- Ws2-jurisdiction - lists.icann.org

Litigation Summaries in One Place -- Google Folder
by Greg Shatan May 28, 2017

May 28, 2017

All, Here's a link to a Google Drive folder with all of the litigation summaries completed up until now. https://drive.google.com/drive/folders/0B90h5wcghspFWHVZVncwSlVMNkU?usp=sha… Greg

1 0

Commercial Connect v. ICANN Litigation Summary
by Greg Shatan May 28, 2017

May 28, 2017

All, I have attached my summary of the *Commercial Connect v. ICANN *litigation in Word and PDF forms. I look forward to discussing the case at an upcoming meeting. Please respond to this email if you have any questions regarding the attached. Best regards, Greg

1 0

ICANN Litigation Review - VOLUNTEERS NEEDED
by Greg Shatan May 27, 2017

May 27, 2017

All, Let's complete the review of ICANN's litigations. Right now, we still have 15 unclaimed cases -- a number that has not changed in the last 2-3 weeks. To be fair to the members who have already volunteered, new volunteers should take the leading role in signing up now. Out of our 70 listed members, only 9 have signed up to review a case, and only 5 have submitted a review. 3 of our members account for 11 of our reviews (out of 13), and one of those members (Mathieu) has left. In order to get this done, we need to increase and broaden our efforts. If 15 members each picked up a case, we'd be covered. If 5 members picked up two cases, and 5 picked up 1, we'd be covered. I hope that I don't need to contact members individually in order to get volunteers. The official sign-up sheet is at https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjR… <https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjR…> The summary sheet to use (please copy) is at https://docs.google.com/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWl… A list of unclaimed cases is below. I'd be happy to sign you up, if you see a case on the list you want. Just let me know. I look forward to seeing the signup sheet completely filled as soon as possible. Greg Unclaimed cases: *Case* 1. *Netsphere, Inc, et al v. Baron and Ondova Limited Company* <https://www.icann.org/en/news/litigation/netsphere-v-baron> (lawsuit in the United States District Court, Northern District of Texas) 2. *Manwin Licensing International v. ICM Registry, et al* <https://www.icann.org/en/news/litigation/manwin-v-icm> (lawsuit in the United States District Court, Central District of California) 3. *Zuccarini v. Network Solutions, LLC, et al* <https://www.icann.org/en/news/litigation/zuccarini-v-network-solutions> (lawsuit in United States District Court for the Southern District of Florida) 4. *Subramaniam v. ICANN, et al* <https://www.icann.org/en/news/litigation/subramaniam-v-icann> (lawsuit in the Circuit Court for County of Washington, Oregon) 5. *ICANN v. RegisterFly* <https://www.icann.org/en/news/litigation/icann-v-registerfly> (lawsuit in United States District Court, Central District of California) 6. *Martinez v. RegisterFly et al.* <https://www.icann.org/en/news/litigation/martinez-v-registerfly> (lawsuit in the United States District Court, Middle District of North Carolina) 7. *WADND v. ICANN* <https://www.icann.org/en/news/litigation/wadnd-v-icann> (lawsuit in United States District Court for the Northern District of California) 8. *CFIT, Inc v. ICANN* <https://www.icann.org/en/news/litigation/cfit-v-icann> (lawsuit in United States District Court for the Northern District of California) 9. *Registersite.com v. ICANN* <https://www.icann.org/en/news/litigation/registersite-v-icann> (lawsuit in United States District Court for the Central District of California) 10. *SnapNames.com v. ICANN* <https://www.icann.org/en/news/litigation/snapnames-v-icann> (lawsuit in Superior Court of the State of California, County of Los Angeles) 11. *Syncalot, Inc. v. ICANN* <https://www.icann.org/en/news/litigation/syncalot-v-icann> (lawsuit in United States District Court for the Northern District of California) 12. *McNeil v. ICANN* <https://www.icann.org/en/news/litigation/mcneil-v-icann> (lawsuit in United States District Court for the Northern District of California) 13. *Dotster v. ICANN* <https://www.icann.org/en/news/litigation/dotster-v-icann> (lawsuit in United States District Court for the Central District of California) 14. *Smiley v. ICANN* <https://www.icann.org/en/news/litigation/smiley-v-icann> (lawsuit in Superior Court for the County of Los Angeles, California) 15. *Register.com v. Verio* <https://www.icann.org/en/news/litigation/register-v-verio> (lawsuit in United States District Court for the Southern District of New York, de-accreditation request, and other proceedings)

1 0

Questionnaire analysis
by Thiago Braz Jardim Oliveira May 25, 2017

May 25, 2017

Dear all, As I understand it, there were no objections in our last call to offering respondents an opportunity to respond to questionnaire/comments' analysis. Can I ask you how we are going to proceed on this? There have already been two calls in which comments were examined and perhaps we should start calling on their authors to participate in our next calls, should they wish. On a related point, our last call lingered on for perhaps too long in a discussion about the subgroup's mandate (mea culpa), and when the time came for an analysis of Just Net Coalition's questionnaire, not only we were left with little time for a more in-depth debate in response to the analysis provided by CW, but also the group was not actually provided with much of the substance of Just Net Coalition's questionnaire. Greg himself noticed that. So what I suggest is for us to come back to that questionnaire as we give Just Net Coalition, and I'm hoping they will accept it, the opportunity to comment on it. Best, Thiago Jardim Thiago Braz Jardim Oliveira Divisão da Sociedade da Informação Ministério das Relações Exteriores +55 61 2030 6389

3 2

Continuation of the discussion on SWG mandate
by Raphaël BEAUREGARD-LACROIX May 25, 2017

May 25, 2017

Dear all, I could not attend last call, but I had a look at the transcript and here are my 2c. This is also meant to serve as a start a discussion, so feel free to debate, challenge, refute, ... I don't have the ICANN experience that some of you have, but from what I understand it is preferable to keep ourselves focused on our precise task, which means *excluding *from consideration re/incorporation (or whatever you want to call it) of ICANN outside of California and/or US. Not because this precise issue is not an issue. I am convinced it is, and should certainly be discussed, especially considering long term. However we will not "square" this "circle" in this subgroup. I think if we want to produce something that will see some use, we should focus on how jurisdiction issues interact with the accountability of ICANN, assuming that ICANN stays as it is roughly speaking, so with the current organisational setup. It is true that in jurisdiction we can include the location where ICANN is incorporated. This has an effect on accountability, to the extent of California corporations law and any other Californian or US federal law I might not be aware of. However I don't think we are there to consider *where else *could be better, because the options are just too many, too different and entail radical change in the foundations of ICANN which are just beyond what we are supposed to do, I think. So rather than radical changes, we should aim at improvements of "the existing," so mechanisms, structures, contracts... So to conclude on that point, we should not overly restrict what layers of jurisdiction we consider, but I think we should agree not to consider that specific one. Thiago in the last call rightly mentioned that "accountability" is an open and equivocal concept. I think we should interpret it broadly. In that sense and referring to the CCWG charter that Greg circulated before, accountability can be framed as a system of "checks and balances." While this concept is distinctively American, I think we can agree that accountability evokes responsibility and justification for action. I would conceive improving ICANN's accountability as a process that would improve *predictability *of ICANN's actions as well as improve the understanding stakeholders have of ICANN's interests, motives, reasons for doing A and not B, etc. In that sense accountable shares some meaning with transparent, but not completely. Transparency is one component of accountability. "Raw" transparency is rather useless, to the extent that the ordinary person involved with ICANN at volunteer level is not able to sift through the mass of documents or understand what is going on. If we now consider jurisdiction, which is also a broad and equivocal concept, it may intersect accountability at several levels (the "layers" of jurisdiction). I don't think it is possible to realise the extent of this intersection just as a reflection exercise. In that regard I think that both the questionnaire and the case studies are useful so to distinguish what these intersection points may be. These two things (cases and questionnaires) are pretty much the only "empirical" means that we have at our disposal and they are certainly better than just abstract reflections on the question of jurisdiction and accountability... And finally to contribute to something that was discussed in the call, I think it is a good idea to further inquire on the questionnaire responses with the respondent, when such inquiry can shed further light on the response. So these discussions should not be a debate with the respondent over their answers, but more us listening to what they have to say (again when relevant; if answers are just straight no's then whatever) Best, -- Raphaël Beauregard-Lacroix Sciences Po Law School 2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15

1 0

Caption Notes-Recordings-Transcript links for Jurisdiction Meeting #32 - 23 May 2017
by MSSI Secretariat May 23, 2017

May 23, 2017

Hello all, The caption notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #32– 23 May 2017 will be available here: https://community.icann.org/x/yAHfAw A copy of the action items and raw caption notes may be found below. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers [cid:image001.png@01D2D3D5.B4AD5980] Action Items * Staff to reach out to respondents as per decision to invite respondents to the jurisdiction questionnaire. Raw Captioning Notes - Please note that these are the unofficial transcript. Official transcript will be posted 2-3 days after the call * Word Doc<https://community.icann.org/download/attachments/64946632/Jurisdiction_0523…> * PDF<https://community.icann.org/download/attachments/64946632/Jurisdiction_0523…> Decisions * Invite respondents to the questionnaire to the Jurisdiction sub-group meeting where the analysis of their response is being presented for comments on the analysis. Documents Presented * Follow Up on ICANN Legal Answers- RESPONSE FROM ICANN<https://community.icann.org/download/attachments/64946632/Follow%20Up%20on%…> * Strawman Draft of Mandate of Jurisdiction Subgroup<https://community.icann.org/download/attachments/64946632/Strawman%20Draft%…> * Jurisdiction_questionnaire_Comments_Just Net Coalition<https://community.icann.org/download/attachments/64946632/JX%20questionnair…> * ICANN Litigations Sign-Up Sheet<https://community.icann.org/download/attachments/64946632/ICANNLitigationsS…>

1 0

Revised Jurisdiction Subgroup Agenda for 23 May 1300 UTC
by Greg Shatan May 23, 2017

May 23, 2017

All, please see the attached revised agenda and documents (including additional documents not included with prior draft of agenda). Other than the sign-up sheets, you have received all of the documents with the prior agenda or in separate emails. Greg *Greg Shatan *C: 917-816-6428 S: gsshatan gregshatanipc(a)gmail.com

1 0

Agenda and Documents for Jurisdiction Subgroup Meeting 23 May 2017 @ 1300 UTC.
by Greg Shatan May 22, 2017

May 22, 2017

All, I have attached the proposed agenda for tomorrow's meeting along with related documents. The sign up sheets will be circulated later as will questionnaire evaluations (as soon as they are received from Subgroup members). Based on our work plan and on recent discussions of questionnaire responses, it is time to return to the task of clarifying the Subgroup's scope/mandate/assignment. To give us a bit of a fresh start on this topic, I've tried to collect the relevant portions of the Charter, Final Proposal and Transition Bylaw necessary to resolve the issue in the "Strawman Draft" of the Mandate of the Jurisdiction Subgroup. The document is purposefully heavy on excerpts from the "primary sources" and light on analysis, so that the Subgroup can consider the sources and conduct the analysis within the Subgroup. Since you've all seen the sources before (and hopefully, read them), perhaps we can discuss this on tomorrow's call. In any event, we can introduce the topic and decide how to proceed. I look forward to our call. Thanks! Greg *Greg Shatan *C: 917-816-6428 S: gsshatan gregshatanipc(a)gmail.com

2 2

Jurisdiction questionnaire - comments
by McAuley, David May 22, 2017

May 22, 2017

As a member of the WS2 Jurisdiction subgroup's Questionnaire-Response Review and Evaluation team, I submit this analysis of the response from Rita Forsi, Director General of the Ministry of Economic Development of Italy, and Italian GAC Representative (the "Forsi Response"). The questionnaire can be seen here<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire>. The Forsi Response can be seen here<http://mm.icann.org/pipermail/ccwg-acctws2.jurisdiction.questionnaire/attac…>. The Forsi Response provided commentary in reply to questions 1, 2, and 4.b. Those questions and the Forsi Response answers are also pasted in at the bottom of this email. Reviewer's Note: Consistent with my input in other workgroups, this analysis is my personal assessment and does not represent the views of my employer, Verisign, Inc., in any way. The Forsi Response With respect to Question 1., the Forsi Response states that Italy was directly involved in the so-called "dot wine" issue. It says that domain names which consist, contain or unduly evoke Geographical Indications (GI's) can easily be registered and used in a deceptive manner. And it says that this is because, in line with the American approach to GIs, they have not been accorded consistent protection as they would be if they fell under international treaties such as TRIPS and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration. The handling of the "dot wine" issue provides a good example of how U.S. jurisdiction of ICANN affected Italian business, the Forsi Response concludes. It posits this link between U.S. jurisdiction and ICANN's conduct: "The de facto non-recognition of GIs by US, and consequently by ICANN for example in its Registry Agreement and Uniform Domain Name Dispute Resolution Policy (UDRP), caused almost two years of intense debate ..." With respect to Question 2., the Forsi Response notes that Italy filed two Reconsideration Requests over the "dot wine" issue and both were rejected. [One RR is dated April 9, 2014, and can be seen here<https://www.icann.org/en/system/files/files/request-italian-government-09ap…> - ICANN's summary page of that RR is here<https://www.icann.org/resources/pages/14-19-2014-04-09-en>; the other RR is dated April 18, 2014, and can be seen here<https://www.icann.org/en/system/files/files/request-italian-government-18ap…> - ICANN's summary page of that RR is here<https://www.icann.org/resources/pages/14-26-2014-04-18-en>.] With respect to Question 4b., the Forsi Response says that conflicts of jurisdiction on the Internet could have implications with respect to the "EU acquis" - for example as regards data protection and GIs. (I am unsure of the precise meaning of "EU acquis" and considered this glossary term<http://eur-lex.europa.eu/summary/glossary/acquis.html> as I prepared this analysis.) The Forsi Response concludes: "For that reason it is necessary that an Independent third party studies possible conflicts of laws and jurisdictions in relation to the Internet and, on that basis and if warranted, consider options for action in order to prevent these conflicts and to solve them should they occur." Analysis I recommend that each member of the subgroup read the Forsi Response to draw your own conclusions. It is brief and to the point. The Forsi Response discusses an important issue in the ICANN community - the treatment of GIs within domain names. It is an issue that has challenged the community for some time and remains under debate in various WGs and other community fora. My personal view is that the "dot wine" issue, while important, is a matter of differing points of view within the community rather than an issue implicating jurisdictional considerations. It seems a policy issue, not a legal one. As I understand it, the issue in this debate concerns the treatment of a generic term as a TLD - in this case, "wine." The perceived harm to be guarded against would, presumably, be registration of certain domain names at the second or lower levels. Whether a case can be made to bar or limit the delegation of the TLD to prevent problematic lower-level registrations (e.g., Champage.wine or Toscana.wine), or not to bar nor limit delegation of the TLD because legitimate lower-level registrations might be available (e.g., table.wine or red.wine), neither seems to me to be a case premised on jurisdiction. Is it likely that ICANN's U.S. HQ-jurisdiction led to the complained of treatment of GIs? Or was that outcome attributable instead to the community debate/deliberation/decision process as that process unfolded with respect to new gTLDs and the Applicant Guidebook? Reasonable people may differ on that but in so doing it seems the debate enters the realm of opinion rather than fact. And as important as opinion is in the policy formation process, our jurisdiction inquiry is a fact-based effort. [Of possible note, if disputes should arise over registration of domain names in this regard, ICANN appears to be subject not only to U.S. jurisdiction but also to EU jurisdiction given that it maintains a physical presence in the EU in an engagement office in Brussels.] Finally, the Forsi Response appears to make a link that is debatable: "The de facto non-recognition of GIs by US, and consequently by ICANN ..." (underline emphasis added). I am unaware of any U.S.-based requirement or inducement that would seek to prevent (or even dissuade) a private organization from adopting a policy of protection toward GIs. To be fair, #1 of our questionnaire just asked about being affected by ICANN's jurisdiction "in any way." Even so, any effect here, if such exists, seems remote. In sum, then, and with respect, I think the Forsi Response makes an important contribution to the debate around geo-indications and domain names but is of limited impact in the discussions within our subgroup over jurisdiction. Best regards, David (in personal capacity) David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 -- Pasted questions (asterisk directing to explanation of "jurisdiction" omitted - available online) and Forsi Response answers (footnotes omitted - available online): 1. Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that "affected" may refer to positive and/or negative effects. Answer: Yes. In 2013-2014 Italy was directly involved in the so-called ".wine issue". Italy and European Union recognize the protection of Geographical Indications (GIs) through a very detailed regulation. The de facto non-recognition of GIs by US, and consequently by ICANN for example in its Registry Agreement and Uniform Domain Name Dispute Resolution Policy (UDRP), caused almost two years of intense debate among GAC members (US, Australia and New Zealand against the rest of the GAC), between GAC and the ICANN Board, between Governments and ICANN. In line with the American approach to the GIs, domain names which consist, contains or unduly evoke GIs, have not been accorded consistent protection as those defined in the International Treaty or the European Regulation. For that reason, such domain names can be easily registered and used in a deceptive manner. Italy asked for protecting GIs by reserving the registration of their respective domain names to the rightholders, according to the TRIPS provisions, but ICANN was reluctant to impose such safeguards to the candidate Registries. In the end .wine issue was closed not in a satisfactory but at least acceptable manner for Italian rightholders, but this could serve as a good example to show how the US jurisdiction of ICANN affected the Italian business. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that "affected" may refer to positive and/or negative effects. Answer: Yes, for the .wine issue, Italy filed two Reconsideration Requests, one of which was signed by the then Minister of Economic Development, Ms. Federica Guidi. Both the Reconsideration Request were rejected 4b. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Answer: In general, conflicts of jurisdiction on the Internet might have implications with respect to the "EU acquis", e.g. as regards data protection and geographical indications; For that reason it is necessary that an Independent third party studies possible conflicts of laws and jurisdictions in relation to the Internet and, on that basis and if warranted, consider options for action in order to prevent these conflicts and to solve them should they occur.

3 2

Litigation summaries: Schreiber v. Dunabin and Bord v. Banco de Chile
by Raphaël BEAUREGARD-LACROIX May 21, 2017

May 21, 2017

PDFs and .docx are attached. None of these cases are relevant for the mandate of this subgroup as far as I can tell. I will unfortunately not be able to make it to the call this week, apologies in advance; so I queue these for review during the call on the 30th (or later if there are higher priorities in the agenda at the moment.) Best, Raphael -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15

1 0