[Gnso-igo-ingo-crp] MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 28 September 2017

Thu Sep 28 19:06:07 UTC 2017

Dear All,

Please find the attendance and MP3 recording along with the AC recording and
chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held
on Thursday, 28 September 2017 at 16:00 UTC.

Mp3:  <http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-28sep17-en.mp3>
http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-28sep17-en.mp3

AC Recording:
<https://participate.icann.org/p3w0l0axx1u/?OWASP_CSRFTOKEN=0555d3b4d0c723a6
443ff49bfca3e762f690bbacbaefaf5bc7f0e0b28a3e10d0>
https://participate.icann.org/p3w0l0axx1u/

The recordings and transcriptions of the calls are posted on the GNSO Master
Calendar page:  <https://gnso.icann.org/en/group-activities/calendar>
https://gnso.icann.org/en/group-activities/calendar

Attendees:

George Kirikos

Mason Cole

Paul Tattersfield

Phil Corwin

Jay Chapman

David Maher

Petter Rindforth

Osvaldo Novoa

Jim Bikoff

  Apologies:   

  Paul Keating

ICANN staff:

Mary Wong

Steve Chan

Terri Agnew

** Please let me know if your name has been left off the list **

Mailing list archives:  <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/>
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/

Wiki Agenda page:   <https://community.icann.org/x/M4JEB>
https://community.icann.org/x/M4JEB

Thank you.

Kind regards,

Terri 

-------------------------------

Adobe Connect chat transcript for Thursday, 28 September 2017    

  Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection
Mechanisms Working Group call on Thursday, 28  September 2017 at 16:00 UTC
for 90 minutes 

  Terri Agnew:meeting agenda page:
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_M
4JEB
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_
M4JEB&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCI
gmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08
&s=1pclmyA9WDnewP1tL2GUAtPRgllPc4hzAf2D6dZ4rKI&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=1p
clmyA9WDnewP1tL2GUAtPRgllPc4hzAf2D6dZ4rKI&e= 

  George Kirikos:Hi folks.

  George
Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/00084
7.html

  Philip Corwin:dialing in

  Osvaldo Novoa:hello all

  Paul Tattersfield:Hi everyone

  George Kirikos:No Mary, Steve, etc. today?

  George Kirikos:Here's that other mailing list:
http://mm.icann.org/pipermail/discussion-igo-rc/2017-September/date.html

  Mary Wong:Hello everyone - apologies for my lateness; I was running
another meeting. Steve is also in another meeting so he will not be joining
till later. 

  George Kirikos:No sound from Mary?

  George Kirikos:Phone is more reliable than VOIP.

  George Kirikos:Here's a list of people attending:
https://registration.icann.org/reg_disp.php?id=abudhabi60

  Paul Tattersfield:Hi Mary, thank you for posting the Secretary General's
letter, it is really appreciated. Things are a bit mad here at the moment
and I haven't had chance yet to respond on the mail list, but I think it
raises some important issues which hopefully out final report will be able
to clarify. 

  Mary Wong:No worries, Paul - thanks for your patience, and I'm glad it was
informative.

  Petter Rindforth:...and the fact that they are attending in Abu Dhabi does
not automatically means that they will be at our meeting.

  George Kirikos:Of note, the recent Brazil position on ICANN, GAC, and
"public interest", see:
https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theregister.co.uk_2
017_09_27_brazil-5Fdot-5Famazon-5Fgtld_
<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theregister.co.uk_
2017_09_27_brazil-5Fdot-5Famazon-5Fgtld_&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgf
kbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI
4fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=Rm226blqK5ClS3wUmrPiiRWk8TXwMZVRnilW_D
QiV1o&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=Rm
226blqK5ClS3wUmrPiiRWk8TXwMZVRnilW_DQiV1o&e= 

  Mary Wong:Link to the Board scorecard that Phil just read from:
https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system
_files_files_resolutions-2Djohannesburg59-2Dgac-2Dadvice-2Dscorecard-2D23sep
17-2Den.pdf
<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste
m_files_files_resolutions-2Djohannesburg59-2Dgac-2Dadvice-2Dscorecard-2D23se
p17-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dX
AvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4fdtITyWqYbRqhO6P3THHtCftvdx
WcKVl08&s=7qsP4cg-z5W9NUrYWzs7NFA2T-vxec9SEuDKneyI7Lo&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=7q
sP4cg-z5W9NUrYWzs7NFA2T-vxec9SEuDKneyI7Lo&e= 

  George Kirikos:""It is the right and duty of governments - and not of
Amazon the company, nor any panel constituted by three nationals of a single
country in their individual capacity, nor even of the ICANN Board of
Directors - to identify the public policy issues that may justify the Board
to adopt certain decisions," Filho said."

  Mary Wong:The Bylaws actually specify the GAC's role in identifying public
policy concerns.

  George Kirikos:Perhaps, Mary. But, identifying "concerns", vs. making
analysis and policy choices, is quite different.

  Paul Tattersfield:Brian is very good at working political narratives when
the substantive facts don't support his position 

  George Kirikos:Isn't it 30, not 28?
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag
es_viewpage.action-3FpageId-3D48347895
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa
ges_viewpage.action-3FpageId-3D48347895&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfk
bPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4
fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=z6WK3YDNAIrh3ZF2LJqik9NYU9YZ8W5GV_P75eC
ftsI&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=z6
WK3YDNAIrh3ZF2LJqik9NYU9YZ8W5GV_P75eCftsI&e= 

  George Kirikos:We had submissions from many constituencies in the comment
period.

  Mary Wong:Staff has contacted all members who have not been attending our
calls and received several responses. We can speak to that if you like. We
also updated a few email addresses, and two responded asking to be removed.

  George Kirikos:Would be great to hear about that, Mary.

 Paul Tattersfield:That would be good Mary

  Paul Tattersfield:Did the two who left give any indications as to why they
wished to be removed?

  Mary Wong:Griffin Barnett and Thomas Rickert

  George Kirikos:30 at:
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag
es_viewpage.action-3FpageId-3D48347895
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa
ges_viewpage.action-3FpageId-3D48347895&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfk
bPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4
fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=z6WK3YDNAIrh3ZF2LJqik9NYU9YZ8W5GV_P75eC
ftsI&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=Yn3EhVWI4fdtITyWqYbRqhO6P3THHtCftvdxWcKVl08&s=z6
WK3YDNAIrh3ZF2LJqik9NYU9YZ8W5GV_P75eCftsI&e=  (but 2 dropped?)

  Mary Wong:We will continue to update the list as we hear back from people
one way or the other

  George Kirikos:Do we have any comparison on past PDPs, as to how many
participants there were, as a baseline?

  Mary Wong:@George, that's a difficult comparison because different PDPs
attract different participants/interests. 

  George Kirikos:Plus, we had the independent legal expert from Professor
Swaine, which is separate from any "constituency" being able to influence
the outcome.

  Paul Tattersfield:It's a very niche topic which requires a lot of time
(years) and people are busy so they have to choose which interests to
dedicate their time to

  George Kirikos:The prior PDP to his on IGOs had the participation of the
IGOs. They made a strategic choice to not be active in this PDP.

  George Kirikos:*to his = to this

  Paul Tattersfield:why?

  George Kirikos:@PaulT: presumably so they could criticize the outcome, if
they didn't get what they want, and so they could try to get the sympathy of
the GAC behind the scenes.

  George Kirikos:Especially since GAC makes statements without any
well-reasoned analysis, so perhaps IGOs thought that would help them, if
they didn't have to justify their positions.

  Mary Wong:Staff just did a quick look back - it looks like we've generally
hovered around 30

  Mary Wong:For members who have signed up, anyway (not necessarily active
on calls)

  George Kirikos:Steve just joined.

  George Kirikos:Welcome Steve.

  Steve Chan:Thanks George, just rolling off another call.

  Mary Wong:Unregistered rights

  George
Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/00084
9.html (response of earlier today)

  Mary Wong:Thanks for spotting that, George - yes, it was Option 5

  David W Maher:@George  Could you speak  a little louder   thanx

  Paul Tattersfield:I have an overarching question, Are the IGO's actually
entitled to immunity given that they are initiating the action? In any other
fourm they would have to waive immunity to bring an action. 

  Mary Wong:@Paul, I believe Prof Swaine mentioned that in his memo as well;
the question being whether agreeing to Mutual Jurisdiction amounts to a
waiver of their jurisdictional immunity. Some courts may view that as the
case.

  Jay Chapman:Valid point, George

  Paul Tattersfield:I think Prof. Swaine wasn't quite right when he
considered immunity,  When he tried to "disaggregate" - his thinking is
wrong. The comparable case is where a TM holder initiates a UDRP against an
IGO. If the TM holder went to court the IGO could claim immunity. I believe
it is incorrect to reverse this when the IGO initiates an action in court
the IGO has to waive it's immunity for the court to determine the case and
so the process is fair it has to waive its immunity from execution.

  George Kirikos:Right, it doesn't have to be the full implementation. But,
sufficient details to know what one is supporting, imho.

  Mary Wong:@Paul, I think the discussion was about whether agreeing to
Mutual Jurisdiction by filing a UDRP/URS complaint amounts to a waiver of
immunity should there be a court case.

  Mary Wong:Abu Dhabi session currently scheduled for Wednesday 1 November,
1700-1830 local time.

  Paul Tattersfield:That was a separate issue Mary, just a sec I'll get the
paragraph with the error 

  George Kirikos:Were we going to have another comment period??

  George Kirikos:(that topic was broached last week, but it's still unclear
to me)

  Mary Wong:@George, I don't believe so - with the current plan Phil is
describing.

  Paul Tattersfield:@Mary it is in 3. Discssion (Page 8)

  Paul Tattersfield:"The core question is whether an IGO is "entitled to
immunity," but the baseline assumptions may be disaggregated. An IGO's
immunity would be most clearly at issue if the IGO had not itself initiated
any related judicial proceeding-since that would risk waiving any immunity
to which it would be entitled, including to counterclaims18-and the UDPRP's
Mutual Jurisdiction provision were absent. This might be the case, for
example, where a domain-name registrant has sought a declaratory judgment in
relation to some actual or potential infringement by an IGO.19 Although that
is not the scenario of principal concern here, imagining that scenario
usefully isolates the question as to whether an IGO has a legitimate
expectation that it would be entitled to immunity absent the UDRP and its
concessions. If such immunity is minimal or uncertain, then any compromises
required by the UDRP loom less large; if the IGO would otherwise be entitled
to immunity, however, its potential sacrifice seems more substantial.

  George Kirikos:@Mary: I thought he was arguing *for* it last week, (I was
arguing against), but maybe he was just trying to illustrate the other side
of the argument, without support of either one.

  Mary Wong:@George, without answering for Phil, the co-chairs and staff had
a post-call discussion after last week's meeting, where this path forward
was discussed. The staff understanding is that it will be in lieu of a
public comment period.

Paul Tattersfield:@Mary Technically if we wanted to reflect the immunity an
IGO enjoys in the judicial system we should as a working group look at
affording the IGO immunity when a TM holder brings a UDRP dispute against an
IGO as this is what a court would do.

  Mary Wong:@Paul, thanks for the clarification

  Mary Wong:Re what Phil is describing - the Working Group discussed these
elements some time ago, and there is a paper that outlines all of them

  Paul Tattersfield:I believe it is incorrect to reverse this when the IGO
initiates an action in court the IGO has to waive it's immunity for the
court to determine the case and so the process is fair it has to waive its
immunity from execution.

  Petter Rindforth:Good summary

  Mary Wong:@Paul, we may need to think about this further but these topics
may be beyond the scope of this PDP.

  Mary Wong:It isn't really a defense - it is to object to the suit

  Mary Wong:Doesn't a defense mean a substantive defending against a
substantive claim, and not a procedural disposal of the suit?

  George Kirikos:@Mary: it's a defence against the action.

  Mary Wong:Maybe we can just say "succeeds in asserting jurisdicitonal
immunity" :)

  George Kirikos:Right, that's fine.

  George
Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/00084
9.html  and
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html

  Mary Wong:It may be more appropriate to say "conduct a review to assess
the effects of implementing Option C".

  George Kirikos:5 years, or 10 disputes.

  George Kirikos:Given that there have never been any in the past, probably
5 years is sufficient.

  Mary Wong:On the need to clarify what "creaed" or "registered" means, it
may be easier to put a footnote there to explain it the way Phil has just
described.

  George Kirikos:But, the "10 cases" handles things if there's a flurry of
new cases.

  George Kirikos:I explicitly said "the earlier of those".

  Paul Tattersfield:Can we have some explanatory text to introduce the
reasoning behind each of the options? I.e brief reasoning cost benefits etc.

  Paul Tattersfield:George +1

  Mary Wong:We can add a footnote to explain "Create Date"

  Paul Tattersfield:no

  Paul Tattersfield:it has a new creation date

  Paul Tattersfield:snapnames is not a good example they have names which go
through both routes

  Paul Tattersfield:1st Jan after the board approval?

  George Kirikos:I think that also applies to Option A or C too, though,
i.e. the date would be when it's published and approved.

  George Kirikos:(i.e. in the implementation, etc.)

  George Kirikos:i.e. status quo until the new policy is in effect.

  Paul Tattersfield:What happens if the number of cases is zero after 5
years?

  George Kirikos:I actually recommended in the Option 4 that *all* these
arbitrations need to be documented, as part of the policy

  George Kirikos:@Paul: It'd be like that PDDRP review. :-)

  George Kirikos:"(c) All UDRP/URS providers must flag *all* of their
disputes involvingIGOs as complainants, sending the information to ICANN
which willmaintain a public record of them (like they used to do for UDRPs,
butstopped doing). Not only does ICANN have to track any arbitrationsinvoked
in point (b) above, but ICANN must also track any/all courtdisputes invoked
and subject to point (a) (i.e. the grandfathereddomain names), and obtain
(at ICANN's expense) all the relevant publiccourt
documents/filings/evidence."

  George
Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.htm
l

  Mary Wong:@George, staff has concerns about reqiring ICANN to track all
court cases filed - we are just not sure we can do that with any accuracy.

  George Kirikos:@Mary: ICANN already does it for its own litigation.

  George Kirikos:@Mary: registrars would have to be notified of litigation,
naturally.

  Mary Wong:@George, if we are party to a case, yes of course, but we cannot
track all courts to find out whether any registrant has filed against an IGO
anywhere.

  George Kirikos:So, it's just communication between the registrars and
ICANN.

  George Kirikos:i.e. the registrants is REQUIRED to notify the registrar,
in order to not have the UDRP/URS decision be followed.

  George Kirikos:*registrant, rather

  Mary Wong:If it is to be an additional obligation on registrars as a
result of Consensus Policy, it will need to be spelled out very expressly as
that is not currently an obligation on them under a Consensus Policy or the
RAA.

  Terri Agnew:next call: IGO-INGO Access to Curative Rights Protection
Mechanisms Working Group call will take place on Thursday, 05 October 2017
at 16:00 UTC for 90 minutes 

  Petter Rindforth:I'll send you what we have discussed in the passed
regarding General Principles for Binding Arbitration - to add to Option C

  Jay Chapman:Thanks, all.

  George Kirikos:Bye folks.

  Mary Wong:I believe the answer is no - i.e. courts do not order parties to
arbirate as it has to be voluntary.

  Paul Tattersfield:Thanks all, bye

  Mary Wong:Thanks Phil and all.

  George Kirikos:@Mary: google "court ordered arbitration". There are some
hits.

  Osvaldo Novoa:bye

  Mary Wong:Thanks, George - will do

  George Kirikos:Same for "court appointed arbitrators", etc.

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