[Gnso-newgtld-wg] Deadline 30 June - Comments on Revised Draft Recommendations - Package 6

Thu Jul 9 16:51:15 UTC 2020

Hi Paul,I greatly appreciate your email.  I'll respond quickly now,
and in more depth later day (RPM Working Group meeting soon, as you
know!).
On this most difficult and sensitive of all of the issues in our
SubPro WG is not laid out well for the public. This is not your fault
- or mine - but it is key that it be rectified before we go public
with this summary/request for comment.
"Ban" and "effectively ban"  are not spin, but clear words showing
the impact of the resolution. I don't understand the mantra I keep
hearing about the words of the Board's resolution.  Paul, you and I
know that only lawyers read resolutions and Supreme Court cases. :-) 
Everyone else cares about what the resolution means - and what impact
it created.  That's what the words "ban" and "effectively ban" mean
-- and I renew my objection to their removal (and the procedural
precedent my request has under our procedural rules).  
This section is missing so much basic information -- we don't provide
the public with anything clear or factual about "closed generics
are.". This means we will only hear from "insiders" with vested
interest and not the broader ICANN and Internet Community.  Because
we have not explained key facts, issues and background -- plus the
huge sensitivity of the whole issue and what is at stake -- people
won't be able comment.  Facts are key - and they're missing (and key
ones are newly deleted).
I'm glad we agree that we should talk about next steps and "What
happens if the WG does not agree?"  Shout-out to Jeff and Cheryl:
what could be more important to share?   We've spent weeks (months?)
on this question. We have to publish to the community... 
We have not done our job until we lay this all out clearly.  I look
forward to working with all of you. And renew my objection to the
language now being floated. Only the most innermost insiders will have
a clue..  
Best, Kathy

----- Original Message -----
From: "McGrady Paul D." 
To:"Kathy Kleiman" , "gnso-newgtld-wg at icann.org" 
Cc:
Sent:Thu, 9 Jul 2020 15:26:25 +0000
Subject:RE: [Gnso-newgtld-wg] Deadline 30 June - Comments on Revised
Draft Recommendations - Package 6

	Thanks Kathy.

	Taking each in turn:

	On Monday, I objected to the deletions of words that made Section
2.7.3 (Closed Generics) clear and accessible to the larger ICANN
Community.  The words “ban” and “effectively ban” are clear
and accurate; that’s exactly what the Board resolution did in the
first round.  By the rules of our editing, this objection should act
as a bar on the change. We agreed for these “I can’t live with
it” changes that we all agree or they don’t go in– and we have
set aside many fine changes for lack of full agreement.

	“BAN” AND “EFFECTIVE BAN” ARE SPIN.  MEMBERS OF THE WG
OBJECTED TO THEM ALL ALONG THE WAY.  THE SPIN SOMEHOW MADE IT INTO
THE DRAFT, WHICH I AND MANY OTHERS OBJECTED TO.  SPIN IS NEVER MORE
ACCURATE THAN FACTS, WHICH IS WHY I SUGGESTED WE PUT IN THE ACTUAL
FACTS  - WHAT THE BOARD ACTUALLY DID.  I UNDERSTAND THAT WHAT THE
BOARD ACTUALLY DID MAY NOT HELP THOSE WHO WANT THERE TO BE A BAN ON
SO-CALLED CLOSED GENERICS.  BUT SILENCING THE BOARD’S ACTUAL VOICE
IN FAVOR OF SPIN WON’T INFORM THE COMMUNITY OF WHAT IS REALLY GOING
ON.  IF WE THINK THE COMMUNITY CAN’T READ AND UNDERSTAND BOARD
RESOLUTIONS (I DON’T, IT IS PRETTY DARN CLEAR), WELL, CLARITY OF
BOARD RESOLUTIONS IS OUTSIDE THE SCOPE OF THIS PDP.

	Further, we heard from George Sadowsky, then a member of the Board,
that the 2015 Board resolution on Closed Generics is meant to stand
until the GNSO comes up with another policy. If we had any question
about what the Board meant, that’s our answer and we should share
it.

	ONE FORMER MEMBER OF A BOARD CAN’T SPEAK FOR THE BOARD.  THAT IS
NOT HOW BOARD’S OPERATE.  THEY SPEAK WITH ONE VOICE VIA
RESOLUTIONS.   FURTHER, THERE IS NO NEED FOR ANYONE TO SPEAK FOR THE
BOARD.  THE BOARD’S RESOLUTION SAYS WHAT IT SAYS.  I UNDERSTAND
THAT OPPONENTS OF SO-CALLED CLOSED GENERICS WOULD PREFER THAT
GEORGE’S VIEW OF THE BOARD’S RESOLUTION GOVERNS RATHER THAN WHAT
THE BOARD ACTUALLY SAID, BUT THAT IS NOT HOW BOARDS WORK.  WE
SHOULDN’T SUBSTITUTE GEORGE’S OPINION (NO MATTER HOW MUCH WE MAY
LOVE AND APPRECIATE GEORGE) FOR THE BOARD’S ACTUAL RESOLUTION (WHICH
IS WHY I ASKED THAT IT BE INCLUDED IN THE DRAFT).  SHOULD AN
APPLICANT RUN IN TO TROUBLE LATER AND TRY TO RELY ON GEORGE’S
OPINION RATHER THAN THE BOARD’S RESOLUTION, THAT WON’T BE VERY
HELPFUL TO THE APPLICANT (OR ANYONE ELSE).

	Finally, I heard (and agree) that the question of default is unclear
to the public. This procedural question is very important for the
public to understand and comment on, and not clear in the current
version.

	WE HAVE AGREEMENT HERE, KATHY.  BUT, THE CO-CHAIRS DID NOT WANT TO
DISCUSS WHAT THE STATUS QUO MEANS AND THEY HAVE NOW CUT OFF DISCUSSION
ON THIS ENTIRE TOPIC ON OUR CALLS, SO I GUESS WE HAVE TO LIVE WITH THE
AMBIGUITY.  IF, HOWEVER, THE GOAL HERE IS TO CLAIM THAT THE STATUS
QUO IS A BAN OR EFFECTIVE BAN, I DON’T THINK THAT HAS ANY LEGS (DUE
TO THE BOARD’S RESOLUTION).

	I am willing to withdraw my objections if we add further language to
a) clarify the Board resolution and GAC advice, and b) make clear the
additional question of “default” in future rounds. To that end, I
offer the attached language (showing the full edit history of the WG)
with these newly-offered changes. Attached.  

	KATHY, WE DON’T NEED TO EDITORIALIZE WHAT THE BOARD SAID,
ESPECIALLY WHEN THE EDITORIAL IS NOTHING MORE THAN TRYING TO REWORK IN
THE MYTH OF THE BAN OR EFFECTIVE BAN.  IT IS ALSO QUITE UNHELPFUL FOR
YOU TO SPIN THOSE OF US WHO WANT TO STICK WITH THE BOARD’S
RESOLUTION RATHER THAN YOUR SPIN AS SOMEHOW “IGNORING THE
BOARD.”  SO, I NEITHER SUPPORT THE VERY LOPSIDED DOCUMENT THAT YOU
SUBMITTED NOR YOUR ATTEMPTS TO REINTRODUCE THE SPIN HERE.  LET’S
STICK WITH WHAT THE BOARD SAID INSTEAD.  FACTS ARE BETTER THAN SPIN
ALWAYS.

	Best,

	Paul

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	FROM: Gnso-newgtld-wg  ON BEHALF OF Kathy Kleiman
SENT: Wednesday, July 8, 2020 9:27 PM
TO: gnso-newgtld-wg at icann.org
SUBJECT: Re: [Gnso-newgtld-wg] Deadline 30 June - Comments on Revised
Draft Recommendations - Package 6

	Hi All,

	On Monday, I objected to the deletions of words that made Section
2.7.3 (Closed Generics) clear and accessible to the larger ICANN
Community.  The words “ban” and “effectively ban” are clear
and accurate; that’s exactly what the Board resolution did in the
first round.  By the rules of our editing, this objection should act
as a bar on the change. We agreed for these “I can’t live with
it” changes that we all agree or they don’t go in– and we have
set aside many fine changes for lack of full agreement.

	Further, we heard from George Sadowsky, then a member of the Board,
that the 2015 Board resolution on Closed Generics is meant to stand
until the GNSO comes up with another policy. If we had any question
about what the Board meant, that’s our answer and we should share
it.

	Finally, I heard (and agree) that the question of default is unclear
to the public. This procedural question is very important for the
public to understand and comment on, and not clear in the current
version.

	I am willing to withdraw my objections if we add further language to
a) clarify the Board resolution and GAC advice, and b) make clear the
additional question of “default” in future rounds. To that end, I
offer the attached language (showing the full edit history of the WG)
with these newly-offered changes. Attached.  

	Best, Kathy

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