[Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C

[George Kirikos]

Let me try to put this another way.

Suppose that "By Law" (all underlying legal principles), someone is
*entitled* to a 20 pound turkey every year for Thanksgiving from the
King

A procedure is adopted that in rare circumstances provides that person
with nothing, instead of the 20 pound turkey. The procedure has
interfered with the 20 pound turkey entitlement under the law.

As a "fix", a working group created by the King proposes that in those
rare circumstances, that person should instead be given 10 pounds of
pork.

Is the person supposed to be happy that they received "10 pounds of
pork", instead of the 20 pound turkey they were entitled to? Nope,
they'd be furious. The working group's solution is supposedly "better
than nothing".

Option A gives the person the 20 pound turkey that they're entitled to
receive. It solves the problem.

Option C gives the person the 10 pounds of pork. It claims to be
"better than nothing", but isn't actually solving the underlying
problem.

Sincerely,

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











On Wed, Nov 22, 2017 at 1:00 PM, George Kirikos <icann at leap.com> wrote:
> Hi folks,
>
> On Wed, Nov 22, 2017 at 12:40 PM, Corwin, Philip <pcorwin at verisign.com> wrote:
>>
>> “By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.”
>>
>>
>>
>> Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed.
>
> That appears to be some sort of admission (finally), that the
> arbitration option is to the detriment of IGOs, compared to the status
> quo (I listed a series of questions in a separate email to get at
> FACTS, without direct response yet, see:
>
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000925.html
>
> The problem is, the arbitration option is being proposed as a solution
> to a directly identifiable problem in the UDRP, i.e. "when the
> judicial route is foreclosed". i.e. Option C directly admits there is
> a problem with the UDRP itself (it's due to that reversal of
> plaintiff/defendant that I've written about in prior emails).
>
> But, instead of actually fixing the problem, it creates a totally "ad
> hoc" solution, based on no fundamental principles whatsoever, that
> simply "cuts the baby in half" so to speak, as some attempt to appear
> to "do something" positive.
>
> That attempt to "do something" positive doesn't go back to the first
> principles that Paul Keating, David Maher, and others have been
> repeatedly trying to point, namely that the domain name registrant is
> *entitled* to the judicial route. The judicial route (de novo review)
> was the entire "bargain" that was made when the UDRP was adopted, i.e.
> that it wouldn't interfere with underlying law.
>
> Option C *perpetuates* that interference with underlying law, and
> REPLACES the judicial route, something registrants are entitled to,
> with an inferior facsimile. Option C is based on no principles
> whatsoever, except political concerns that fixing the actual
> underlying problem (i.e. Option A) would be "politcally incorrect"
> (i.e. cause the entire report to be rejected, etc.).
>
>> But if there is not consensus support for that option we can stick to present policy and leave them without recourse.
>
> Leaving them without judicial recourse (i.e. maintaining the status
> quo, with the problem intact) represents a continuation of the problem
> we've identified.
>
> But, we've identified a complete solution to the problem, namely
> Option A. It "flips back" the plaintiff/defendant roles to what they
> should have been in the first place, had the UDRP not created this
> procedural quirk in the law which interfered with the legal rights,
> where X suing Y in court is not symmetric to Y suing X in court in
> some circumstances.
>
> Since we've identified the complete solution, we should adopt it. Just
> as we should in the related situation that I raised in the RPM PDP,
> which can affect the URS, UDRP and perhaps even in the PDDRP for new
> gTLD registry operators in some jurisdictions like the UK. There, the
> exact same problem arises due to "cause of action" issues when X suing
> Y in court is slightly different in some circumstances from Y suing X
> in court for the same underlying dispute.
>
> Option A, in particular, doesn't single out IGOs at all --- when
> properly applied to ALL situations where X suing Y in court is
> slightly different that Y suing X, it doesn't really care if it's an
> IGO, or if it's a UK case like we've talked about, or some other
> scenario due to the procedural quirks. We happened to come across it
> because this is an IGO/INGO PDP, but our solution will ultimately be
> robust to ALL situations where this procedural quirk exists, and
> inform the work of the RPM PDP that many of are also involved with as
> members.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/