[Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group)
Corwin, Philip
pcorwin at verisign.com
Fri Apr 20 17:18:34 UTC 2018
George:
I had no intent to distract anyone and doubt that others on this email list
were distracted or failed to understand the import of my reply.
My reply was in direct response to Paul's statement that " Swaine is
irrelevant to what the working group is considering". I completely disagree
for the reasons stated in that email.
Paul's inquiry - " Show me examples of where an IGO is entitled to immunity
after initiating proceedings" -- is imprecise as to what proceedings he is
referring to. If it is judicial proceedings them of course an IGO's
initiation of process indicates an implicit waiver of judicial immunity.
But our WG was tasked with addressing IGO access to non-judicial
proceedings, specifically the UDRP and URS. The fact is that GAC and IGOs have repeatedly
taken the position that IGOs should not be required to waive judicial
immunity as a pre-condition of accessing curative rights processes to
address cybersquatting that can harm the public; and the ICANN Board has
indicated a strong interest in satisfying their concerns, and is in fact
required to consider consensus GAC advice. Policy recommendations that are
supported by GNSO Council must subsequently be approved by the Board after consideration of relevant GAC advice.
It is a fact that you and Paul have dismissed those GAC and IGO positions as irrelevant
"political" considerations, just as you have viewed IGO immunity concerns as
irrelevant and not worthy of consideration is shaping a policy response within the bounds of the WG Charter.
The PDP process cannot work when WG members are unwilling to acknowledge any
validity in alternative viewpoints and are unwilling to contemplate any
compromise when rights conflict.
And that is precisely why this WG has reached a dead end, and why I shall
have no more to say on this subject since it is only a repletion of
endlessly circular policy discussions that reached no pragmatic conclusion.
So you can now have the last word, which I know is a high priority based on
observation of your behavior.
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: George Kirikos [mailto:icann at leap.com]
Sent: Friday, April 20, 2018 11:34 AM
To: Corwin, Philip <pcorwin at verisign.com>
Cc: gpmgroup at gmail.com; Donna.Austin at team.neustar; haforrestesq at gmail.com;
gnso-igo-ingo-crp at icann.org; rafik.dammak at gmail.com
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary
Report (Re: IGO-INGO Curative Rights Policy Development Process Working
Group)
Hi Phil,
In case you thought it went unnoticed, you didn't actually provide the
example that Paul Tattersfield's sought. Paul sought facts, but you provided
no facts.
But, thank you for proving you received and read his email, but had no
answer to it ---- attempting to distract folks with a non-answer to a simple
and straight-forward question is yet another example of behaviour that is
fully consistent with the Section 3.7 appeal I filed, that questioned your
leadership of this PDP.
Sincerely,
George Kirikos
416-588-0269
http://www.leap.com/
On Fri, Apr 20, 2018 at 10:57 AM, Corwin, Philip <pcorwin at verisign.com>
wrote:
> Paul:
>
>
>
> Responding in an individual capacity -- Professor Swaine's memo is an
> excellent explanation of the accepted scope of IGO judicial immunity
> and the varied analytical approaches that national courts take in
> determining the validity of IGO immunity defenses. I remain proud that
> we solicited this expert input on the central legal issue before the
> WG, and appreciative that ICANN funded the research.
>
>
>
> I am sure it will be of substantial assistance to whatever decisional
> body determines how best to resolve the inherent conflict between
> statutory rights of domain registrants and the desire of IGOs to have
> a means of addressing cybersquatting that does not require full
> surrender of valid claims to judicial immunity as a condition of bringing
an action.
>
>
>
> 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
>
>
>
> From: Paul Tattersfield [mailto:gpmgroup at gmail.com]
> Sent: Thursday, April 19, 2018 7:32 PM
> To: Corwin, Philip <pcorwin at verisign.com>
> Cc: icann at leap.com; Donna.Austin at team.neustar; haforrestesq at gmail.com;
> gnso-igo-ingo-crp at icann.org; rafik.dammak at gmail.com
>
>
> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison
> Summary Report (Re: IGO-INGO Curative Rights Policy Development
> Process Working
> Group)
>
>
>
> Dear Philip,
>
> OK lets settle this once and for all:
>
> Show me examples of where an IGO is entitled to immunity after
> initiating proceedings. In either the initial proceedings or any follow-on
proceedings?
>
>
>
> Any jurisdiction will do, any matter will do......
>
> If you can not then Swaine is irrelevant to what the working group is
> considering.
>
>
>
> Yours sincerely,
>
> Paul.
>
>
>
>
>
> On Thu, Apr 19, 2018 at 1:18 PM, Corwin, Philip <pcorwin at verisign.com>
> wrote:
>
> Paul:
>
>
>
> For the record, and in regard to this -
>
> The co-chairs will not refute this reasoning but are not prepared to
> discuss it - this I find very troubling, not just on this single issue
> level but the fact that working group officers can block its
> discussion for months and months on end.
>
>
>
> The discussion within the WG was not blocked by the co-chairs. It was
> blocked because George filed a section 3.7 Appeal at the point in time
> when the co-chairs wished to initiate the consensus call process. The
> co-chairs later offered to rescind holding an anonymous poll of the
> full WG but George rejected that approach and continued his appeal. So
> far as I am aware you supported George in these actions.
>
>
>
> Other than speaking with Susan in their individual capacity as WG
> members the co-chairs had no control over the content of her report.
>
>
>
> Speaking only for myself, I do not agree with your characterization of
> the Swaine memo and believe it was highly relevant to the central
> issue before the WG.
>
>
>
> 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
>
>
>
> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org]
> On Behalf Of Paul Tattersfield
> Sent: Thursday, April 19, 2018 5:01 AM
> To: George Kirikos <icann at leap.com>
> Cc: Donna.Austin at team.neustar; Heather Forrest
> <haforrestesq at gmail.com>; gnso-igo-ingo-crp at icann.org;
> rafik.dammak at gmail.com
> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison
> Summary Report (Re: IGO-INGO Curative Rights Policy Development
> Process Working
> Group)
>
>
>
> Dear ICANN,
>
>
>
> I agree with George, unfortunately I will not be able to attend the
> call later today as I have another meeting half way across the country
> which clashes with your call. I will listen to the call afterwards and
> submit any comments to the email list, sorry for any inconvenience.
> Please accept my apologies
>
> Briefly, I would also like to point out:
>
> The IGO's have accepted the principle of coexistence and as they are
> initiating the proceedings they have no immunity rights whatsoever in
> either the initial action or any follow on proceedings. This is an
> incredibly simple legal principle and I can not find ANY jurisdiction
> in the world on ANY matter not just domain names where an IGO would be
entitled to do so.
>
> The matter is only confused because the Swaine reasoning looked at the
> case where others are initiating an action against the IGOs i.e. a
> trademark owner looking to seize an IGO's asset. Clearly the expert
> report is not relevant to the case the working group is considering
> where the IGO's are initiating proceedings.
>
> The co-chairs will not refute this reasoning but are not prepared to
> discuss it - this I find very troubling, not just on this single issue
> level but the fact that working group officers can block its
> discussion for months and months on end. I also note with some dismay
> that only 2 people in the private office sessions said they were not
> prepared to accept any other option than option 3 - the 2 co-chairs
preferred option.
>
> We have an opportunity in this working group to set an example to the
> RPM working group using any IGO cases to show how UDRP can be easily
> improved for all parties in a way that does not tilt the balance in
> either side's favour but just improves process and reduces costs for
> all parties and meets the GAC's advice.
>
>
>
> It really is incredibly easy - Free private mediation and a separate
> (voluntary for registrants) arbitration track. If you want more
> registrants to CHOOSE arbitration simply make it cheaper, faster and
> less risky (name
> only) than the judicial route. This could be sorted in a handful of
> meetings and no interest group has lost anything!
>
>
>
> Yours sincerely,
>
> Paul.
>
>
>
>
>
>
>
>
> On Thu, Apr 19, 2018 at 1:38 AM, George Kirikos <icann at leap.com> wrote:
>
> Hi folks,
>
> With regards to the Summary Report which is to be discussed tomorrow,
> there are several parts of it that I disagree with, which I'll discuss
> orally tomorrow during our call. However, some parts deserve a written
> response, given that they contain supporting links (and the WebEx
> interface really sucks, compared to Adobe Connect) so it's best to
> post them in advance of the call.
>
> 1. On page 2, it's asserted that "the number of active participants is
> extremely low" (it's also repeated on page 3, i.e. "small number of
> participants' views"). However, that's not consistent with the facts.
> For example, the IRTP-D PDP, the most recently completed GNSO PDP
> according to:
>
> https://gnso.icann.org/en/group-activities/inactive
>
> has its attendance logs at:
>
> https://community.icann.org/display/ITPIPDWG/Attendance+Log
>
> If one adds up the "total attended" column, and divide it by the total
> number of meetings, one obtains the average attendance per meeting:
>
> Sum of total attended column = 553
> Total meetings = 56
> Average = 9.88 per meeting
>
> It is of note that both the GNSO Council and the ICANN Board adopted
> their recommendations:
>
> https://gnso.icann.org/en/group-activities/active/irtp-d
>
> Now, let's compare this to the IGO PDP and its attendance records:
>
> https://community.icann.org/display/gnsoicrpmpdp/Attendance+Records
>
> Sum of total attended column = 711
> Total meetings = 71
> Average = 10.01 per meeting
>
> So, there has actually been HIGHER average attendance (10.01 vs 9.88
> per meeting) in this IGO PDP, compared to the IRTP-D whose work was
> successfully completed.
>
> 2. On page 3, it's claimed that adoption of Option 4 "will require a
> Charter amendment" for that other PDP." I'm not convinced that that's
> a requirement. The RPM PDP charter is at:
>
> https://community.icann.org/display/RARPMRIAGPWG/WG+Charter?preview=3D
> /5872= 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf
>
> and states on page 3 of the charter that:
>
> "(b) Coordination with Other Parallel Efforts In the course of its
> work, the Working Group should monitor the progress of and, where
> appropriate, coordinate with, other ICANN groups that are working on
> topics that may overlap with or ***otherwise provide useful input to
> this PDP.*** ....
> In addition, the RPM PDP Working Group should also take into
> consideration the work/outcome of the TMCH Independent Review, the CCT
> Review, and ***any other relevant GNSO policy development***"
>
> (emphasis added)
>
> So, I think this situation was already covered by the RPM PDP's
> current charter, and doesn't need an amendment.
>
> As I mentioned earlier, there are other parts of the Summary Report I
> have concerns about, but I'll save them for tomorrow's call, as they
> don't require any links/quotes.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
> On Fri, Apr 13, 2018 at 11:36 AM, Mary Wong <mary.wong at icann.org> wrote:
>> Dear all,
>>
>>
>>
>> On behalf of Susan Kawaguchi, GNSO Council liaison to this PDP
>> Working Group, please find attached the summary report that Susan
>> mentions in her
>> 10
>> April email (below). You should already have received the calendar
>> invitation and call details for the next Working Group call,
>> currently scheduled for next Thursday 19 April at our usual time of
>> 1600 UTC. Susan will be on the call to discuss the report and
>> proposed next steps with everyone.
>>
>>
>>
>> Thanks and cheers
>>
>> Mary & Steve
>>
>>
>>
>> From: Susan Kawaguchi <susankpolicy at gmail.com>
>> Date: Tuesday, April 10, 2018 at 12:26
>> To: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
>> Cc: Heather Forrest <haforrestesq at gmail.com>, Mary Wong
>> <mary.wong at icann.org>, Steve Chan <steve.chan at icann.org>
>> Subject: [Ext] IGO-INGO Curative Rights Policy Development Process
>> Working Group
>>
>>
>>
>> Dear IGO-INGO Curative Rights Policy Development Process Working
>> Group members,
>>
>>
>>
>> I write to update you, in my role as GNSO Council Liaison to this
>> Working Group, on the status of the WG member consultation process
>> that was set out in my email of 9 March 2018 and then actioned during
>> ICANN61 and following.
>>
>>
>>
>> As envisaged in my email of 9 March, staff and I are preparing a
>> report for the Working Group on the input received at and since
>> ICANN61, with recommendations on next steps from me and Heather
>> Forrest, the GNSO Chair.
>> We anticipate posting the report to the WG list at the end of this
>> week, for discussion at a WG meeting to be held at the group's usual
>> time next Thursday, 19 April. At that meeting, I will be happy to
>> present a summary of the report and its recommendations, and answer
>> questions from WG members.
>>
>>
>>
>> An email from staff with call details will be circulated shortly.
>> Bear in mind that we do not have Adobe Connect, so alternate
>> arrangements will be made to support our call.
>>
>>
>>
>> In the meantime, I sincerely thank you for taking the time to provide
>> me with your feedback, which contributes to the substantial work of
>> the group on this challenging policy area.
>>
>>
>>
>> Kind regards,
>>
>>
>>
>> Susan Kawaguchi
>>
>> Councilor for the Business Constituency
>>
>>
>>
>>
>
>> _______________________________________________
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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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