[Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C

Thu Oct 19 22:13:03 UTC 2017

Rather than unilaterally cancelling today's call, we should have kept
up our hard work, as the latest emails show that more work is needed
and desired. I'd like to note that Imran is now the 3rd person in this
PDP working group who has openly asked for a document *neutrally*
elaborating on the 3 options currently before us. I suppose you can
now consider me the 4th. Paul Tattersfield was the first:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000867.html

and Paul Keating concurred:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000868.html

Instead, those who've not followed things closely are provided with a
one-sided summary document prepared by proponents of Option C that
directly attacks Options A and B, and doesn't show the advantages or
disadvantages of all options neutrally. To me, that's inappropriate. I
previously expressed concerns that this so-called "survey" was not
transparent:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000870.html

Option A has a very strong underlying principle, namely that ICANN's
policies should not interfere with the legal rights of registrants and
3rd parties. That was the "bargain" that was made with the
introduction of the UDRP itself, namely that while it was a procedure
that was imposed upon registrants, it was always subject to de novo
review using the courts. Given that the courts would always be able to
have the "final word", to that extent it was not interfering with
registrants or 3rd parties, since they could always go to the courts
to ultimately adjudicate and decide the dispute on the merits. The
"price" that complainants in a UDRP/URS paid to use the UDRP/URS
procedure was the "mutual jurisdiction" clause, which permitted that
final word to be had via the courts and thus protect registrants'
inherent rights to due process and the protection of the national
courts.

In the scenario we've been long considering, it exposed a potential
flaw in the UDRP/URS, an unexpected situation that was never
contemplated by those who created the UDRP (indeed, it's never
actually been experienced through an actual test in the courts, but
our deep research of the topic exposed the unintended flaw). That flaw
is the potential for an IGO to deny the de novo review to the
registrant of the domain name by arguing successfully before a court
that its "immunity" trumps the "mutual jurisdiction" clause that it
agreed to when it filed the UDRP/URS.

Option A directly corrects that situation, and *preserves* the status
quo amongst all parties to the dispute, setting aside the UDRP/URS
decision and forcing them instead to use existing *legal* mechanisms
to solve the dispute. An IGO could go to the police, for example, to
complain about alleged illegal use of a domain name. Or it could waive
its claimed "immunity" and file a dispute in the courts. Or it could
use one of the workarounds we identified in this PDP (i.e. filing a
UDRP/URS using a licensee, assignee agent, etc. instead of filing it
directly). In other words, IGOs have potential workarounds, but
registrants do not.

When Mary wrote:

"In short, applying Option A when the court case is dismissed because
the IGO succeeds in claiming immunity from the court’s jurisdiction
will mean that the original UDRP or URS decision will not be enforced
– so the domain will remain with the registrant and not transferred to
the IGO or canceled. This will mean a different rule applies to IGOs
in this specific situation, compared to other situations where the
court case is between a registrant and a non-IGO – in these other
situations, where the court case is dismissed, the original UDRP and
URS decision will stand and be enforced."

That's missing the point completely, namely that Option A seeks to
preserve the court's ability to *rule on the merits* of cases, rather
than be forced to dismiss cases due to "immunity" (and thus be unable
to hear the case on the merits). Option A seeks to ensure that a full
de novo review can take place on the merits, which was the "price" for
using the UDRP/URS in the first place.

Looking deeper, why would any registrant ever AGREE to the imposition
of the UDRP/URS, if they could not have their case heard on the merits
in the courts afterwards? We know the long history of incorrect UDRP
decisions, some quite outrageously flawed, and it's only the ability
to go to court that ensures the integrity of the process, ensures that
justice can take place (although injustices still take place, e.g. if
a registrant can't afford court, or fails to act in time to file in
court, perhaps because they didn't get proper notice of the UDRP/URS).
Remove the ability to get to the correct decision via the courts, and
the injustices that take place would get worse than they already are
today, and go unchecked.

Option C, on the other hand, seeks to replicate the courts by the
creation of an arbitration option. This is meant to imitate the
courts, but it's a poor facsimile. Most registrants would prefer the
"real thing", rather than an arbitration that could share many of the
same problems and deficiencies that exist with the UDRP procedure
itself (for example, wildcard/rogue panelists, lack of multiple levels
of appeal, etc.). If registrants or IGOs jointly wanted arbitration,
they don't need ICANN to impose it upon them --- they always have the
ability to choose voluntary arbitration or mediation regardless of
whatever legal processes exist. But, Option C leaves that flawed
procedure as the *only* path available, rather than the courts.

This difference matters, as those who'd be appealing adverse UDRP or
URS decisions would be registrants of the most valuable domain names
(e.g. short acronyms, and/or single word domains). Some of these
domain names are worth hundreds of thousands or millions of dollars,
and are worth fighting for in court, despite the legal costs involved.
Few would be investing the time and expense to fight in court over
domains that are worth $100 or $5000. For these high value domains,
the full protection of legal due process (i.e. the national courts) is
vital.

Some who promote arbitration as an acceptable alternative to the
courts would likely not agree to that if their own rights were being
threatened. e.g. how many trademark holders would agree to lose the
ability to appeal to the courts if an IGO challenged one of their
trademarks via the TTAB in the USA? I think the answer would be ZERO!
They'd want the full protection of the courts, just as domain name
registrants would want for domain name rights.

And we know from the US State department letter to an IGO that no
special procedure was created for IGOs (re: UNIFEM.com):

https://www.state.gov/s/l/38648.htm

They were told to go to the courts, just like anybody else. Why are
proponents of Option C proposing something different? Domain name
registrants are treated as second-class citizens, not worthy of the
full legal protection accorded to others who have disputes over other
matters. That needs to stop.

The proponents of Option C "take as a given" that the UDRP/URS are
"the law of the land", but then still ultimately *change* the
procedure to provide the arbitration option! It's no longer "taken as
a given", if it's ultimately being changed. i.e. the fact that Option
C exists, and is changing the UDRP/URS is an acknowledgement that the
UDRP/URS have that flaw (described above), i.e. the scenario not
contemplated by the creators of the UDRP/URS.

Proponents of Option C, then, take a very poor path, in my opinion, in
that they acknowledge that the flaw exists, but seek to "correct it"
by adding an additional flawed procedure *on top* of the already
flawed UDRP/URS, a procedure that seeks to copy the courts, but not
give full due process.

Proponents of Option A, though, have a much cleaner and appropriate
solution --- they seek to *directly eliminate* the flaw in the
UDRP/URS, the root of the problem, by setting aside the UDRP/URS
decision if that scenario was ever invoked by an IGO. By setting aside
the UDRP/URS in that scenario, all parties are back to square one, and
the UDRP/URS hasn't interfered with anyone's rights. The root of the
problem goes away completely. The supremacy of the courts is thus
assured.

That supremacy of the courts could have also been promoted via a full
incorporation of the previously proposed Option #6 into Option C,
namely expressly requiring that "in rem" actions by registrants be
accorded the same rights (in the eyes of a registrar) as an "in
personam" action. In particular, an in rem action would require that
the registrar *not* implement the UDRP/URS decision, just like it
currently is forced to do under rule 4(k) of the UDRP for an in
personam case [another flaw of the UDRP exposed, i.e. the creators of
the UDRP never contemplated an in rem action, to avoid the issue of
immunity entirely]. But, this Option #6 was never fully incorporated
into Option C, since Option C was so rushed and is half-baked at this
point.

Now, Option B seeks a middle ground, namely applying Option A for
domains created before a certain date (i.e. whenever the new policy is
approved/implemented, after it gets through GNSO council, ICANN Board,
implementation team, etc), and Option C for domains created on or
after that date. In addition, it requires ongoing data collection and
a mandatory review after a certain time period or after a certain
number of arbitrations are heard, in order to ensure that there are no
unintended consequences (violation of due process, or systematic bad
decisions) from imposing Option C on some domains.

That mandatory review aspect of Option B is important, as we know from
past ICANN polices that broken procedures can take on a life of their
own, and its hard to ever correct them. The UDRP will have been in
effect more than 20+ years by the time its review is complete in the
current RPM PDP (of which I and several others in this group are
members), a review that was long resisted by many beneficiaries of the
current broken policy.

One might think that perhaps the "unintended scenario" or flaw that
we've exposed in this PDP might be corrected within the RPM working
group. While that's a possibility, I think it's unlikely, given the
highly charged and political environment of that UDRP, where many are
seeking to preserve a status quo that routinely harms the rights of
domain name registrants. Thus, it's important that we get things right
in *our* PDP, which has been deeply focused on these very issues
(whereas they will be considered tangential in the other PDP).

In conclusion, Option A is the best solution, because it takes on the
flawed aspect of the UDRP/URS directly and eliminates it, rather than
trying to cover it up with an untested procedure (arbitration, Option
C) that *itself* is flawed. Option A ensures that the courts have
supremacy, and that ICANN policies (the current UDRP/URS) don't take
away rights from anyone.

>From a "risk" analysis, Option A is also best, because IGOs have
workarounds they can use (assignee, licensee, or agent options that we
identified) to address their concerns about the immunity question,
while domain name registrants have no such workarounds.

If you can't live with Option A, then Option B is next best, since it
imposes the flawed Option C only upon newly created domain names, and
leaves it to a future PDP to see how things turn out for them.

Sincerely,

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

On Thu, Oct 19, 2017 at 12:18 PM, Mary Wong <mary.wong at icann.org> wrote:
> Dear Imran,
>
>
>
> Without highlighting the merits and disadvantages or arguing for or against
> any specific options, since it will not be appropriate for staff to do so,
> staff confirms that your conclusion about Option A correctly reflects the
> understanding of the Working Group.
>
>
>
> In short, applying Option A when the court case is dismissed because the IGO
> succeeds in claiming immunity from the court’s jurisdiction will mean that
> the original UDRP or URS decision will not be enforced – so the domain will
> remain with the registrant and not transferred to the IGO or canceled. This
> will mean a different rule applies to IGOs in this specific situation,
> compared to other situations where the court case is between a registrant
> and a non-IGO – in these other situations, where the court case is
> dismissed, the original UDRP and URS decision will stand and be enforced.
>
>
>
> On your other question, please note that all the three options are
> independent of one another, so they cannot be combined in their current
> form. Thus, Option A and B cannot be read together as they are separate
> solutions.
>
>
>
> The Working Group discussed the details and consequences of these options
> over various calls. There were actually more than three options under
> discussion, and what we now see as Options B and, especially, C went through
> significant discussion and (in the case of Option C) amendment. The Working
> Group also conducted an Impact Analysis of all the many options (you can see
> that Impact Analysis document here: https://community.icann.org/x/mwghB).
>
>
>
> To gain a full understanding of all the many options and the various
> discussions over each of them, you would have to review the call recordings
> or transcripts from August and September. However, if you need a clear
> summary of what the final three options (A, B and C) are, you can review the
> materials that we sent out with the poll, i.e. the slides used for last
> week’s webinar and the final version of the Options Document:
> https://community.icann.org/x/64ZEB.
>
>
>
> I hope this is helpful. The chairs and other Working Group members may wish
> to add their own comments.
>
>
>
> Thanks and cheers
>
> Mary
>
>
>
> From: Imran Ahmed Shah <ias_pk at yahoo.com>
> Reply-To: Imran Ahmed Shah <ias_pk at yahoo.com>
> Date: Thursday, October 19, 2017 at 10:32
> To: Mary Wong <mary.wong at icann.org>, "gnso-igo-ingo-crp at icann.org"
> <gnso-igo-ingo-crp at icann.org>
> Cc: Imran Ahmed Shah <imran at uisoc.org>
> Subject: [Ext] Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect
> consensus on Options A, B or C
>
>
>
> Dear Mary Wong, and Dear All WG Members,
>
> Thanks for the Survey and obtaining the opinion of all WG Members.
>
> While responding to the Survey, I found that the question asked in the
> survey is not very much clear, especially when I read the phrase of Option A
> alone or Option A & Option B together.
>
> However, Option C is well elaborated and reader can understand that what is
> being asked by him. May I ask to update the questions for ‘Option A’ and
> ‘Option B’ with some additional detail?
>
> Secondly, in Option A, the final statement “….the decision rendered against
> the registrant in the predecessor UDRP or URS shall be vitiated (i.e. set
> aside.)”, needs to be elaborated further.
>
> After consulting it further I reach on the following understanding:
>
> Explaining that which of the UDRP decision will be set aside/erased/not
> given force?
>
> Through a consultation, I learned that, this is the result of a success (of
> IGO) would be to set aside, which was the original UDRP decision.
>
> And this reversal would permit the cybersquatting found by the panel to
> persist.
>
> “The current rule is that if a registrant files a judicial appeal and the
> court case is subsequently dismissed for any reason, then the stay on
> enforcement for the original UDRP decision is lifted and the domain is
> transferred or extinguished. Option A would reverse that rule solely for
> IGOs.”
>
> May I ask the Option A proponents to explain it further (if the above
> explanation is not sufficient), for my understanding and for other members
> of the WG?
>
>
>
> Thanking you and Best Regards
>
>
>
> Imran Ahmed Shah
>
>
>
> ________________________________
>
> From: Mary Wong <mary.wong at icann.org>
> To: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
> Sent: Tuesday, 17 October 2017, 1:39
> Subject: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on
> Options A, B or C
>
>
>
> Dear Working Group members,
>
>
>
> At the direction of the co-chairs and with their approval, staff has
> prepared the following survey that we are asking all members to fill out by
> 1800 UTC on Monday 23 October. The purpose of the survey is to enable Phil
> and Petter to determine the level of preliminary consensus amongst all
> members for each of the three options under discussion, relating to the
> situation where a respondent has filed court proceedings against an IGO and
> the IGO has successfully claimed immunity in that court. As our open
> community session at ICANN60 will be devoted to a presentation and
> discussion of all our proposed final recommendations, it is important for
> Phil and Petter to know which option is the most preferred at this stage.
>
>
>
> Link to survey: https://www.surveymonkey.com/r/VCP8VKD[surveymonkey.com]
>
>
>
> Link to background materials:
> https://community.icann.org/x/64ZEB[community.icann.org] (you will find the
> slides used by Petter and Phil to present all the proposed final
> recommendations and options during the webinar last week, as well as the
> most current version of the Options A, B and C document, under Background
> Documents. Please be sure to review these to familiarize yourself with the
> full details of the three options).
>
>
>
> Please note that this survey is not intended to be a formal vote, nor does
> it replace the mandatory consensus call that will take place on all the
> final recommendations prior to our submission of the Final Report to the
> GNSO Council. The co-chairs currently expect the Working Group to finalize
> all recommendations following community feedback at ICANN60.
>
>
>
> Please raise any questions or concerns you may have to this mailing list
> before the survey closes on Monday 23 October.
>
>
>
>
>
> Thanks and cheers
>
> Mary
>
> _______________________________________________
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> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>
>
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