[Gnso-igo-ingo-crp] MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 15 June 2017
Terri Agnew
terri.agnew at icann.org
Thu Jun 15 19:03:58 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, 15 June 2017 at 16:00 UTC.
Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-access-15jun17-en.mp3
AC Recording:
<https://participate.icann.org/p4vgo7ydly3/?OWASP_CSRFTOKEN=fe4916c8d08a1d57
b6033c272f8baf21b82328e1f63d18ee81e3277664cd772f>
https://participate.icann.org/p4vgo7ydly3/
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
David Maher
Phil Corwin
Jay Chapman
Paul Keating
Apologies:
Mason Cole
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/SEfwAw>
https://community.icann.org/x/SEfwAw
Thank you.
Kind regards,
Terri
-------------------------------
Adobe Connect chat transcript for Thursday, 15 June 2017
Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection
Mechanisms Working Group call on Thursday, 15 June 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_S
EfwAw
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_
SEfwAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC
IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=94kudPvxsE4Kv6BchTlNVXy_Uhf4K5cGOJwfk32lb-
A&s=tWz0YM622-NQssQii9SogtfAHC5py1wAc2SrUPdpivk&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=94kudPvxsE4Kv6BchTlNVXy_Uhf4K5cGOJwfk32lb-A&s=tW
z0YM622-NQssQii9SogtfAHC5py1wAc2SrUPdpivk&e=
George Kirikos:Hi folks.
Petter Rindforth:Hi there!
Paul Tattersfield:Hi
Philip Corwin:Hello all
Terri Agnew:Welcome Paul Keating
Paul Keating:Hello all.
George Kirikos:Can we get the documents in PDF format, by the way? (as I
noted on the list) The spreadsheet in particular is causing me problems.
Berry Cobb:@George - I will do the XLS in PDF after the call. It will
take me time to size each sheet so that it will print in PDF in a useful
way. Some tabs have over 3000+ rows. Apologies for not thinking of it
prior to the call.
Paul Tattersfield:I think the spreadsheet will require a lot of
reformating to get in a pdf format because of the quantity of data
Mary Wong:The impact analysis document has also been posted to the WG wiki
space as a PDF:
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_S
EfwAw
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_
SEfwAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC
IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=94kudPvxsE4Kv6BchTlNVXy_Uhf4K5cGOJwfk32lb-
A&s=tWz0YM622-NQssQii9SogtfAHC5py1wAc2SrUPdpivk&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=94kudPvxsE4Kv6BchTlNVXy_Uhf4K5cGOJwfk32lb-A&s=tW
z0YM622-NQssQii9SogtfAHC5py1wAc2SrUPdpivk&e=
Mary Wong:@Paul T, yes
Mary Wong:@Steve, thank you - nothing from me
George Kirikos:Or, save the spreadsheet in Open Office or Google Docs
formats, instead, if Excel will export to those.
George Kirikos:Since, Excel format is causing various problems.
Berry Cobb:@George, I will try that as well.
George Kirikos:(e.g. Intro Tab is completely blank for me in one piece of
software, normal in other)
Paul Tattersfield:the raw data is very useful. If you have the correct
software it is far easier to analyse it in a spreadsheet format rather than
a pdf
George Kirikos:2nd setennce is now answered by "yes", since the lawsuit is
over at that point, so they can transfer.
Berry Cobb:I'd just add to this document (not including George's comments)
is really just meant as a starter draft to spur deliberations on the
advantages/disadvantages. The content statements are very much in raw form,
and it is up to the WG to decide whether they are useful or should be
amended.
George Kirikos:Mute?
Paul Keating:To Clarify: the court's order must be to dismiss as a result
of teh NGO's motion or defense asserting immunity.
George Kirikos:3 years, yes.
Mary Wong:@Paul, to the extent that the vitiation is contingent on a
court's substantive ruling (rather than just a ruling that an IGO has
immunity), that will probably need to be clarified and added to the Final
Report.
Paul Keating:@PHIL, Option 1 changes the UDRP. We must insert the
vitiation language.. Otherwise, the Respondent would lose the domain based
upon the post-UDRP dismissal based on immunity.
Paul Keating:@Mary, I agree completely. The vitiation must be limited to
a dismissal based upon immunity.
George Kirikos:@Paul: it doesn't change the UDRP. It negates the UDRP ---
it's an instruction to the registrars, that they are to ignore the UDRP
ruling.
Mary Wong:@George, that is why the staff is raising the concern we did -
how is that dealt with legally?
George Kirikos:It's like saying a registrar is free to ignore a court
action, if it's not brought in a competent forum.
George Kirikos:e.g. someone sues me in Iran, which has no jurisdiction
over a matter. Tucows is free to ignore anything coming from an Iranian
court.
Paul Keating:Easy. Domain is transferred based on the UDRP.
Paul Keating:THis is the same that would occur if the case were dismissed
for any reason.
Philip Corwin:I greatly respect Paul's opinion on UDRP matters, and his
response is consistent with that of other UDRP panelists and litigating
attorneys that I have discussed this with.
George Kirikos:IGOs are trying to have it both ways, then, that they're
concerned about "Mutual Jurisdiction" being a waiver, and then arguing that
it's not a waiver. Option 1 helps clarify that.
George Kirikos:Option 1 is consistent with the 'grand bargain' that
created the UDRP, that it was not intended to create any new rights that
were superior to those from the courts.
Mary Wong:@Paul, agree - that's why we are raising the issue. As things
stand, the fate of the panel decision lies with the court - there is no rule
about vitiation.
Philip Corwin:Concur that Option 1 would require some change in the UDRP
-- as would Option 2. They are equivalent in that respect.
Paul Keating:@Peter - would the UDRP be handled by WIPO :-)
Philip Corwin:Does it matter which accredited UDRP provider handles the
UDRP if the judicial appeal (or arbitration per Option 2) is a completely de
novo procedure per the national law it was brought under?
George Kirikos:Who is talking?
Terri Agnew:Paul, we can hear you
Philip Corwin:Whether WIPO should be permitted to handle a post-UDRP
scenario under Option 2 is something we should discuss in another meeting
when we discuss potential elements of an Option2 procedure.
Terri Agnew:Paul Keating is speaking
Paul Tattersfield:yes
Philip Corwin:Prior post shoud have read "post-UDRP arbitration scenario"
George Kirikos:Also, which remedies, etc (in law, transfer of the domain
need not be the required remedy).
George Kirikos:Trying to reinvent/copy the law --- that reinforces that
the court of law is the ideal forum.
George Kirikos:Since, any differences would be biased in favour of IGOs.
i.e. basic game theory is that IGOs would only assert that immunity if they
believe that it's a benefit to them.
George Kirikos:Basic forum shopping.
Mary Wong:@Paul, thanks for the topic suggestions - another we'd add is,
what are the arbitration rules that would apply
George Kirikos:"We're going to follow Canadian law, but with less
qualified decision-makers" === bad
Jay Chapman:A lot of work, Paul K, but I don't disagree
George Kirikos:Option 3 = limit the scope of the immunity waiver.
George Kirikos:Paul had proposed that years ago, but it hadn't been
seriously considered by the group.
Philip Corwin:@Paul--detailed discussion of key elements of a
post-immunity arbitration can certainly consider waiver of monetray damages
and other key issues
Paul Keating:correct
George Kirikos:What Paul was saying, though, was to KEEP IT IN THE COURTS,
but limit what the court can consider (i.e. only consider the fate of the
domain).
George Kirikos:i.e. the "cause of action" that can be brought by a loser
in a UDRP is only about the fate of the domain name, not $100,000 ACPA
damages, or employment issues with an IGO, or fraud by the IGO, or other
causes of action.
George Kirikos:But, the IGO explicilty must waive immunity and agrees to
the court's jurisdiction, but only to the extent that it concerns the fate
of the domain.
Paul Tattersfield:I think we need to remember the IGO's are looking to
seize other people's property not defend their own property, limiting their
liability runs the risk of frivolous UDRPs
Jay Chapman:Hard to imagine any court granting a judgment against an IGO
other than in a case of an abusive filing
Paul Keating:@Paul - That is indeed a risk. You would end up with a RDNH
finding, a post UDRP court action and a Post-UDRP judgment confirming
posession to the Respondent. The only other "remedy" would be the sh aming
factor. That is enough for me given teh limited number of UDRPs we are
discussing here.
Philip Corwin:So Option 3 would be to eliminate the possibility of
arbitration but requite the domain registrant to waive any possibility of
monetary damages? Does ICANN have authority to limit the scope of national
laws?
Paul Keating:@Phil We need to modify the UDRP and the RA. That is,
however, the case with any of the options we are considering.
George Kirikos:@Phil: it'd be saying that the scope of the UDRP waiver is
only with respect to the domain name aspect. If someone wanted to raise the
"damages" issue, the IGO could properly assert immunity, i.e. they would
argue they *didn't* waive that issue for immunity.
Jay Chapman:Paul, do you have an outlined version of "Option 3" you could
share via the email list?
George Kirikos:Likelihood = 3, Impact = 1
Paul Keating:@George, I think part of the bargain would be to eliminate
the potential for a damage claim regardless of the NGO's poisition relative
to immunity. Otherwise they will insist on the arbitration process.
George Kirikos:(negligible damage)
George Kirikos:They already successfully used licensee.
Paul Keating:I have one somehwere. I had sent this out as an option
earlier. I will try to dig up the email.
Jay Chapman:Thx
Paul Tattersfield:By agreeing to mutual jurisdiction they waive immunity
George Kirikos:Option 1 says "court is supreme" --- entirely consistent
with the premise that the UDRP was created not to supercede laws.
Mary Wong:@Paul T, that is a fundamental challenge regarding Rec 4 as it
stands (irrespective of whether Option 1 or 2, or some other option, is
preferred)
George Kirikos:Courts should be deciding which ones are IGOs.
George Kirikos:An IGO that has no connection to Canada (no treaty rights,
etc), e.g. some of these Asian or European or Caribbean or African IGOs
would have no treaty rights in Canada or the USA.
George Kirikos:If Canada/USA is not a member of the "Pacific Islands
Forum", for example, their IGO has no special rights, even if they're on the
GAC list.
George Kirikos:Same for OPEC.
Mary Wong:@George, if the Canadian govt signed on to a treaty or other
instrument that grants national rights to an IGO, then that IGO would have
rights within Canadian jurisdiction.
Berry Cobb:To Phil's comment: Recall the NGPC's small group proposal with
their version of an RPM did limit the scope to only the 192 orgs as pwer the
2013 GAC advice
Paul Tattersfield:@Mary I'm also troubled with the concept of IGO's being
entitled to immunity when they are looking to seize the assets of others for
what ever reason.
George Kirikos:@Mary: yes, if Canada was a member of OPEC, then their
immunity might exist in Canada.
Philip Corwin:@Berry--thanks for noting that -- although again I'm not
sure it's the task of this WG to decide which IGOs are "real"
George Kirikos:(OPEC might be a bad example, since the government might
recognize them)
Mary Wong:@Paul T, thing is, whether jurisdictional immunity exists in any
one case is not dependent on any motive for going to court or pleading it.
Berry Cobb:@Phil - that is perhaps correct. I'm just viewing it as a
possible considerdation as it can likely reconcile to the GAC advice and in
terms of an IGO's concern on MJ.
George Kirikos:+1 Paul. Option 1 is more consistent with the UDRP. Says
that the procedure is that the dispute should be decided by courts, not
arbitrators.
Mary Wong:@Paul K, yes
Philip Corwin:Paul, your description is correct
Mary Wong:And hence the point staff just brought up, about whether
agreeing to MJ in the first place = waiver of immunity (such that it cannot
be successfully pleaded after the fact)
George Kirikos:@Mary: yes, the intent of the UDRP was that it was a
mandatory waiver of jurisdiction. Option 1 simply clears up any loopholes,
that IGOs raise doubts about.
Mary Wong:@George, but if that is the case, then how can an IGO ever
successfully plead immunity where it is deemed to have ALREADY waived it?
Paul Tattersfield:@Mary I agree, I'm just concerned the working group is
considering granting rights that should not be granted. I think I need to
make the time to consider the principle(s) behind immunity again.
George Kirikos:When there was a dispute in the PUPA.com case, I went to
court immediately, before the UDRP case was decided.
Paul Keating:@George, Excellent point. I had not thought of a pre-UDRP
decision action by the respondent. That will be more difficult.
George Kirikos:(and the UDRP panel decided it would defer to the courts)
George Kirikos:(and terminated the UDRP)
George Kirikos:Tucows and others have done the same.
George Kirikos:Option 1 has fewer of these loopholes.
George Kirikos:After the filing, though, but before the UDRP was decided
(i.e. after the UDRP was filed, the IGO waives its immunity).
George Kirikos:Before the UDRP is filed, there's not the explicit waver.
Paul Tattersfield:@George before the UDRP is an offensive action rather
than a defensive action that is what immunity is for to prevent offensive
actions
Mary Wong:@Phil, while we haven't looked at the matter in great detail,
staff is inclined to agree with you in respect of ICANN's limited authority
on pre-UDRP strategies and actions.
George Kirikos:ICANN59 planning?
Philip Corwin:Well, George's scenario was a post-UDRP filing but pre-UDRP
decision defensive litigation one, just to be clear. IMHO we have zero
authroity to opine on what a court does if litigation is filed before a UDRP
is filed.
Paul Tattersfield:The data was very good thank you
Berry Cobb:@Petter - NP. I will work on other formats to present it to
the WG.
George Kirikos:Did the spreadsheet look at both "www.example.com
<http://www.example.com> " and "example.com" URLs? I think some sites that
don't resolve without the 'www' might resolve with the 'www' (common
webmaster mistake).
Paul Tattersfield:We should also look at discusing the raw data at ICANN59
because on first pass at least it shows very little if not zero need for any
special IGO UDRP exceptions
George Kirikos:The "raw acronym data" seems to imply that just the "apex
name" was looked at (column F), not the "www" subdomain.
Mary Wong:@Paul T, @Phil - thank you, yes - sorry I forgot to mention the
data sampling which does seem useful to include in the ICANN59 discussion.
George Kirikos:True, Paul. Very few cases of impersonation.
George Kirikos:And it's unclear why law enforcement hasn't been involved
for those cases, or registrar/registry abuse, webhosting providers, etc.
George Kirikos:(I meant Column "E" earlier, not column F)
Paul Tattersfield:There were a few redirects to offical sites but that
doesn't really lead to any harm
Mary Wong:We will work with Petter and Phil on the co-chairs' strawman for
Option 2.
Philip Corwin:Safe travel to all heading to Joburg
George Kirikos:Data appears faulty. e.g. it says "acp.info" doesn't
resolve. But, it resolves for me.
Paul Tattersfield:thanks all bye
Jay Chapman:thanks, all
Paul Keating:goo night
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