[Gnso-igo-ingo-crp] MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 20 July 2017

Thu Jul 20 19:09:48 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, 20 July 2017 at 16:00 UTC.

Mp3:  http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-20jul17-en.mp3

AC Recording:
<https://participate.icann.org/p2npgopqmme/?OWASP_CSRFTOKEN=3011643f1f7b0839
e912cc31b822a52f47df76a428b3e4dce623421de5d0964f>
https://participate.icann.org/p2npgopqmme/

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

Osvaldo Novoa

David Maher

Nat Cohen

Poncelet Ileleji

Paul Keating

  Apologies:   

 none

ICANN staff:

Mary Wong

Steve Chan

Berry Cobb

Dennis Chang

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/ZXrwAw>
https://community.icann.org/x/ZXrwAw

Thank you.

Kind regards,

Terri

-------------------------------

Adobe Connect chat transcript for Thursday, 20 July 2017

  Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection
Mechanisms Working Group call on Thursday, 20 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_Z
XrwAw
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_
ZXrwAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC
IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=gLT8tC_FT16L-fjjNvWzwY0Ub0vh-6deJwKcz2fS7T
4&s=i96hne7_g0VDZyWcYaVIhQzed29RC5P4WSx9KVn-ndk&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=gLT8tC_FT16L-fjjNvWzwY0Ub0vh-6deJwKcz2fS7T4&s=i9
6hne7_g0VDZyWcYaVIhQzed29RC5P4WSx9KVn-ndk&e= 

  George Kirikos:Hi folks.

  George Kirikos:How much for a quorum?

  Terri Agnew:this groups has 18 members

  Paul Tattersfield:Hi George & Petter

  Terri Agnew:**28 members

  Steve Chan:@George, there are no prescribed numbers for deciding whether
or not to conduct a WG call. It's up to the discretion of the WG leadership

  Philip Corwin:Waiting on audio operator

  George Kirikos:We're up to 5 now, so that's looking better (was just 2
earlier).

  Petter Rindforth:waiting...

  Terri Agnew:alerting op

  Osvaldo Novoa:Hello all!

  George Kirikos:Welcome Osvaldo.

  Philip Corwin:Wait now up to 4 minutes!

  Petter Rindforth:still waiting.... :-(

  George Kirikos:If we changed the call to start at 11:55 am (Eastern), one
would zip through the operators. :-)

  George Kirikos:[skips their 'peak' at the top of the hour]

  Jay Chapman:waiting on phone operator to pick up

  Jay Chapman:thanks, sorry not meaning to pile on :)

  Philip Corwin:Finally on audio, waiting one minute for Petter

  Terri Agnew:of course if any dial outs are needed, please let me know

  Nat Cohen:Yes, I'm on audio.  Hello everyone.

  Poncelet Ileleji:Hello all

  George Kirikos:Without wasting too much time on this, whatever's in the
UDRP doesn't preclude any other kinds of litigation to resolve the ownership
of the UDRP. See:
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000800.html

  George Kirikos:Just because ICANN delineates one procedure doesn't mean
it's the only option for a registrant.

  George Kirikos:*resolve the ownership of the domain, rather

  George Kirikos:It's not "another arbitration" since UDRP is not an
arbitration.

  Terri Agnew:Welcome Paul Keating

  Paul keating:hi.  i am text only right now.  will try to dial in

  George Kirikos:It didn't make sense.

  Mary Wong:We can try to rephrase or, if directed, delete this sentence.

  Mary Wong:Based on Phil's comment, maybe rephrasing is better.

  Mary Wong:@Phil, yes, that was the intention, hence these went under a
Preliminary Notes intro.

  George Kirikos:Whether it's an IGO or not is obviously decided by the
court itself (i.e. that's how they were able to assert immunity
successfully).

  George Kirikos:i.e you only get to Option 2 if it's an IGO recognized by
that court AND had immunity.

  Paul keating:@phil. who would add igos to the GAc list?

  Paul Tattersfield:The GAC list could be problematic as not all IGO's on it
have the right to imunity

  George Kirikos:It might be an IGO in Africa, but not be recognized as such
in Canada (not a member of that specific treaty), for example.

  Mary Wong:@Paul, as the list was prepared by the GAC, staff has assumed
that the GAC will update. When it sent the list over, the GAC specififed
that they may update it either every 3 years or when the next gTLD round is
launched. 

  Paul keating:@phil, what is the relevant jurisdiction and how determined?
registration agreement?  location of registrant?  complaint?

  George Kirikos:This document didn't capture all the past comments, in any
event (perhaps can repeat them in writing on the list).

  Mary Wong:This is also the list that the current implementation of the
adopted IGO-INGO recommendations is using, so there is a consistency
consideration as well.

  Mary Wong:@eorge, the new preliminary notes only tried to capture
substantive comments that may need amendment to the UDRP to be effective,
not all the comments that were made while the topic was being discussed.

  George Kirikos:Some jurisdictions/nations don't have arbitrations, by the
way. (something I read when researching IGOs)

  Paul keating:so it would be the jurisdiction in which the action had been
pending?

  George Kirikos:The jurisdiction where the court ruled in favour of the IGO
on immunity, presumably.

  George Kirikos:Anyhow, Option 3.

  George Kirikos:It's not really an either/or for Option 3 --- it can be
done in parallel to #1, #2 or #3, even.

  George Kirikos:Not just a monetary award ---- also a counterclaim, based
on other causes of action.

  George Kirikos:(e.g. employment law, etc.)

  George Kirikos:IGO, not NGO.

  Paul Tattersfield:Are the IGO's concerns about damages real? Wouldn't the
mutual jurisdiction clause just be a waiver of jurisdictional immunity
rather than immunity from execution which would normally require a separate
explicit waiver in most jurisdictions?

  George Kirikos:"quasi in rem" 

  Mary Wong:@Paul T, I believe you are right that they have mostly been
concerned with jurisdictional immunity. To my knowledge we've not heard any
concerns that enforcing a panel decision by transfer (for instance) would
raise immunity issues for IGOs.

  George Kirikos:Right, it's the IGO making an express, but limited, waiver
--- specifying that it's just a dispute over the domain that is to be
decided by the relevant national court.

  George Kirikos:(asserts it is an IGO, or is determined by a court to be an
IGO) :-)

  George Kirikos:To avoid the fake IGOs.

  George Kirikos:Damages, but also other causes of action unrelated to the
domain (e.g. employment lawsuit, etc.).

  George Kirikos:https://www.law.cornell.edu/wex/quasi_in_rem  "When hearing
quasi in rem actions, a court may only affect a named defendant's interest
in a specific named piece of property."

  George Kirikos:That's I think what we're trying to achieve.

  George Kirikos:+1 Paul K.

  Mary Wong:There is also a separate (different) legal issue of immunity
when it comes to UN employees.

  George Kirikos:Some registrars don't like being added to such a lawsuit,
though. :-)

  George Kirikos:Right, the in rem action is exactly the kind of thing I was
talking about, to counter Petter's example.

  George Kirikos:But, you don't have to rely on the ACPA, to assert in rem.
You can assert "in rem" or "quasi in rem" under non-statutory, common law
principles.

  Mary Wong:Thanks, Paul - that's helpful to know (about the ACPA process).

  Mary Wong:@Paul, that's where I'm coming from; the sense that not many
other jurisdictions will entertain these actions either in the same way or
at all.

  Mary Wong:@Phil, I believe several countries were considering an ACPA-type
statute but, as Paul says, we're not aware of any that actually did so.

  Poncelet Ileleji:Much appreciated @Paul

  George Kirikos:.uk DRP, yes.

  Mary Wong:Paul K has just said, very clearly, what staff was trying to
distinguish as well - the difference between a court action ending (or being
dismissed) for lack of jurisdiction and when the court dismisses an action
based on examination of substantive merits (which can only proceed if there
is not a jurisdictional problem).

  Philip Corwin:BTW, Paul, I like the fact that your proposal only requires
and amendment to the UDRP Rules, not the underlying Policy

  Philip Corwin:Policy changes will be much more difficult to advance beyond
this WG

  George Kirikos:Contract of adhesion --- courts will ignore that kind of
overbroad language. :-)

  George Kirikos:Compulsion --- harder to disobey a court's order, when
they're a party.

  George Kirikos:(easier to ignore an ex parte order)

  George Kirikos:Or challenge that ex parte order.

  George Kirikos:Right, but "in rem" involves only the property. e.g. XYZ vs
a Boat Located on Lake Ontario.

  George Kirikos:4k only specifies a court of "competent jurisdiction" ---
doesn't have to be in the same as the mutual one.

  George Kirikos:I think that 2nd option (#5) is moot, anyhow.

  George Kirikos:It had the fatal flaw I already identified.

  George Kirikos:I.e. the supplemental rules were missed.

  George Kirikos:You mean re-draft Option 3, the limited waiver.

  Mary Wong:@George, apologies that staff inadvertently did not paste the
last phase of your proposal into this document. Thanks for catching it!

  George
Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.htm
l

  George Kirikos:Is the message, that poked a big hole.

  Mary Wong:Paul's other suggestion starts in the middle of Page 2 of the
document on screen

  George Kirikos:Option #4:
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html

  George Kirikos:"open justice"

  Mary Wong:@George, can you repeat the rationale for limiting this Option
to new registrations, as I missed it? Thanks

  Paul Tattersfield:Thanks Mary especially your penultimate question saved
me having to ask

  George Kirikos:URS has no transfer option.

  Petter Rindforth:UDRP is also used for a great number of traditional
ccTLDs

  Paul keating:agreed

  Mary Wong:Actually, both will be problematic legally, sorry ("vitiate" and
"nullify")

  Paul Tattersfield:Is there a way of presenting any acceptable options once
worked through to the IGOs & GAC to see if they are acceptable to them
before we produce our final report? - A second preliminary report perhaps?

  Mary Wong:@Paul T, yes there is - the Working Group can publish a draft
Final REport for public comment BEFORE submitting the report to the Council
for action.

  Mary Wong:In addition, it may be worth considering also engaging in a
dialogue with the GAC and IGOs at that time.

  Paul Tattersfield:thanks, Mary

  Mary Wong:You're most welcome, Paul!

  George Kirikos:Same bat time, same bat channel.

  Terri Agnew:The next IGO-INGO Access to Curative Rights Protection
Mechanisms Working Group call will take place on Thursday, 27 July 2017 at
16:00 UTC for 90 minutes 

  George Kirikos:We should also start a Risk Analysis of all the options, at
some point.

  Paul Tattersfield:Very interesting meeting - thanks Paul & George, very
helpful to hear your proposals explained today

  George Kirikos:(which we started a few weeks back)

  George Kirikos:(i.e. Steve had a document that started the RIsk Analysis)

  Jay Chapman:Staff, my advance apology -i will be unable to attend next
week's call

  George Kirikos:Bye folks.

  Mary Wong:THanks, Jay, we will note.

  Paul Tattersfield:Bye all

  Jay Chapman:thanks, all

  Mary Wong:Thanks Phil and all!

  Terri Agnew:@Jay,noted

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