[Gnso-igo-ingo-crp] Board-GAC Dialogue on IGOs

Tue Mar 13 23:26:02 UTC 2018

Hi folks,

Once again, this PDP shouldn't be influenced by those pointing to
external pressures to reach a predetermined outcome that doesn't
"conflict with GAC advice" (in WIPO's words), or that want a so-called
"solution" to a problem that only IGOs believe exist, and which
they've not demonstrated during the course of this PDP. The weight of
our report has already dismissed the underlying premise behind the
IGOs' arguments, articulating why in a reasoned manner, and I think
there's a consensus on that already (we'll wait and see, but that's
been the tone of the debate within the working group so far, before it
gets decided formally). WIPO or Chris Disspain could have and should
have joined this PDP if they had anything useful to contribute --
legal, analysis, evidence, data, or whatever. They chose not to do so.
If they're going to dispute our findings, it's not good enough to
simply say "we're not happy" -- they need to point out an error in the
analysis, which they've been unable to do.

Where the major divisions have emerged are with regards to handle the
"quirk of process" that have absolutely to do with improving access to
the UDRP/URS for IGOs. Recommendation #4 has everything to do with how
to handle the quirk of process for the benefit of *registrants*.

As I've argued previously, since this is a benefit for the registrants
and has nothing to do with our charter as written (it was a quirk of
process  discovered in the context of researching IGOs, immunity and
the UDRP/URS, but is outside the charter's narrow focus), then the
issue should have simply been noted, and the facts/research passed
along to the RPM PDP, whose entire purpose revolves around reviewing
the UDRP/URS for the unintended consequence of those policies. That
quirk of process is an example of an unintended consequence.

In my section 3.7 Appeal call with Heather Forrest, this was pointed
out, that this was a threshold test, whether to even make a
recommendation #4. There were no formal "conclusions" per se of that
appeal (we seem to be handling it informally at the moment), but
Heather seemed to indicate (that call was recorded and is on the wiki)
that the charter's remit could be expanded in practice beyond what the
actual words of the charter say. If that's the case (I'm not saying I
agree with that, but for the sake of argument), then the question
becomes, "If we *can* make a recommendation on this quirk of process,
*should* we make one?"

Here, once again, we can look to the charter which says (in the
Amended PDP charter):

https://community.icann.org/display/gnsoicrpmpdp/WG+Charter

"As part of its deliberations, the CRP PDP WG should, at a minimum,
consider the following issues detailed in Section IX of the Final
Issue Report. These are:
...
The interplay between the topic under consideration in this PDP and
the forthcoming GNSO review of the UDRP, URS and other
rights-protection mechanisms;"

That's *clearly* stated in the charter -- and that's why Zak's
proposal makes sense as it explicitly considers that interplay which
we're supposed to specifically contemplate. Indeed, the Charter goes
on to say that:

"Bear in mind that any recommendations relating to the UDRP and URS
that are developed by this PDP WG may be subject to further review
under the GNSO’s forthcoming PDP to review the UDRP and all the rights
protection mechanisms that were developed for the New gTLD Program."

So, why engage in duplicative effort to come up with a solution that
is going to be revisited again later, with a group that's larger and
more well represented than our own?? I've *already* raised this issue
in the RPM PDP (in the context of the URS deliberations, as that's
where we are now, and will do so again when it gets tor the UDRP), as
this quirk of process has an underlying problem that also is related
to the "lack of cause of action" issue that affects access to the
courts for registrants in the UK, as per the Yoyo.email matter
previously discussed. The solution for the Yoyo.email cause of action
issue in the UK should ultimately be the same as the immunity issue
(not just for IGOs, but there can be tribal immunity, or other
immunities) given they both ultimately concern registrant access to
the courts.

That's the proper analysis, and those pushing to reach a different
conclusion really haven't articulated why the above is wrong. They're
the ones holding back a "consensus", in my view, not the ones like
myself who are making a logical argument. Provide a logical reason for
not doing the above --- I've failed to see one. Saying "well, the GAC
won't like it" or "WIPO won't like it" or "you've gotta compromise,
George" doesn't cut it -- that's playing politics, rather than making
sound judgments based on what the law, data and analysis tell us. I'm
not prepared to turn off my brain, "hold my nose", or agree with
unsound or illogical arguments just for the sake of a false compromise
that "has the most votes".

Now, if we have a gun to our heads (not a logical argument, but giving
in to coercion), and we're going to *have* to decide what to do next,
then arbitration as a recommendation isn't a proper outcome to what a
PDP should be. Its "solution" is to accept and preserve the "quirk of
process", which makes no sense. How can our PDP identify a bug, but
then decide to preserve it, instead of eliminating it (as option #1,
setting aside the UDRP/URS decision to ensure courts have supremacy,
would do)? It shows a lack of courage to find a bug but not actually
do the right thing and fix the bug. Do that in another context (e.g.
software programming, etc.) and one would get fired for coming up with
such a bad decision.

Phil's repeated attempts to sell arbitration as some sort of
compromise is like the fallacious "Judgment of Solomon" in offering up
"splitting the baby" as a "compromise". It's not based on any sound
reasoning. It's a false compromise.

Option #1 (setting aside the UDRP/URS decision to give the courts a
clean slate), or something like it that the RPM PDP can determine in
due course, has a solid foundation, namely that it is 100% consistent
with the principle that ICANN should not be creating policies that
create new "law" or rights --- i.e. that our policymaking is
subordinate to the real world laws. This is not some new principle --
it's a long-established principle that was the foundation of how the
UDRP was created nearly 20 years ago. The UDRP wouldn't have been
accepted had it intentionally created new rights that superseded the
national laws.

Option #1 recognizes that the UDRP and URS as currently written are
*causing* that quirk of process (where the registrant's rights to have
the dispute decided on the merits in the courts is being affected),
via an unintended consequence. The solution, which was obvious from
the start  (that's why it's numbered Option #1, because it was a
solution given first when the issue was identified) was simply to put
the parties (IGO and domain owner) back in the same positions they
were before they even had the UDRP/URS, and let them solve the dispute
**in court**, as if the UDRP/URS had never taken place.

Essentially, we've been sidetracked for more than a year because a
second alternative was suggested at some point as a "compromise" that
had no logical foundation and that had no consistency with the rest of
our report (which led to even more alternatives as things snowballed).
Our report was premised on the idea that we shouldn't do anything
special for IGOs, because that would be giving them new rights not
found in law (i.e. we shouldn't be creating any new rights for anyone,
we should be subordinate to the real world law).

The real world law is simple. A TM holder or other party disputing a
domain registrant's rights takes the domain registrant to court.
That's what Option #1 accomplishes, ultimately! It doesn't get any
simpler or cleaner than that. The effect of option #1 is the desired
effect that premised the entire UDRP/URS, namely that national courts
have supremacy.

As I said above, we can get to that conclusion that Option #1 is
correct within the RPM PDP, and should refer it to them (via Zak's
proposal) to decide it there and get it implemented.

Indeed, ICANN is talking about budget cuts these days. I don't know
how anyone can pragmatically support investing the time, money and
energy to create a brand new arbitration system (i.e. via an
Implementation Working Group that needs to be staffed which costs
money, not even counting the time wasted by volunteers), for a
scenario (the quirk of process) that has never actually been
experienced yet (i.e. we've discovered a theoretical bug, one that is
interrelated with the Yoyo.email "cause of action" scenario that has
*actually* taken place, which isn't theoretical). For those in the RPM
PDP, that's why the review of the PDDRP (a dispute resolution
procedure for registry operators) went so fast -- because it was a
policy that had never been used, and ultimately it was decided to
change nothing. We've spent over a year analyzing a scenario that
hasn't actually been encountered (although it is something that should
get fixed, along with the Yoyo.email situation, as the RPM PDP does
its review, since it affects access to courts by registrants
ultimately through the same root cause). And then even if a
Implementation Working Group comes up with something after a year or
two, it can be undone by the RPM PDP ultimately, given it even says so
in our charter.

The path before us is clear. I hope the rest of the members of this
PDP will join those of us who've thought through all of the above
matters deeply and come to the same conclusion.

Sincerely,

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

On Tue, Mar 13, 2018 at 5:39 PM, Corwin, Philip via Gnso-igo-ingo-crp
<gnso-igo-ingo-crp at icann.org> wrote:
> I post this in my capacity as a WG member, not a co-chair.
>
>
>
> The Board and GAC just discussed the issue of IGOs and this WG. The relevant
> portion of the transcript is below.
>
>
>
> I have been clear in the past that the issue of IGO access to curative
> rights processes is a very high level one within ICANN, and that the failure
> of this WG to reach consensus on a compromise approach that can at least be
> adopted by GNSO Council risks the matter being resolved in another manner
> other than that of the PDP WG.
>
>
>
>
>
>
>
>>>MANAL ISMAIL:   THANKS, GORAN.  AND AGAIN, I THANK -- I THANK ICANN PEOPLE
>>> FOR THE CONSTRUCTIVE DISCUSSION, AND ALSO I THANK MY GAC COLLEAGUES FOR
>>> SHOWING FLEXIBILITY AND WILLING TO FIND A CONSTRUCTIVE WAY FORWARD, WHICH
>>> WAS REALLY HELPFUL AT THE END OF THE SESSION; TO FIND AN AGREED WAY FORWARD.
>>> AND WE'LL KEEP FOLLOWING UP WITH ICANN ORG ON THIS, OF COURSE.
>
> SO WITH THIS, WE CAN NOW MOVE TO GAC QUESTIONS.  AND AGAIN, MAYBE WE CAN
> TAKE THEM IN REVERSE ORDER AS WELL.  SO WE CAN START WITH THE IGO
> PROTECTIONS, BECAUSE THIS IS JUST ONE QUESTION.  AND THEN WE GO TO THE GDPR.
> I SEE NODDING, SO...
>
> SO HERE, IN A LETTER OF 22nd DECEMBER TO DONUTS, 2017 TO DONUTS,
> INCORPORATION, CONCERNING EUCLID UNIVERSITY THE BOARD VICE CHAIR AND THE
> PRESIDENT OF THE GLOBAL DOMAINS DIVISION NOTED THAT THE PROTECTIONS FOR IGO
> ACRONYMS REMAINS A TOPIC OF DISCUSSION BETWEEN THE GNSO AND THE GAC AND IS
> BEING FACILITATED BY FORMER ICANN BOARD MEMBER BRUCE TONKIN.
>
> SO CAN THE BOARD CONFIRM THAT THE FACILITATED PROCESS IN THIS REGARD HAS NOT
> PROGRESSED SINCE THEN, SINCE ICANN58, AND INDICATE WHAT ARE THE NEXT STEPS?
>
> THANK YOU.
>
>>>CHRIS DISSPAIN:   THANK YOU, MANAL.
>
>>>MANAL ISMAIL:   YES, PLEASE.
>
>>>CHRIS DISSPAIN:   CHRIS DISSPAIN.  THANK YOU FOR THE QUESTION.  YES, IT
>>> HAS PROGRESSED.
>
> THE SITUATION IS THAT THE FACILITATOR -- THE FACILITATION THAT BRUCE TONKIN
> DID LED TO AN UNDERSTANDING THAT ICANN ORG WOULD LOOK INTO CREATING WHAT
> WE'RE SHORTHANDING AS A WATCH LIST WHICH WOULD ENABLE IGOs TO BE INFORMED IN
> THE EVENT THAT SOMETHING THAT WAS AN ACRONYM OF THEIR NAME WOULD BE -- HAD
> BEEN REGISTERED.  THAT -- THAT'S -- ICANN ORG ARE WORKING ON THAT AND ON
> FIGURING OUT HOW TO DO THAT.
>
> IN PARALLEL TO THAT, THE GNSO WAS RUNNING A CURATIVE RIGHTS MECHANISMS PDP,
> AND WE HAD DECIDED THAT -- WE ALL AGREED, REALLY, THAT THE CURATIVE RIGHTS
> PDP NEEDED TO BE COMPLETED BEFORE, SO THAT WE COULD EFFECTIVE LAUNCH
> EVERYTHING AT THE SAME TIME.  SO THAT YOU COULD RELEASE -- UNRESERVE THE
> ACRONYMS, RELEASE THEM, AND THEN THE WATCH LIST WOULD PROVIDE IGOs WITH
> NOTIFICATION, AND THEN THEY WOULD HAVE THE CURATIVE RIGHTS TO FALL BACK ON
> SHOULD THEY NEED THEM.
>
> THE BOARD LEARNED TODAY THAT THERE MAY BE SOME ISSUES WITH THE -- WITH GNSO
> POLICY DEVELOPMENT PROCESS.  IT APPEARS TO HAVE HIT A BIT OF A PROBLEM IN
> REACHING CONSENSUS, AND IT MAY BE THAT THAT PDP, IN FACT, WILL FAIL TO REACH
> CONSENSUS, IN WHICH CASE, IF I UNDERSTAND IT CORRECTLY, WE WOULD NEED TO
> FIND A SOLUTION, ANOTHER -- ANOTHER WAY.
>
> JUST -- AT THE MEETING WE JUST HELD WHICH WAS WITH THE CONTRACTED PARTIES
> HOUSE, WE AGREED TO HAVE A CONVERSATION WITH THE -- WITH THE CONTRACTED
> PARTIES HOUSE, OR, RATHER, WITH THE REGISTRARS; SEE IF WE COULD FIND A WAY
> OF SHORE CUTTING THE SYSTEM TO A WAY OF A CURATIVE RIGHTS MECHANISM SO WE
> CAN MOVE FORWARD ON THIS.  SO THINGS ARE MOVING.  THEY'RE JUST MOVING
> SLOWLY….TO FINISH OFF, JUST TO SAY THAT WE -- WE GOT SOME INFORMATION TODAY,
> WHICH I'VE NOW TOLD YOU, AND WE ARE SEEING IF WE CAN FIND A WAY AROUND THAT.
> AND BELIEVE ME WHEN I SAY THAT I'M AS KEEN TO SORT THIS OUT AND GET RID OF
> IT AS YOU ALL ARE.
>
> THANK YOU.
>
>
>
>>>WIPO:   THANK YOU, CHAIR.  I JUST WANTED TO FOLLOW ON WHAT CHRIS SAID BY
>>> WAY OF THANKING CHRIS AND OTHERS INVOLVED FOR MOVING THIS PROCESS ALONG.
>>> WE'VE BEEN PLEASED TO SEE THAT IN TERMS OF THE FULL-NAME PROTECTION, WE
>>> BELIEVE WE'VE MADE A LOT OF PROGRESS.  AND WE HAVE A LITTLE BIT OF WORK TO
>>> GO TO NARROW THE GAP, AND WE'RE HOPING THAT WE CAN RELY ON ICANN FOR A
>>> LITTLE BIT OF ASSISTANCE IN THAT RESPECT.
>
> SO I JUST, AGAIN, WANTED TO RECORD THAT WE'RE PLEASED TO SEE THAT MOVING IN
> A GOOD DIRECTION.
>
> AND THEN JUST TO ALSO PICK UP ON WHAT CHRIS SAID, WE HAVE HAD NOT ONLY
> SERIOUS CONCERNS WITH THE INTERIM REPORT OF THIS GNSO WORKING GROUP, WHICH
> HAS SIGNALED THAT IT WOULD COME OUT WITH RECOMMENDATIONS WHICH SQUARELY
> CONFLICT WITH GAC ADVICE, BUT ALSO IN THE PROCESS BREAKDOWN IN THE WORKING
> GROUP ITSELF.  AND OBVIOUSLY THAT'S AN AREA WHERE I THINK WE'RE ALL LOOKING
> TO SEE WHAT UNFOLDS.
>
> THANK YOU.
>
> (Emphasis added)
>
>
>
> 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
>
>
>
>
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