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

Fri Oct 20 03:23:31 UTC 2017

Hello Phil and everyone – the poll is currently set up such that you can only submit one response; however, you may go back and edit your response up to the time when the survey closes. Please let me know if you’d like those settings changed.

Note also that we ask all respondents to provide their name as part of the survey, and it is a survey administered by staff so the co-chairs do not have access to the results or administrator rights. This methodology, and the use of Survey Monkey polls, is also how other GNSO PDP Working Groups have been conducting their polls which, in some cases, is done on a fairly regular basis.

Thanks and cheers
Mary

From: <gnso-igo-ingo-crp-bounces at icann.org> on behalf of Phil Corwin <psc at vlaw-dc.com>
Date: Thursday, October 19, 2017 at 21:50
To: George Kirikos <icann at leap.com>, "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C

PS-- I believe that any WG Member who wishes to change his/her initial survey response based on the email discussion of the past few days, or for any other reason, can do so up to the time it closes on Monday. Staff can confirm that.

But if I am mistaken, then I would suggest that any member so disposed contact Mary so that she and her colleagues can  vitiate the initial response and allow for a new response to be entered.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VLawDC

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

Sent from my iPad

On Oct 19, 2017, at 8:51 PM, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> wrote:

George:

The survey that WG members are being asked to respond to is neutral and descriptive and never once mentions the co-chairs or their views. I mistakenly referred to it as the Options document in my prior email when I was thinking of the actual survey that members were asked to respond to.

In light of that honest error, I have just again reviewed the " REMAINING OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the majority of its language is likewise neutral and descriptive, with the exception of the language reproduced below. This language states the informed view of the co-chairs. I believe we would have been remiss not to share our concerns with WG members.

Nonetheless, the co-chairs have permitted proponents of Option A and B and detractors of Option C – most especially you -- to vigorously and repeatedly state their own views, and have never attempted to suppress any such expression.  We have included all remaining options in the survey for members to choose among. Any WG member who has been paying even a modicum of attention to the discussions of the past few weeks should be completely familiar with the pro and con arguments for all three options and capable of making an informed decision.

Hence I reject any suggestion that we have operated this WG in a manner that has not accorded every member his or her full rights and allowed all points of view to be expressed. The co-chairs are responsible for administering this WG in an efficient and fair manner and I believe we have fulfilled that responsibility. But the co-chairs have not taken a vow of silence that precludes us from sharing our personal views with the members of the WG, especially when they concur that a particular outcome could jeopardize our entire work product.

Finally, there is no secret survey. We will share the results of it with WG members as soon as it closes, just as we shall share them in Abu Dhabi.

Now here is the language in the Options document expressing the joint views of the co-chairs. Again, if a majority of the members of this WG believe that its inclusion, in the context of all the other statements that have been made regarding the three options in the course of WG discussions and email traffic, violated our duties as co-chairs then I for one will be happy to step aside and let others complete this task.

Philip

The co-chairs note that they have retained Option A (known previously as Option 1) for discussion

because it is an option that several Working Group members have supported. However, the co-chairs

wish to reiterate that in their view Option A is an inappropriate departure from our prior decision that

ICANN should avoid taking any position that seeks to limit the legal rights or prejudge the outcome of

any judicial proceeding, and is subject to strong criticism as it would vitiate a prior UDRP finding of

cybersquatting by a domain registrant upon an IGO’s successful assertion of an immunity defense (The

Co-Chairs recognize that although there may be examples where UDRP panels have reached incorrect

decisions, that the best means to address such error is through judicial appeal, or appeal via arbitration

as proposed in Option C). The Co-chairs further observe that Option A would leave IGOs in a worse

position than they would be under the status quo (successful assertion of judicial immunity would

remove the stay on enforcement of the prior UDRP decision), and as this would leave the IGO with no

further available remedy, under these mechanisms, against the alleged cybersquatting, it is highly

unlikely to be approved by the GNSO Council or the ICANN Board, especially as this PDP was chartered

to evaluate whether and how access to the UDRP and URS could be improved for IGOs and INGOs.

The Co-Chairs further believe that Option B is unlikely to secure Council or Board approval because it

incorporates Option A for grandfathered domains, and clearly establishes the new arbitration option

solely for domains registered after its implementation date.

Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/Cell

Twitter: @VlawDC

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

-----Original Message-----
From: gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George Kirikos
Sent: Thursday, October 19, 2017 8:10 PM
To: gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>
Subject: Re: [Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C

Hi folks,

On Thu, Oct 19, 2017 at 7:29 PM, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> wrote:

> ·         The Options document was developed by members of the working group

> over multiple WG calls and there was no strong dissent to its content,

> much less a charge that it was a “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”.

That's not correct. See the post and PDF from September 26, 2017:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000847.html

The PDF repeatedly uses the phrase "the Co-Chairs" in many of the paragraphs of the PDF, attacking Options A and B.

I dissented to the content at:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html

The document was later updated at:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000852.html

still stating the "co-chairs" positions on various topics.  I dissented to that document too:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000853.html

as did Paul Tattersfield:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000855.html

The document was amended one more time:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000857.html

once again, always referencing only the "co-chairs" views, who are proponents of Option C.

How can one honestly portray that as a document that was neutral?

Then the "background documents" linked to with the survey:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html

contains that same document, dated October 12, 2017:

https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO+Access+to+Curative+Rights+Protection+Mechanisms[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_gnsoicrpmpdp_WEBINAR-2B2017-2D10-2D12-2BIGO-2DINGO-2BAccess-2Bto-2BCurative-2BRights-2BProtection-2BMechanisms&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=Mnna5daMOXTpGp9ZeNoduJpnTCWjEIjBfILJrcr6YZ0&s=6zxJPpDckOPEyVQLWRHEHUWxpbvt3sBkaDPhwLKZ1Lc&e=>

https://community.icann.org/display/gnsoicrpmpdp/WEBINAR+2017-10-12+IGO-INGO+Access+to+Curative+Rights+Protection+Mechanisms?preview=/71599851/71602970/Options%20Proposal%20for%20WG%20Discussion%20-%20updated%2012%20Oct%202017.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_gnsoicrpmpdp_WEBINAR-2B2017-2D10-2D12-2BIGO-2DINGO-2BAccess-2Bto-2BCurative-2BRights-2BProtection-2BMechanisms-3Fpreview-3D_71599851_71602970_Options-2520Proposal-2520for-2520WG-2520Discussion-2520-2D-2520updated-252012-2520Oct-25202017.pdf&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=Mnna5daMOXTpGp9ZeNoduJpnTCWjEIjBfILJrcr6YZ0&s=E6sMuWoVmw08dohUJJk6LR1Ek6bJbX0fXP6YvZvYFlo&e=>

once again putting forth the "co-chairs" views front and center.

> ·         The Options document is a summary of the contents and effect of

> the Options, not a brief for or against any of them. I completely

> reject your allegation that it attacks Options A and B; rather, it

> simply and accurately states what they are.

That's not a credible statement. Did you actually read the document that you wrote? It's a direct attack against options A and B in the "preliminary notes" section of the document, and then later presents all three options. Are you now disavowing what you wrote?

> ·         Notwithstanding the now allegedly biased nature of the Options

> document, you had no problem immediately completing the survey and

> sharing your vigorous advocacy for Options A and B on the same day the survey began.

> (Likewise, in response I shared my personal view, based in large part

> upon three years of service on GNSO Council, as well as participation

> in the Board/GAC/GNSO discussions on IGO issues, that those Options

> had little or no chance of being approved by Council and were

> inconsistent with the bedrock principles that have guided our work.)

Yes, I believe all responses should be public and transparent, especially given this is an ongoing debate, and minds should still be open to be changed. Unlike your "personal views" that are reflected in the Options document itself, those of others who actually prefer other options are not in the options document.

Furthermore, the "secret survey" that is being kept confidential is still being shared with the co-chairs, presumably (since it's being used to inform their future statements at the next ICANN meeting). The Co-chairs are supposed to have only an *administrative* role, e.g.

arranging meeting times, and other grunt work of that nature. By getting preferential access to the survey results, available to no other PDP members, the co-chairs are then permitted to do their own advocacy to those members without a level playing field. The co-chairs should have no "information advantage" compared with other members due to their purely administrative role.

> ·         I note that Imran’s email states  “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?”

> While I don’t believe that Option A requires the same amount of detail

> as Option C, Imran now has the benefit of your further explanation

> below, in addition to your advocacy statement of Monday, and can make

> a decision accordingly.

That assumes Imran (and/or others) hadn't already filled out the survey by the time I posted, or that no other member of the PDP who already submitted the survey had an opportunity to read all the arguments, instead of the one-sided positions put forth by the co-chairs.

> As for WG members who have been unable to participate in calls due to

> schedule conflicts, we cannot postpone our final work indefinitely

> until their calendars clear. And every member has full access to the

> email list,

> mp3 recordings, and meeting transcripts to keep up with the discussion

> and inform themselves.

Perhaps a fresh Doodle poll should be conducted, to attempt to accommodate those (like Paul Keating) who've had persistent conflicts with the current Thursday time slot. That time slot was created ages ago, and might not accurately reflect availability of those who still need to understand all the arguments and ask questions in real-time.

Sincerely,

George Kirikos

416-588-0269

http://www.leap.com/[leap.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=Mnna5daMOXTpGp9ZeNoduJpnTCWjEIjBfILJrcr6YZ0&s=uSifCBJhKuVHDDSXkx_e86eY3IqpSlx9neUhlwG6EIA&e=>

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