[bc-gnso] RE: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)

Phil Corwin psc at vlaw-dc.com
Sat Dec 3 17:55:22 UTC 2011

I have no objection to the proposed draft insofar as it relates to COI.

However, I think there is a bigger process question - are we, the BC,  for or against various constituencies being able to reopen aspects of the new gTLD program at this point in time, between approval in Singapore and opening of the application window?

There is a big difference between focusing in on implementation details (as is being done within the IAG on the TM Clearinghouse) and proposing significant substantive changes to the Applicant Guidebook and registry contract requirements, such as what the Regy Constituency has done by proposing a COF to substitute for the COI. This continued operational churning of the new gTLD program (as well as the political churning we are likely to see at this coming week's Senate hearing) create nothing but uncertainty for potential applicants being asked to risk significant amounts of capital to enter into a process that may not provide them with an answer for years.

But, back to my main point, is the BC against reopening the process at this time or are we saying that since the Regy has opened Pandora's box we feel empowered to do so as well? While ICANN has stated that improvements in the requirements will be made as the program develops, there has been zero experience with new gTLDs to justify further tinkering at this point in time.

In that regard, I take note of this proposed portion of the new BC position -

The BC further has identified several inadequacies in the protection and safeguards for existing registrants, and users, and will submit, again, a request for improvements and changes in the trademark protection mechanisms, before the launch of the new gTLD Program.
 Maybe I missed it, but I don't recall any discussion among BC members to take such action. If those proposed "improvements" include lowering the burden of proof for a URS complaint and allowing transfer of the domain to the complainant at the end of its registration period, making URS the functional equivalent of UDRP, I will be objecting at every step in the process -- especially since NAF and WIPO have said that there is no way they can do a URS at the proposed pricing of $300 (for complaints covering multiple domain names), and Kurt Pritz concede in Dakar that ICANN was having difficulty finding qualified arbitrators and would have to revisit that.
But the broader point is that you can only implement a settled Guidebook, not a moving target, and that new gTLD applicants deserve some program certainty at this critical juncture.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004

"Luck is the residue of design" -- Branch Rickey

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: Friday, December 02, 2011 10:45 PM
To: 'Bc GNSO list '
Subject: [bc-gnso] FW: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)

Last night, Marilyn Cade submitted extensive edits to our draft comments on the Continuity of Operations Fund proposal from the Registries.   See second attachment and Marilyn's summary of her comments below.

Per the plan I sent this week, we will now allow 7 additional days of review time, with a target date to submit by next Friday 9-Dec.   That would make us just one week late for ICANN's comment deadline.

Rapporteur Jon Nevett will take first look at Marilyn's edits and will circulate a new version over the weekend.

From: marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>
To: bcprivate at icann.org<mailto:bcprivate at icann.org>
Subject: IMPORTANT: SEE PROPOSED CHANGES/EDITS IN THE BC DRAFT: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Date: Thu, 1 Dec 2011 10:49:10 -0500

I propose several changes  and an enhancement about why the BC cares about this topic, and also note that we would like similar opportunity to achieve changes in the new gTLD program -- regarding IPR protections. I will send a separate email about that topic, based on discussions with Steve, Sarah, and others about the existing call for improvements in that area. [Separate email]. My comments are as an individual member of the BC on this BC position statement.

The changes I propose to this draft are consistent with BC's positions regarding priority of protecting registrants and users.

See 2, where I added ICANN's responsibiilty to act in the public interest.
3. I explicitly stated that we do not support the Regy proposal. That was missing from our statement.
I also said that improvements could be made in the COI. See 4.
5. I also added in that the BC fears a high risk of failure of some of the new gTLDs.
6. I added that we expect there to be appropriate legal agreements in the contracts that would allow for the protection of registered names.

I deleted the old 7, which seemed to say on the one hand, and then on the other hand. The purpose of this statement is to either support the Registry proposal, or oppose it. I oppose it, for the reasons I noted in my edits. I do think that COI can be improved, especially as it regards 'brands' gTLDs.

I was also concerned in reading the transcript of the actual panel in Dakar -- I was not able to attend in person -- the panel looked heavily stacked toward supporters of the new gTLD program.  However, the important news may be that if ICANN will accept suggested changes form a single constituency, we should be aggressively be addressing our call for changes in Trademark protection.

Marilyn Cade

From: Steve DelBianco <sdelbianco at actonline.org<mailto:sdelbianco at actonline.org>>
Date: Wed, 30 Nov 2011 18:29:48 -0500
To: 'Bc GNSO list ' <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: FW: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)

Thanks to all for engaging in the email discussion over these comments.

However, I don't think we've seen any specific edits on the draft circulated last Tuesday 22-Nov.

Ron and Phil proposed a more extensive critique of the Guidebook's COI plan, but the scope of this comment is reacting to the Registry proposal for an alternative mechanism (COF).  I would strongly suggest that Ron and Phil individually submit their concerns to ICANN, of course.

Mike Palage advised us to be careful about conflicts of interest, so I propose a simple way to do this quickly and transparently:

If any BC member objects to the BC filing the attached draft comment , please REPLY ALL and indicate your objection and reason.   If any member objections are noted by midnight UTC on 1-Dec, we will extend the process and ask the membership to vote on alternate versions of BC comments.   This would mean our comments are submitted late, but might still be considered.

If no objections are noted we will post the attached draft to ICANN on the closing date of 2-Dec.

Thanks again for engaging in this discussion.

(vice chair for policy coordination)

From: Steve DelBianco <sdelbianco at actonline.org<mailto:sdelbianco at actonline.org>>
Date: Tue, 22 Nov 2011 19:04:17 -0500
To: "'bc-GNSO at icann.org<mailto:'bc-GNSO at icann.org> GNSO list'" <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)

Per discussion in Dakar and on our 10-Nov member call, here is a draft of BC comments on the a proposed alternative to the for Continuity Operations Instrument in the new gTLD Program.

Jon Nevett prepared this draft.

This comment period and docs are described here<https://www.icann.org/en/public-comment/rysg-proposal-cof-17oct11-en.htm>.

These comments are due 2-Dec, giving us 10 days for review and approval.   This is less than the 14-day period required in our charter, so I am requesting an expedited review period.  If any member has substantive objections to the expedited review, we can go to 14 days and submit our comments after the ICANN due date.

All BC members are invited to suggest edits.     Please use track changes and circulate to BC list.

Thanks again to Jon for taking the lead on this.

Steve DelBianco
vice chair for policy coordination, BC

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