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

Fri Oct 20 11:30:49 UTC 2017

Dear Mary & Imran,

There are a lot of issues to cover here. George has already dealt with the
incorrect reasoning on the perceived differences on the way IGO and non IGO
claimants are dealt with so I’ll not comment other than to say clearly one
has been heard one has not.

George has also commented extensively on the technical discussion behind
the options so here is an attempt to get an overview of the problems I
believe we are tasked with solving to bring this working group to a final
conclusion.

Yours sincerely,

Paul.

*Drafting considerations*

Options A, B & C are not drafted objectively. In the All RPMs Working Group
the Trademark and Industry interests would be up in arms if anyone ever
dared to place such options before them for consideration. They complain
about the inclusion of individual words never mind impartial phrases,
concepts or reasoning in the preamble yet alone in the options being
considered.

For example:

In option ‘A’ if an IGO refuses to participate in court proceedings
‘the decision rendered against the registrant in the predecessor UDRP or
URS shall be vitiated’

In option ‘C’ if an IGO refuses to participate in arbitral proceedings
‘the enforcement of the underlying UDRP/URS decision will be permanently
stayed’

Are these outcomes different? Would some people read them differently?

*Theoretical considerations*

Firstly the IGO Small Group has indicated that it recognises the principle
of coexistence so the IGOs are not seeking an automatic right to all their
names and acronyms, so whether option A is a fair outcome or not ultimately
depends on whether an IGO is entitled to immunity in any court proceedings
following on from a UDRP.

If there was no UDRP process available and an IGO could not reach agreement
with the registrant it would have to look to a court to settle the matter.
With the IGO being the complainant it would not be possible for court to
consider the matter without the IGO submitting to the courts jurisdiction.

This is important: I can find no forum including the current UDRP which
permits an IGO to claim jurisdictional immunity after initiating a dispute.

So the question is: Should an IGO ever be entitled to immunity when a
registrant brings a court action in response to a UDRP which the IGO has
chosen to initiate?

Unfortunately the working group has not formally answered this fundamental
question and until this question is fully considered the working group runs
the risk of building bad policy based on political considerations rather
than sound principles.

The way Option C as currently drafted is clumsy, theoretical and
inconsistent the working group’s proposed reasoning on mutual jurisdiction,
whereas option A is much simpler theoretical tidying exercise. (Albeit an
unpalatable reasoning for some people.)

*Practical considerations*

The idea that a bad actor scamming credit card donations from an Ebola
Crisis or UNCHR is going to respond to a UDRP never mind take court action
costing $10,000s is beyond parody.

UDRP and URS was never intended to stop this kind of behaviour the idea
that anyone would wait two months for a UDRP ruling to stop someone
scamming credit card donations intended for an IGO’s is also surreal.

The examples from the New York Times article cited by WIPO in their
submission to our working group’s first report couldn’t be solved even if
we as a working group said every domain that the IGO’s demanded had to be
automatically given to the IGOs. Simply because none of them involved an
infringing domain. (They involved faked email headers).

When domains are used in these types of scams these bad actors often
register hundreds or even thousands of non-infringing domains and cycle
through them in hours because registrars are good at shutting them down.

The overwhelming majority of registrars are more than happy to shut down
such scam sites often in minutes of being reported and for free! Further
ICANN accreditation compliance actually requires a registrar to take action
on such behaviour, should a registrar resist it is a serious matter for the
registrar as they risk losing their business through the improper use of a
single customer’s  domain(s).

Options A, B & C will have zero impact on the examples WIPO have given,
WIPO needs to look at other non UDRP/URS solutions to solve this problem.
While they are expending time and resources on this, they are failing to
present informed, unbiased advice on behalf of the IGO and wider
communities on how to genuinely solve these sorts of issues.

*Political considerations*

Many IGO’s do incredible works and ICANN as an organization should make
every effort to ensure that these organizations are well protected in the
DNS. There are also a myriad of INGO, NGOs, small groups and even
individuals that also do great works and they too must be equally well
protected in the DNS.

It is really troubling that a handful of individuals will lobby at the
highest level for fundamental changes that could if implanted incorrectly
in option C, test the very foundations of UDRP (which has been, one of
ICANN’s leading achievements) for a purpose that will not even begin to
solve the problems they state they wish to solve.

When someone is lobbying for special powers I’m always minded that we must
be very careful not to create the situation where all registrants are equal
but some registrants are more equal than others.

Oh, and on option B that’s a halfway house to try and minimize some of the
possible damage done by a badly implemented option C.

On Thu, Oct 19, 2017 at 5:18 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]
>    <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.surveymonkey.com_r_VCP8VKD&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=XlDw6NXew-dGJm1CBaKCEg0N5s3LUqvT9lz7Hxht3VI&s=H6q19e1CNoiytuVQufO-8LqxLdGvQGGyKK8hbr6AbbA&e=>
>
>
>
>    - Link to background materials: https://community.icann.org/x/
>    64ZEB[community.icann.org]
>    <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_64ZEB&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=XlDw6NXew-dGJm1CBaKCEg0N5s3LUqvT9lz7Hxht3VI&s=0pFK-FFTZe5kgr4h54pA-uINz2h_t8qyTAEnDNVVPNc&e=>
>    (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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>
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