[Gnso-igo-ingo-crp] MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 13 July 2017
Terri Agnew
terri.agnew at icann.org
Thu Jul 13 18:59:43 UTC 2017
Dear All,
Please find the attendance and MP3 recording along with the AC recording and
chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held
on Thursday, 13 July 2017 at 16:00 UTC.
Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-13jul17-en.mp3
AC Recording:
<https://participate.icann.org/p5274qbiyij/?OWASP_CSRFTOKEN=3011643f1f7b0839
e912cc31b822a52f47df76a428b3e4dce623421de5d0964f>
https://participate.icann.org/p5274qbiyij/
The recordings and transcriptions of the calls are posted on the GNSO Master
Calendar page: <https://gnso.icann.org/en/group-activities/calendar>
https://gnso.icann.org/en/group-activities/calendar
Attendees:
George Kirikos
Petter Rindforth
Paul Tattersfield
Phil Corwin
Jay Chapman
Mason Cole
Apologies:
none
ICANN staff:
Mary Wong
Steve Chan
Berry Cobb
Maryam Bakoshi
Terri Agnew
** Please let me know if your name has been left off the list **
Mailing list archives: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/>
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/
Wiki Agenda page: <https://community.icann.org/x/R2XwAw>
https://community.icann.org/x/R2XwAw
Thank you.
Kind regards,
Terri
-------------------------------
Adobe Connect chat transcript for Thursday, 13 July 2017
Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights
Protection Mechanisms Working Group call on Thursday, 13 July 2017 at 16:00
UTC for 90 minutes .
Terri Agnew:agenda wiki page:
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_R
2XwAw
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_
R2XwAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC
IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GLdQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1
A&s=gkE_X4CfLHxQlH3fbJkXYVVugKIMjRHY0mUh-7ApjzM&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GLdQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1A&s=gk
E_X4CfLHxQlH3fbJkXYVVugKIMjRHY0mUh-7ApjzM&e=
George Kirikos:Hi folks.
Paul Tattersfield:Hi George, Everyone
George Kirikos:Hey Paul.
Paul Tattersfield:This looks very cool is it near you George?
Paul Tattersfield:https://pbs.twimg.com/media/DDHaEsVXUAALFkS.jpg:large
George Kirikos:No, I'm in Toronto. That appears to be somewhere in Western
Canada? (perhaps the Rocky Mountains?)
Paul Tattersfield:Ah a long way lol - Banff
George Kirikos:I found a very interesting article about the UN and
Immunity, in relation to fraud, which had a very interesting quote. See:
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.foxnews.com_world_20
16_07_12_fraud-2Dwhat-2Dfraud-2Dwatchdogs-2Dfind-2Dun-2Din-2Dstate-2Dnear-2D
denial-2Dabout-2Dinternal-2Dcorruption.html
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.foxnews.com_world_2
016_07_12_fraud-2Dwhat-2Dfraud-2Dwatchdogs-2Dfind-2Dun-2Din-2Dstate-2Dnear-2
Ddenial-2Dabout-2Dinternal-2Dcorruption.html&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mS
VzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GL
dQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1A&s=DdTKmZH2sH5GA0nfsoE8bxLliM_SWjf0_U
8OAnkLV7E&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=C3GLdQ_WhgDxVyka2Qbiyf5XVNbSwyfz5bjnvzVHf1A&s=Dd
TKmZH2sH5GA0nfsoE8bxLliM_SWjf0_U8OAnkLV7E&e=
George Kirikos:"And follow-up often just ends: the U.N. bureaucracy is
reluctant to prosecute fraudsters even when discovered. The reason: it may
involve lifting "the immunity of witnesses and related United Nations
documents, and may exposure the United Nations organizations to
counter-claims."
George Kirikos:So, the question is: If countries don't change their fraud
laws, to allow these actual fraudters to be prosecuted, why should ICANN be
changing its rules? What's different about domain names?
George Kirikos:This provides even further support for Option #1.
Jay Chapman:don't have scroll ability yet
Mary Wong:@Jay, you should do. Maybe reboot AC?
Terri Agnew:@Jay, try logging in with a differnt browser
George Kirikos:Links to everything at:
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000781.html
Jay Chapman:thanks
George Kirikos:It wasn't the only basis -- just evidence of TM (not
proof).
George Kirikos:WIPO is trying hard to eliminate court action.
Unacceptable.
George Kirikos:+1 Petter. Non-commercial entities can hold TMs. Indeed,
ICANN holds TMs.
Paul Tattersfield:Ckass 35 for chariable fund raising
Mary Wong:I think the comment was directed not toward the entity holding a
TM, but the use to which a TM must be put (i.e. use in commerce)
Paul Tattersfield:Class 36! bad typo
George Kirikos:I think more broadly, a trademark right comes from being an
indicator of source for wares/services.
George Kirikos:So, to the extent that an IGO is a source of any services,
then it would broadly qualify.
George Kirikos:Sometimes, "services" might be as broad as "advocacy" or
"communications to the public", etc.
George Kirikos:It's such a low burden.
Petter Rindforth:Agree, "commercial" is an old way to describe trademarks
George Kirikos:IGOs can always use law enforcement/courts in cases of
emergencies.
George Kirikos:If "crime" is so obvious, why is the "first step" going to
ICANN, rather than going to the police?
Mary Wong:On the question of creating a new form of URS - note that our
Charter has a two-step instruction: first consider if the existing
mechanisms adequately address the needs of IGOs and INGOs, and, secondly, if
not, whether a new, narrowly tailored DRP should be developed.
Paul Tattersfield:The quickest way is to ask the registrars for scam sites
most are very helpful and very timely
Mary Wong:In relation therefore to the question of whether it is within
scope to develop a new rapid takedown procedure - presumably, if the WG
agrees that this is not necessary it is because the WG believes that
existing mechanisms (i.e. the URS in this case) does indeed adequately
address IGO needs?
George Kirikos:And hosting companies, or payment processors, etc.
Paul Tattersfield:exactly George
Paul Tattersfield:Is there a situation where a state or an IGO can inovke
immunity for a counter claim or an appeal on a matter initially determined
by a court?
George Kirikos:But, the UDRP decision should NOT be respected --- de novo
means "start from a fresh slate". That's why Option 1 is the option that
makes most sense, since the IGO would have failed in its undertakings made,
the price paid for utilizing the UDRP.
George Kirikos:I disagree. "Secret advice" can't form the basis/foundation
for our work.
Petter Rindforth:Having servered 16 years as panelist, I agree wih Phils
conclusion
George Kirikos:As I noted, there could be counter-measures to that (e.g.
in rem, sue the registrar/registry etc)
Mary Wong:@Paul T, I'm far from an expert but it would seem logical that,
once an IGO has submitted to a court's jurisdiction, it cannot piecemeal
invoke immunity for a specific part of that suit (e.g. a counterclaim).
Paul Tattersfield:agree Mary, however they are only waiving jurisdictional
immunity not immunity from execution
George Kirikos:@Mary: unless, as Option 3 advocated by Paul Keating, there
was only a *limited* waiver in the UDRP, instead of a general waiver of
immunity.
Mary Wong:On the vitation question (Option 1), staff had also raised the
question of whether vitiation is legally correct.
George Kirikos:(i.e. the limited waiver would be with respect to just the
domain name itself, and nothing else)
Paul Tattersfield:I think it worth noting Phil The kind of miscreants and
harm that Brian was citing wouldn't even file a UDRP response never start a
court action
Paul Tattersfield:never mind
George Kirikos:@Mary: vitiating has to do with how the Registrars (who are
ordered to follow the UDRP) handle the UDRP outcome.
George Kirikos:It's not in the courts at all.
George Kirikos:i.e. Option #1 says "registrars will disregard the outcome
of the UDRP" That is what vitiation achieves.
Mary Wong:@George, when we speak of "vitiating" a panel decision, that can
have substantive consequences legally. If it is just about how registrars
handle the decision, then we may wish to consider using another word instead
of "vitiate" (which has a specific legal meaning).
George Kirikos:If it achieves the same effect, the wording can change,
Mary.
Mary Wong:Thanks, George - let's figure it out when we come to the text of
the draft Final Report.
George
Kirikos:http://www.foxnews.com/world/2016/07/12/fraud-what-fraud-watchdogs-f
ind-un-in-state-near-denial-about-internal-corruption.html
George Kirikos:Here was the quote again: And follow-up often just ends:
the U.N. bureaucracy is reluctant to prosecute fraudsters even when
discovered. The reason: it may involve lifting "the immunity of witnesses
and related United Nations documents, and may exposure the United Nations
organizations to counter-claims."
George Kirikos:What's so special about domain names, when national govts
don't create special procedures to allow IGOs to file cases in the event of
fraud?
George Kirikos:Due process is *so* important to national authorities that
they allow that fraud to continue.
George Kirikos:(new hand up, just to add a couple more points re: the
specifics of the proposal)
Petter Rindforth:Mary: A perfect summary of what I tried to say ;-)
Paul Tattersfield:@Mary not all IGOs have immunity - eg EuroControl
Paul Tattersfield:Isn't it an ADR?
George
Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.htm
l
George
Kirikos:http://www.dreyfus.fr/en/marques/france-a-domain-name-transferred-by
-udrp-decision-was-finally-returned-to-its-initial-owner/
George Kirikos:An "ADR" is any alternative to courts. :-)
George Kirikos:A mediation is also an ADR.
George Kirikos:Yes, but those rare cases are going to involve the MOST
VALUABLE DOMAIN NAMES.
George Kirikos:And, if it's such a "rare case", why is ICANN getting
involved --- why not say "it's such a rare case, we'll just let the courts
handle it". UDRP wasn't designed for 100% of all potential disputes.
Jay Chapman:I agree Phil -very rare. In fact, it will only happen where
the domain registrant believes its conduct and domain name are worthy of the
utmost protection and defense - that defense should not be limited by us or
ICANN
George Kirikos:+1 Jay
George Kirikos:Forum shopping ---- changing who handles the dispute, i.e.
an arbitration panel, vs. a court.
Berry Cobb:@Paul - can you provide a souce that states EuroControl does
not have immunity? I'm curious as it is listed on the list provided by the
GAC.
Jay Chapman:Phil, couldn't a domain registrant appeal to a higher court
even if the lower court determined that the IGO's immunity to be valid?
Paul Tattersfield:The IGOs are not seeking immunity to defend their own
assets, they are seeking immunity from a counter claim when they have
initiated the original action.
George Kirikos:(my hand is new)
Mary Wong:@Jay, the success of such an appeal will need to be based on the
fact that the initial judge got the law on immunity wrong. Then everything
goes back down to the initial court again.
Jay Chapman:I understand, Mary - it would be a narrow appeal solely
related to the immunity issue
Jay Chapman:but an appeal, nonetheless
Paul Tattersfield:@Berry yes it is on their list :) - I was looking at
quite a few IGOs and their articles I was planning to send something to the
list but have been taken away by non ICANN matters - If you have an email
address I can send you details before I put them on the list
Berry Cobb:@Paul - thanks much. I can just wait until you send to the
list.
Mary Wong:@Jay, thanks - and this also seems to be what Petter is saying;
there is nothing to stop either party from going to court (including
appealing from a lower court decision)
Jay Chapman:Excellent point on licensee/agent/appointee, George
George Kirikos:They wouldn't have to raise that point since they're
already in court.
George Kirikos:i.e. the contract of adhesion is meaningless, unless you
get to BINDING arbitration.
George Kirikos:New Hand if others have nothing more.
Jay Chapman:have there been any substantive points to consider that argue
against the licensee/agent solution?
George Kirikos:Not really, Jay.
Petter Rindforth:Mary's hand is also up
George Kirikos:I had a new hand.
George Kirikos:Still 10 minutes left.
Paul Tattersfield:Would it be better for any such new (improved)
arbitration procedure to be for all UDRP disputes not just IGOs?
George
Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.htm
l
Paul Tattersfield:I think they would only be waiving jurisdictional
immunity in most jurisdictions
George Kirikos:This only goes to the WAIVER aspect.
George Kirikos:Personal views, but let's see what others think.
Paul Tattersfield:how can you enforce damages if they haven't waived
immunity from execution?
George Kirikos:Have it on the agenda, so others can input, not just us.
George Kirikos:Open court principle , too, for the Option 2.
George Kirikos:Multiple possible levels of appeals.
George Kirikos:(which some in the chat room seem to support)
George Kirikos:Outside our scope to look at arbitration for everyone
(that'd be the RPM PDP).
George Kirikos:But, I'd be opposed to binding arbitration. I prefer the
less rigged system of the courts.
George Kirikos:Some IGOs might be only valid in certain countries.
George Kirikos:e.g. an IGO in Egypt/Syria might not have immunity in
Canada.
George Kirikos:(or the USA)
Paul Tattersfield:IGOs can only assert immunity in Memberr's jurisdictions
George Kirikos:@Paul: and the nature of that immunity will differ, as we
know, i.e. functional immunity vs. absolute, etc.
George Kirikos:GAC advice was hilarious.
George Kirikos:Looks like it was written by WIPO.
Jay Chapman:I apprecaite the discussion - thanks to everyone
Terri Agnew:The next IGO-INGO Access to Curative Rights Protection
Mechanisms Working Group call will take place on Thursday, 20 July 2017 at
16:00 UTC for 90 minutes
Jay Chapman:appreciate :)
George Kirikos:Bye everyone. Have a great week. Game of Thrones Sunday,
woohoo! :-)
Paul Tattersfield:Great discussion thanks Phil , Everyone bye all
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