not to discuss whether to add mediation to the TM-PDDRP (which would be a task for the full Working Group), but to develop some high-level principles that can guide the eventual creation and implementation of such a mechanism, if the Working Group ultimately decides to recommend adding it to the Procedure. For example, the Sub Team could contact other mediation service providers such as JAMS and Nominet (as suggested previously by some Working Group members) for information on what the mechanism might look like. It could also discuss some of the more open questions on this issue that Working Group members have raised already (e.g. whether a skeletal complaint is sufficient, whether mediation services must be provided by existing TM-PDDRP providers, etc.). Any and all general principles agreed on by the Sub Team would of course have to be brought back to the full Working Group for further deliberation – and this would be the case regardless of whether the Sub Team commences work now, or at some future (possibly more appropriate) point in the PDP. I hope this is helpful. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org Telephone: +1-603-5744889 From: <gnso-rpm-wg-bounces@icann.org> on behalf of Paul McGrady <policy@paulmcgrady.com> Date: Wednesday, August 24, 2016 at 05:59 To: 'Reg Levy' <reg@mmx.co>, "'Dorrain, Kristine'" <dorraink@amazon.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Reg, I think it is just fine to wait on this subgroup until the end of the substantive discussions on the PDDRP. If no changes to the substantive elements of the never-used Policy are needed, then having a mediation mechanism in place for a never used Policy doesn’t seem terribly useful. So, I hybrid of the Neuman rule – if we don’t yet know its broken, don’t rush in to improve implementation. Best, Paul From: Reg Levy [mailto:reg@mmx.co] Sent: Tuesday, August 23, 2016 12:39 PM To: Dorrain, Kristine <dorraink@amazon.com> Cc: Jeffrey J. Neuman <jeff.neuman@comlaude.com>; Paul McGrady <policy@paulmcgrady.com>; David Tait <david.tait@icann.org>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) I agree—this is an unnecessary task that presupposes registries are bad actors. Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 [cid:image001.png@01D1FDD1.D503C000] UTC -7 On 23 Aug 2016, at 09:37, Dorrain, Kristine via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: I am very concerned that the formation of a mediation subteam to gather information presupposes the question. If in fact, there is a problem with brand owners running to ICANN to report pervasive bad faith activities by a registry rather than working things out with the registry, we don’t have evidence of this. We cannot presuppose that mediation is the right answer when we don’t know the question. If we want to create a sub team to investigate problems, lets do that. But creating a subteam to discuss a SOLUTION for which a problem has yet to be identified is putting the cart before the horse. Even if problems are identified, it’s not a foregone conclusion that mediation is going to be the right answer. Thanks, Kristine Kristine Dorrain Corp Counsel – IP | Amazon | 206.740.9339 dorraink@amazon.com<mailto:dorraink@amazon.com> From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Monday, August 22, 2016 10:53 AM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Paul, As much as I love the sentiment of giving peace a chance, isn’t that usually chanted when there is actually a war going on? My assumption is that unless there is evidence to the contrary, aren’t we at peace already ☺ At this point I am not aware of any complaints of a PDDRP nature (meaning that registries have profited off of the infringement of third parties as a result of their affirmative conduct – which is a paraphrase of the standard). Therefore, spending any time working on a mediation program for the pddrp when there is no evidence that there was any activity that would have led to a valid pddrp complaint seems like spinning our wheels. What it seems like you are talking about is a general mediation program for any complaints about registry activity whether or not of a pddrp nature. If we went down that path, I still think this subgroup is premature because we have not documented the types of “causes of action” for which mediation could or should be sought. That should be step 1. 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 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Monday, August 22, 2016 10:48 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Jeff, I agree with the general sentiment that if it’s not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it “gives peace a chance” in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway – talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org<mailto:david.tait@icann.org> www.icann.org<http://www.icann.org/> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

As Mary noted, a discussion of this sub-team’s focus shall be on the agenda for tomorrow’s call. So don’t miss it. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul McGrady Sent: Tuesday, August 23, 2016 6:51 PM To: 'Mary Wong'; 'Reg Levy'; 'Dorrain, Kristine' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Thanks Mary. Then postponement makes even more sense. No need to build it if the overall WG decides it doesn’t want it. The work may be necessary in the future, but it seems like the question of “If” should be decided before the “How.” Best, Paul From: Mary Wong [mailto:mary.wong@icann.org] Sent: Tuesday, August 23, 2016 5:36 PM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; 'Reg Levy' <reg@mmx.co<mailto:reg@mmx.co>>; 'Dorrain, Kristine' <dorraink@amazon.com<mailto:dorraink@amazon.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hello everyone – just a note that the co-chairs and staff are preparing to send out the agenda for the next WG meeting, and it is likely that the agenda will include at least a brief discussion of the timeliness and scope of work of such a Sub Team. If I may add, the staff understanding of the role of the Sub Team is not to discuss whether to add mediation to the TM-PDDRP (which would be a task for the full Working Group), but to develop some high-level principles that can guide the eventual creation and implementation of such a mechanism, if the Working Group ultimately decides to recommend adding it to the Procedure. For example, the Sub Team could contact other mediation service providers such as JAMS and Nominet (as suggested previously by some Working Group members) for information on what the mechanism might look like. It could also discuss some of the more open questions on this issue that Working Group members have raised already (e.g. whether a skeletal complaint is sufficient, whether mediation services must be provided by existing TM-PDDRP providers, etc.). Any and all general principles agreed on by the Sub Team would of course have to be brought back to the full Working Group for further deliberation – and this would be the case regardless of whether the Sub Team commences work now, or at some future (possibly more appropriate) point in the PDP. I hope this is helpful. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org<mailto:mary.wong@icann.org> Telephone: +1-603-5744889 From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>> Date: Wednesday, August 24, 2016 at 05:59 To: 'Reg Levy' <reg@mmx.co<mailto:reg@mmx.co>>, "'Dorrain, Kristine'" <dorraink@amazon.com<mailto:dorraink@amazon.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Reg, I think it is just fine to wait on this subgroup until the end of the substantive discussions on the PDDRP. If no changes to the substantive elements of the never-used Policy are needed, then having a mediation mechanism in place for a never used Policy doesn’t seem terribly useful. So, I hybrid of the Neuman rule – if we don’t yet know its broken, don’t rush in to improve implementation. Best, Paul From: Reg Levy [mailto:reg@mmx.co] Sent: Tuesday, August 23, 2016 12:39 PM To: Dorrain, Kristine <dorraink@amazon.com<mailto:dorraink@amazon.com>> Cc: Jeffrey J. Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; David Tait <david.tait@icann.org<mailto:david.tait@icann.org>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) I agree—this is an unnecessary task that presupposes registries are bad actors. Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 [cid:image001.png@01D1FD6F.992AC810] UTC -7 On 23 Aug 2016, at 09:37, Dorrain, Kristine via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: I am very concerned that the formation of a mediation subteam to gather information presupposes the question. If in fact, there is a problem with brand owners running to ICANN to report pervasive bad faith activities by a registry rather than working things out with the registry, we don’t have evidence of this. We cannot presuppose that mediation is the right answer when we don’t know the question. If we want to create a sub team to investigate problems, lets do that. But creating a subteam to discuss a SOLUTION for which a problem has yet to be identified is putting the cart before the horse. Even if problems are identified, it’s not a foregone conclusion that mediation is going to be the right answer. Thanks, Kristine Kristine Dorrain Corp Counsel – IP | Amazon | 206.740.9339 dorraink@amazon.com<mailto:dorraink@amazon.com> From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Monday, August 22, 2016 10:53 AM To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Paul, As much as I love the sentiment of giving peace a chance, isn’t that usually chanted when there is actually a war going on? My assumption is that unless there is evidence to the contrary, aren’t we at peace already ☺ At this point I am not aware of any complaints of a PDDRP nature (meaning that registries have profited off of the infringement of third parties as a result of their affirmative conduct – which is a paraphrase of the standard). Therefore, spending any time working on a mediation program for the pddrp when there is no evidence that there was any activity that would have led to a valid pddrp complaint seems like spinning our wheels. What it seems like you are talking about is a general mediation program for any complaints about registry activity whether or not of a pddrp nature. If we went down that path, I still think this subgroup is premature because we have not documented the types of “causes of action” for which mediation could or should be sought. That should be step 1. 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 From: Paul McGrady [mailto:policy@paulmcgrady.com] Sent: Monday, August 22, 2016 10:48 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'David Tait' <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Hi Jeff, I agree with the general sentiment that if it’s not broken, we should not be out looking for ways to fix it. However, in the case of building in a mediation mechanism, rather than a change to the elements of a complaint, I think we may want to make an exception here if it “gives peace a chance” in the long term. One of the complaints the IPC heard from the Registry House in Helsinki was that there is a tendency to run to ICANN Staff & Board with complaints instead of dealing with the registry in the first instance to see if it can be resolved. The additional of a mediation option seems, to me, to bake in an opportunity and method for that dialogue in advance of a more formal complaint (via PDDRP or to Staff/Board). In other words, all the mediation program would do is make a way forward for what we all aspire to anyway – talking our problems out with each other. Best, Paul From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Sunday, August 21, 2016 8:20 PM To: David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team) Just to be clear, this is about mediation as it relates to the Post Delegation Dispute Resolution Policy, not mediation of disputes in general. I still have a standing objection about the formation of this group and looking at mediating issues between a registry operator and a complainant as there has been no evidence for the need of such a program since there has been no evidence yet of any situation that could have given rise to a PDDRP dispute. I will continue to be a broken record on this l, but absent evidence demonstrating a need for any changes, we should not be spending any time on making those changes. Jeff Neuman On Aug 19, 2016, at 12:19 PM, David Tait <david.tait@icann.org<mailto:david.tait@icann.org>> wrote: Dear Working Group members At its meeting on 17 August 2016 the Working Group concluded that there was a need to convene a sub-team to review the issue of Optional mediation and put forward an outline proposal for consideration by WG. Staff would therefore invite those who would be interested in participating in this sub-team to respond to this email and we will begin the process of establishing the sub-team. We would kindly request that you send us any responses by 0900 UTC 24 August 2016 Please note that Petter Rindforth has already kindly volunteered for this sub-team. Kind regards, David Tait David A. Tait Policy Specialist (Solicitor qualified in Scotland) Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: + 44-7864-793776 Email: david.tait@icann.org<mailto:david.tait@icann.org> www.icann.org<http://www.icann.org/> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7752 / Virus Database: 4633/12811 - Release Date: 08/15/16 Internal Virus Database is out of date.