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

[Corwin, Philip]

Thanks for these useful comments, George, all of which can be discussed when we reach the corresponding provisions of the draft Final Report in our WG call(s). I appreciate your thorough review of the draft.

I do wish to note that I personally disagree with this statement in your final point --

"(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." --

Option C, which is not on the agenda for today's call but which will receive a final vetting prior to any binding consensus call, does not effectively deny judicial access to registrants. That would be a judicial determination over which ICANN has no control, and Option C provides an alternative means for a registrant to obtain a de novo review under relevant national law in that likely rare circumstance.

Best, Philip

Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

-----Original Message-----
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George Kirikos
Sent: Wednesday, November 29, 2017 8:13 PM
To: gnso-igo-ingo-crp at icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Agenda and documents for Working Group call this Thursday

Correction: On point #3, I wrote "The draft agenda says we were not going to talk about Recommendation #4 " ----  I meant "Recommendation #3". Identical typo in my point #5.

Sincerely,

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



On Wed, Nov 29, 2017 at 8:04 PM, George Kirikos <icann at leap.com> wrote:
> 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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