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

Thu Nov 30 16:31:32 UTC 2017

Phil,

This statement is not correct. ICANN has a duty to provide the correct
answer rather than allow completely new arbitration mechanism to be built
on an outcome which is effectively a quirk of process. If there was any
logic in this reasoning then the mutual jurisdiction clause should not be
allowed to stand.

Yours sincerely,

Paul.

On Thu, Nov 30, 2017 at 4:00 PM, Corwin, Philip via Gnso-igo-ingo-crp <
gnso-igo-ingo-crp at icann.org> wrote:

> 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
> >>
> >>
> >> _______________________________________________
> >> Gnso-igo-ingo-crp mailing list
> >> Gnso-igo-ingo-crp at icann.org
> >> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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