[Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July

Mon Nov 20 16:08:00 UTC 2017

P.S. FYI, the post I'm responding to was sent by Phil using his old
email address (that is no longer subscribed to this mailing list,
apparently), not his new @verisign.com email account which is
subscribed to the list. Thus, his original email didn't actually get
broadcast to the rest of the mailing list (I only received it because
my email address was listed in addition to the mailing list address
in the "To" field). However, his email was included in its entirety
below my response.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Mon, Nov 20, 2017 at 11:01 AM, George Kirikos <icann at leap.com> wrote:
> That post makes absolutely no sense, and is inconsistent with the idea
> that we've even identified an issue at all that needs remediation.
>
> If, as Phil claims, we need to take 4(k) as is, then that argues for
> *not* implementing Option C (or Option 2 by the old numbering),
> because that would be singling out the IGO for a further round of
> arbitration, to their detriment. (as is, the dispute would be over,
> and the IGO would get the domain name; why subject them to a further
> procedure which they may lose? and even if the IGO won, they'd be
> spending more time and money to do it)
>
> I made a post on the RPM PDP mailing list yesterday that raises the
> very closely related issue of having the "de novo review" struck for
> lack of cause of action in some jurisdictions, see:
>
> http://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html
>
> which identified the root cause of the problem, namely that:
>
> "If there was no URS (or UDRP) policy in place what would be the "law"
> and the procedural path to justice? Clearly, a trademark holder would
> have a "cause of action" under trademark law against a domain name
> registrant. The TM holder would file a lawsuit (as plaintiff) against
> the domain name registrant (as defendant).
>
> With the URS (or UDRP), the procedural path to justice is altered in
> the event a TM holder uses it and is successful under the ADR. To
> challenge the outcome of the ADR, the domain name registrant now has
> the role of the plaintiff in court, and the TM holder is the
> defendant. The parties have switched their prior positions as
> plaintiffs and defendants, and it turns out that might cause a
> significant problem in some jurisdictions. i.e. it might make a
> difference which party to the dispute files in court as plaintiff in
> some jurisdictions."
>
> Where Phil is coming from, he's saying "Take the UDRP as given, and
> AFTER that procedure is applied, leave the determination of legal
> rights and defenses to national law and courts of mutual
> jurisdiction."
>
> Whereas those of us who are convinced Option A (or Option 1 under the
> old numbering) is correct, we're saying "We do not take the UDRP as
> given! ICANN can't create a policy that interferes with the legal
> rights and defenses to national law in the first place. And the UDRP
> as written has already done that, caused that interference."
>
> If you actually believe what Phil is saying, then this PDP should be
> arguing for maintaining the status quo, i.e. don't change anything at
> all. That would be the only position that isn't hypocritical.
>
> But, this workgroup does not actually believe that --- because it's
> already said there is a scenario that had not been contemplated by the
> UDRP. It has identified a flaw that needs to be fixed, because of that
> "procedural path to justice" being changed as I noted above.
>
> We're not singling out IGOs --- the same issue needs to be fixed in
> the RPM PDP, where "de novo review" on the merits is blocked by the
> courts if the court action is brought by a domain name registrant in
> certain jurisdictions, due to false assumptions when the UDRP/URS were
> created that a cause of action even existed if the domain name
> registrant was the plaintiff (as opposed to being a defendant who did
> have a valid defense to a TM infringement action).
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
> On Mon, Nov 20, 2017 at 10:29 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
>> These are personal comments and not directives or rulings from the Co-Chair.
>>
>>
>> The PDP Working Group is part of a policy process. After a WG delivers its
>> Final Report and Recommendations the process continues, with the output
>> requiring further approval of the GNSO Council and then the ICANN Board to
>> be effectuated (and with the Board possibly having to consider contrary,
>> consensus GAC advice when making its own determination). If those subsequent
>> approvals are not obtained the entire effort of the WG is for naught. It is
>> not "playing politics" for a WG to consider whether its final
>> recommendations will pass muster at the next stages of process review, and
>> policymaking is always the art of the possible and often requires pragmatic
>> compromise.
>>
>>
>> My own evolution in thinking  on  Option 1/A (and I don't believe I ever
>> expressed a preference for that over Option 2/C at the time our Initial
>> report was released) was in part based upon a further understanding that 4k
>> of the UDRP https://www.icann.org/resources/pages/policy-2012-02-25-en
>> states:
>>
>>
>> k. Availability of Court Proceedings. The mandatory administrative
>> proceeding requirements set forth in Paragraph 4 shall not prevent either
>> you or the complainant from submitting the dispute to a court of competent
>> jurisdiction for independent resolution before such mandatory administrative
>> proceeding is commenced or after such proceeding is concluded. If an
>> Administrative Panel decides that your domain name registration should be
>> canceled or transferred, we will wait ten (10) business days (as observed in
>> the location of our principal office) after we are informed by the
>> applicable Provider of the Administrative Panel's decision before
>> implementing that decision. We will then implement the decision unless we
>> have received from you during that ten (10) business day period official
>> documentation (such as a copy of a complaint, file-stamped by the clerk of
>> the court) that you have commenced a lawsuit against the complainant in a
>> jurisdiction to which the complainant has submitted under Paragraph
>> 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is
>> either the location of our principal office or of your address as shown in
>> our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of
>> Procedure for details.) If we receive such documentation within the ten (10)
>> business day period, we will not implement the Administrative Panel's
>> decision, and we will take no further action, until we receive (i) evidence
>> satisfactory to us of a resolution between the parties; (ii) evidence
>> satisfactory to us that your lawsuit has been dismissed or withdrawn; or
>> (iii) a copy of an order from such court dismissing your lawsuit or ordering
>> that you do not have the right to continue to use your domain name.
>> (Emphasis added)
>>
>>
>> That language made clear to me that Option 1/A would single IGOs out for
>> disparate treatment in the UDRP in that, were any other Complainant
>> successful in having a registrant's lawsuit  dismissed for any valid reason,
>> the stay on the implementation of the Administrative Panel's decision to
>> extinguish or transfer the domain would be lifted and the decision would be
>> effectuated; whereas that Option would state that for IGOs, and IGOs alone,
>> the decision would be vitiated.
>>
>>
>> My view is that for that disparate treatment alone the Council and Board
>> would be highly likely to reject a report and recommendations containing
>> such a policy recommendation. Additional reasons why I cannot support it
>> are:
>>
>> Such a recommendation is at odds with the WG Charter's charge that we ensure
>> that IGOs have effective access to CRP
>> The effect of the recommendation would be to penalize IGOs for effectively
>> asserting an immunity defense in judicial proceedings, as the result would
>> be to set aside a prior determination that the domain was being used to
>> facilitate cybersquatting (and yes, I know that in some instances UDRP
>> decisions are in error and are set aside on judicial appeal; but in the
>> great majority of cases the original panel decision is correct) and that
>> this result would likewise be unacceptable to Council and the Board. It
>> would also be inconsistent with the WG's prior determination that ICANN
>> should not interfere with the legal rights of either party to a UDRP, and
>> should leave judicial determinations to the courts.
>> The recommendation might well incentivize losing domain registrants to file
>> judicial appeal in a belief that an IGO - faced with the choice between
>> acquiescing to the court's jurisdiction, or asserting an immunity defense
>> the successful invocation of which would be penalized by panel determination
>> vitiation -- would choose to not participate in the adjudication and thereby
>> provide the registrant with a default judgment in its favor.
>>
>>
>> Please note that all these reasons (which I have articulated previously in
>> both oral and written form) are based on law, policy, and pragmatic
>> policymaking considerations and that none constitute "fear mongering".
>>
>>
>> The positive reasons why I personally support Option 2/C are that:
>>
>> It is consistent with the WG's determination to leave the determination of
>> legal rights and defenses to national law and courts of mutual jurisdiction.
>> It does nothing to improve or detract from an IGO's ability to successfully
>> assert and immunity defense.
>> It improves the position of domain registrants by assuring that in those
>> rare instances in which a court grants an IGO's immunity claim and dismisses
>> the judicial action they still will have an ability to secure a de novo
>> determination from an expert and impartial panel based upon the same
>> national law that was the basis for the judicial action. Under current UDRP
>> policy, the judicial dismissal would leave the registrant with no further
>> recourse for "appeal".
>>
>>
>> Finally, let me be clear that my views on this matter have never been
>> motivated by a desire to acquiesce to the GAC's. I believe that if Option
>> 2/C is included in our final report and if GAC members actually give a fair
>> reading to it they will conclude that this recommendation is based upon
>> reasoned principles that deserve GAC support. However, I have never favored
>> the consistent GAC position on this matter -- that we should create separate
>> CRP processes for IGOs in which domain registrants are deprived of an
>> opportunity to secure judicial review - as we have found no basis for IGOs
>> to secure standing for such actions other than trademark law, and because it
>> would be an abuse of ICANN's limited remit for it to attempt to deprive
>> registrants of existing legal rights based upon the type of Complainant
>> initiating a CRP action.
>>
>>
>> Best to all,
>>
>> Philip
>>
>>
>>
>>
>>  Philip S. Corwin
>>
>> Founding Principal
>>
>> Virtualaw LLC
>>
>> 1155 F Street, NW
>>
>> Washington, DC 20004
>>
>> 202-559-8597/Direct
>>
>> 202-559-8750/Fax
>>
>> 202-255-6172/Cell
>>
>>
>> Twitter: @VLawDC
>>
>>
>> "Luck is the residue of design" -- Branch Rickey
>>
>>
>>
>>
>>
>> ________________________________
>> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of
>> George Kirikos <icann at leap.com>
>> Sent: Thursday, November 16, 2017 1:27 PM
>> To: gnso-igo-ingo-crp at icann.org
>> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working
>> Group meeting on Thursday 27 July
>>
>> Hi folks,
>>
>> On Thu, Nov 16, 2017 at 12:24 PM, Mike Rodenbaugh <mike at rodenbaugh.com>
>> wrote:
>>> I completely agree with Paul on this.  These IGO names issues have been a
>>> political football for nearly five years now.  The GAC is never going to get
>>> the GNSO to say what the GAC wants it to say -- we are not going to agree.
>>> The GAC has never proved any legitimate public interest concern to back
>>> their position.  Accordingly, the IGO names policy was passed by a
>>> supermajority of the GNSO (as likely will be this latest policy
>>> recommendation) and that has implications in the Bylaws for the Board.  The
>>> Board needs to make a decision.  The GNSO need not be interested in
>>> politics, that is the Board and GAC's concern; we are interested in facts
>>> and real world policy.
>>
>> Yet, the backers of Option C within this PDP have *also* been playing
>> politics. It was pretty much established that Option 1 (now Option A)
>> had the backing of this PDP when the preliminary report went out
>> earlier this year, as I pointed out in today's call, based on all the
>> analysis of law and facts. What "new information" or "new facts" or
>> "new analysis" have been presented to get some members of this PDP to
>> shift to the old Option 2 (now Option C)? Absolutely none -- just
>> scaremongering about how the GNSO Council or others might react ----
>> *that's* politics. There's nothing "principles based" about Option C
>> that has anything to do with facts or law.
>>
>> Politics were being played even *before* we got to this PDP. The prior
>> PDP should have just said "No more", but then they kicked the can down
>> the road (leading to this 3 years of work), which the IGOs themselves
>> have not participated in.
>>
>> I hope that folks regain their bearings before this PDP is over, and
>> really think hard about the fundamental principles that lead to policy
>> decisions (I've been reading Ray Dalio's new book "Principles"
>> lately).
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>> Leap of Faith Financial Services Inc.
>> www.leap.com
>> Leap of Faith Financial Services Inc. is a privately held company based in
>> Toronto, Canada.
>>
>>
>>
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