[Gnso-igo-ingo-crp] Agenda and documents for Working Group call this Thursday

Thu Nov 30 01:04:36 UTC 2017

Hi folks,

Some initial comments on the "Excerpts" document:

1. For Recommendation #2 on page 1, the very first sentence makes it
seem that complying with the Article 6ter requirements is *sufficient*
for standing (i.e. the first prong of the UDRP), when it says "An IGO
may elect to fulfil the requirement that.....". Although it's later
weakened by the "For the avoidance of doubt" section (b) below it in
the same paragraph, it seems very confusing as written at the
beginning of the paragraph. It should perhaps rewritten to emphasize
in clear terms that Article 6ter recorded strings may be considered
*evidence* for standing, but not proof (and then it would be more
consistent with 2(b).

2. I don't know what the level of consensus would be for
Recommendation #4 as written on page 2, but I'd oppose ICANN
subsidizing the costs of complaints filed by IGO. If there are to be
subsidies, equal funding should also be provided to the domain
registrant in that complaint (e.g. to pay for a 3-person panel).

I don't see airlines or hotels or restaurants or other service
providers giving free services to IGOs. If IGOs use the court system
(as they do occasionally), they pay just like everybody else. Many
IGOs (UN, WIPO, etc.) have budgets of hundreds of millions or even
billions of dollars, have lawyers on staff, and are in much stronger
financial positions than typical domain name registrants. Nothing is
ever really "free" --- somebody ends up paying for it. If it's ICANN,
that really means that domain name registrants are paying the costs
(since they ultimately fund all of ICANN through their domain name
registrations, directly or indirectly). There's no sense of financial
discipline when folks are given handouts because they are "special"
--- there's no shortage of people or organizations who believe
themselves to be special, so if IGOs are going to get a handout, who's
next? ICANN should be cutting back on spending and fees (a form of
taxation on registrants) rather than engaging in mission creep and
finding new things to spend money on.

If we simply recommend that ICANN should "investigate the
feasibility", isn't that just pushing the work to yet another working
group, instead of us doing the job ourselves in this working group? We
should make the hard choice ourselves, either say "Yes they should be
subsidized" or "No they shouldn't", instead of punting the issue to a
different working group (I'd go with the latter, saying "No").

3. The draft agenda says we were not going to talk about
Recommendation #4 when reviewing this document, but then page 2 of
this document contains new text that indirectly references it, i.e.
"and the possible use of an arbitration procedure in the case...."
That should be struck until we know what is decided for Recommendation
#4.

4.  On page 3, the new text in point (1) "thereby avoiding any direct
concession on the issue of mutual jurisdiction". Perhaps "exposure" is
a better word than "concession"

5. On page 3, "(3) the WG’s recommendation that where an IGO
successfully asserts jurisdictional immunity against a losing
respondent in a national court the case may be brought to arbitration
instead at the registrant’s option;" seems to be new text again (it's
black in my PDF -- shouldn't it be blue?) slipped in that references
Option #4 which hasn't been decided, and which should be struck.

6. Just to go back to my prior point about "costs", take a look at
page 4, point #3 --- how is that reasoning any different for IGOs?

"Although some INGOs may be concerned about the cost of using the UDRP
and the URS, because enforcement through these rights protection
mechanisms involves some expenditure of funds, this is not a problem
for all INGOs nor is it unique to INGOs as among all rights holders.
Furthermore, the issue of ICANN subsidizing INGOs to utilize DRPs is
outside the scope of the WG’s Charter, and it has no authority to
obligate any party (including ICANN) to subsidize the rights
protection of another."

The document is hypocritical to say for that INGOs, but not make the
identical conclusion for IGOs too. As currently written, it seems more
like kowtowing to the GAC for the IGO subsidies, rather than any
principled rationale for it.

7. Same comments as point #1 above apply to the copied text at the
bottom of page 5.

8. Bottom of page 6: Text needs to change, because it still seems to
be written from the perspective that Article 6ter *is* sufficient,
e.g. "The WG believes that reliance on Article 6ter for the limited
purpose of demonstrating standing will not necessarily result in an
increased number of complaints...." despite our shifted recommendation
on this topic.

9. Bottom of page 7: See earlier comments on costs above in points #2
and #6. The only "rationale", if one can call it that, is that
"Nevertheless, in view of GAC advice on the topic, it is within the
WG’s Charter scope to recommend that ICANN investigate the feasibility
of providing IGOs and INGOs with the ability to file UDRP and URS
complaints at no or minimal cost." That's not a rationale based on any
reasoning, other than "the GAC likes it, so let's put it in" ----
there's no principle behind it, and it's entirely inconsistent with
the reasoning for INGOs. above.

10. I just noticed that in both Recommendations #4 (i.e. on page 7,
and also back on page 2), it's suggesting that both IGOs *and* INGOs
be subsidized (I had initially thought it was for IGOs only). That's
even more hypocrisy, given the point #6 above which claimed "the issue
of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the
WG’s Charter", furthermore the GAC advice appears limited to just IGO
subsidies --- and those who favour subsidies in this PDP would be
suggesting that INGOs be subsidized too. That means subsidies for Red
Cross, IOC, and the many thousands of other INGOs that exist (and then
there'd be the problem of identifying which INGOs are "real" INGOs,
i.e. the ECOSOC list, or some other standard??).

11. And for those still on the fence about Option A and Option C (for
discussion on a future call), note on page 3 the text:

"(4) the importance of recognizing and preserving a registrant’s
longstanding legal right to bring a case to a court of competent
jurisdiction combined with *****ICANN’s questionable authority to deny
such judicial access;*****" (emphasis added) We know that the scenario
we've discussed effectively results in that denial of judicial access,
and thus that speaks to why Option A is the only option consistent
with the full preservation of legal rights that this PDP claims to be
important.

Sincerely,

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

On Tue, Nov 28, 2017 at 5:12 PM, Mary Wong <mary.wong at icann.org> wrote:
> Dear Working Group members,
>
>
>
> In view of the ongoing discussion relating to the final text and scope of
> Recommendation 3/Options A-C for our Final Report, the co-chairs would like
> to focus the Working Group call this week on those other recommendations for
> which there seem to be general agreement. As such, the proposed agenda for
> the call this week is:
>
>
>
> Roll call/updates to Statements of Interest
> Review/discussion of proposed final text for Recommendations 1, 2 & 4
> Discussion of next steps for finalizing Recommendation 3 and timeline to
> completion of the Final Report
>
>
>
> For Agenda Item #2, staff has excerpted the proposed final text and related
> information for Recommendations 1, 2 & 4 in a separate document, attached –
> we have highlighted in blue those parts of the text that were either changed
> from or added to the text of our Initial Report.
>
>
>
> Please also note that Phil and Petter expect the call this week to last up
> to 60, as opposed to the scheduled 90, minutes.
>
>
>
> For your review and reference, we also attach the draft Final Report. This
> version is redlined from the Initial Report (showing all the changes and
> additions since the Initial Report was published, based on subsequent
> Working Group discussion and review of the public comments received), and
> has been reviewed by Petter and Phil. You’ll see that we have not inserted
> text for Recommendation 3 (pending further discussion by the Working Group)
> and there are also several comments and placeholders that will need to be
> addressed following additional Working Group input.
>
>
>
> Based on our consultations with Phil and Petter, staff expects that the
> Working Group will discuss the draft Final Report in the next couple of
> weeks.
>
>
>
> Thanks and cheers
>
> Mary
>
>
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