[bc-gnso] council agenda for Jan 13 - Motion #5 RAP

Phil Corwin pcorwin at butera-andrews.com
Tue Jan 11 21:52:34 UTC 2011

In regard to UDRP reform, ICA has been on the record for some time as being in favor of initiating a careful and deliberative process to review its functioning over the first decade of operation and then consider balanced reforms. For example, we have expressed the view to ICANN  that an expert and neutral third party should study the state of Internet-related trademark law jurisprudence in major jurisdictions and the compare it to UDRP standards and practice, with the aim of ensuring that they are not diverging. It's not clear to me why the IPC is so dead set against even initiating a conversation because, regardless of when new gTLDs are launched or the ultimate RPMs that accompany them, the majority of cybersquatting for the foreseeable future will occur at .com and other incumbent TLDs. So, while I have no plans to bang the drum on this matter, I would hope BC members would continue to think about how a UDRP reform effort might be responsibly undertaken and what benefits could accrue from it.

Also, as I noted in yesterday's call, the issue of substantive reform of UDRP decision standards should be thought of separate from the procedural issue of establishing standard agreements between ICANN and all UDRP providers to better ensure uniformity and predictability in decisions regardless of which arbitration forum is handling a case. The BC is on record as favoring that since its comment several months ago in regard to the proposed provider based in Jordan.

Finally, with all respect to Martin, I would hope that if and when the BC favors getting into the subject we would not set preconditions such as "safeguards/ring-fences existing policy elements as a minimum requirement", especially as I'm not sure what that means. Both complainants and registrants have legitimate concerns about the current administration of the UDRP - and don't forget that brand owners are sometimes the targets of UDRPs - and any reform process should be open to objectively evaluating all those concerns at its inception.

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of martinsutton at hsbc.com
Sent: Tuesday, January 11, 2011 7:36 AM
To: Berry Cobb
Cc: 'bc - GNSO list'; owner-bc-gnso at icann.org
Subject: RE: [bc-gnso] council agenda for Jan 13 - Motion #5 RAP


I had to abandon the call half-way through yesterday but after reading the GNSO motions and the subsequent exchanges below, I would like to add brief comments.

My concern is that some recommendations have been discarded completely within this motion, which is not acceptable.  There needs to be some follow through so that even if the council relegates items to a lower priority, that they remain on the 'to do' pile or a clear reason provided to ditch any recommendations completely.

In terms of the prioritisation, I would prefer to see the leading effort and resource applied to the Best Practices effort against Malicious Use, as this achieved unanimous consensus within the RAP WG.

With regards to the UDRP, I believe this does need to be reviewed for improvements now that it has been in place for a number of years untouched but I also recall that when the RAP WG began looking at these issues a couple of years back, it was anticipated the new gTLDs would have been launched well before this type of review could be undertaken, with the advantage of seeing how the new landscape impacted on the existing policy and processes.  This is obviously not the case and the work would potentially clash with the new gTLD launch activities, which needs to be taken into account before proceeding with a PDP. I also appreciate the concerns about UDRP dilution which is a real threat and wonder if the BC can work with the IPC to consider alternative wording for a motion that takes this forward in a reasonable timeframe but safeguards/ring-fences existing policy elements as a minimum requirement?



Group Risk
Manager, Group Fraud Risk and Intelligence | HSBC HOLDINGS PLC HGHQ
Group Security & Fraud Risk
8 Canada Square,Canary Wharf,London,E14 5HQ,United Kingdom

Phone.     +44 (0)20 7991 8074 / 7991 8074
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Email.       martinsutton at hsbc.com<mailto:martinsutton at hsbc.com>

"Berry Cobb" <berrycobb at infinityportals.com<mailto:berrycobb at infinityportals.com>>
Sent by: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org>

Jan 10 2011 19:50

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"'bc - GNSO list'" <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>



RE: [bc-gnso] council agenda for Jan 13 - Motion #5 RAP

I guess I was a sleep at the wheel this morning for the call.  I had not seen the GNSO motions prior to our call, and after hearing the discussion this AM, I knew something seemed suspicious.  The early morning fog prevented me from responding.  Thanks to Mike for posting this to the list.

As this motion #5 on RAP stands, I support a vote of "NO".  At the very least, this motion does not consider all the recommendations of the RAP and it does not make any reference to all the other RAP recommendations.  Why would the remainder of the RAP recommendations be omitted?  I am not familiar with how the Council reviews, submits motions, and votes on WG recommendations, but I find this current motion creating a gap and perhaps jeopardizing the WG process.  Being a member of the RAP-IDT, helping to create a priority list, I guess I never expected a motion resulting in a "hunt & peck" exercise.  Lastly, I do not want to speculate on the motivation of the Contracted Parties, who are the ones that submitted and seconded this motion, but I do think Mike touches on a fair question of why the current motion bypasses higher ranked RAP recommendations, like the Best Practices effort on Malicious Use (which received unanimous consensus by the RAP WG).  Swiss cheese with lots of holes is my is my gut feel.

WRT to the Fast Flux motion & recommendations, I cannot comment as I did not participate and this was before my time at ICANN.  However, one result of that WG also contains a "best practices" recommendation.  While I do not want to delay the FF efforts, I believe there to be more momentum for the RAP Best Practices Recommendation to act as the pilot for Best Practices Efforts within the ICANN\GNSO span of control.

WRT to the UDRP recommendation from RAP.....I agree with Mike that this will be fight, although that was not prevalent when the WG developed Unanimous Consensus on this recommendation.  The UDRP recommendation priority created a lot of friction within the RAP-IDT.  And if I recall correctly from our BC session this morning, a few of our members support delaying this PDP on UDRP.  I will remind that the BC did submit a position on the RAP Interim Report supporting this recommendation, although no formal position was established on the RAP Final Report.  Personally, I see fractures of the UDRP on both sides (brand holders vs domain investors).  It is time to review, update, and improve the UDRP.  I support its current prioritization as defined by the RAP IDT.  In same breath, if this will put us at odds with the IPC, I can also support saving this battle for another day.

To add clarification to Mike's comments about the RAP Uniformity of Contracts recommendation.........  The conundrum about this recommendation is that it only received "strong support but significant opposition" during the Pre-PDP WG efforts.  However, within the RAP-IDT efforts to prioritize all the recommendations, it received a third or fourth place priority over "unanimous consensus" RAP recommendations.  The RAP-IDT deliberated this issue some, and the conclusion is that the GNSO council should address this by first voting the UofC recommendation up or down first and then figure out if and how to move forward.

Bottom line, I recommend the BC & our Councilors support the priority assignment recommendations from the RAP IDT team and any motion presented to the GNSO Council about RAP efforts should be all encompassing.  Vote each RAP recommendation Up or Down, then assign the "UP" recommendations to the Prioritization Queue for WGs, and build a sense of urgency to get things moving along.

Thanks, B

Berry Cobb
Infinity Portals LLC
berrycobb at infinityportals.com<mailto:berrycobb at infinityportals.com>

From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Mike Rodenbaugh
Sent: Monday, January 10, 2011 7:31 AM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] council agenda for Jan 13

Thanks Marilyn for forwarding, I guess I've been deleted from the Council list... so will ask to be added again.

I have some concern about the resolutions re Fast Flux and especially re Registration Abuse Policies.  I think folding the FF recos into the RAP recos is ok in concept, but we can see that the contract parties are trying to bury that portion of the work re 'best practices'.  It was identified as the top priority after the two 'low hanging fruit' items identified by the RAP-Implementation Drafting Team.  Yet, the motion addresses only those two items and the UDRP review, which was identified as 3d priority.

I know the IPC will vehemently fight against UDRP review now.  My strong view is it is not time for that fight yet either, it will be a big fight... and that the non-controversial yet difficult Best Practices work should be done first as recommended by the Implementation Team, and indeed that work might help to inform the UDRP review effort.

Also Item IV of the RAP-IDT recos, Uniformity of Contracts, is a key issue for all non-contracting party stakeholders.  By mass in RAP-IDT, the contracting parties got a low priority, but from our perspective it should be a bigger priority that UDRP review.  At minimum, there should be a plan to start that work, as well as the Best Practices work, before any agreement on UDRP review is made.

Curious how other members, particularly those that have been active in the RAP group, thing about these motions pending before Council.

Mike Rodenbaugh
tel/fax:  +1 (415) 738-8087

From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Marilyn Cade
Sent: Monday, January 10, 2011 6:47 AM
To: bc - GNSO list
Subject: [bc-gnso] council agenda for Jan 13


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