[gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for volunteers - RPMs Working Group, Mediation sub-team)

Mon Aug 22 15:20:11 UTC 2016

Thanks Paul K. for these thoughts.  Looking forward to working with you on
the Subteam to see if we can get this one sorted.

Best,

Paul M.

Paul D. McGrady, Jr.

policy at paulmcgrady.com

From: Paul Keating [mailto:Paul at law.es] 
Sent: Monday, August 22, 2016 10:07 AM
To: Paul McGrady <policy at paulmcgrady.com>; 'Jeff Neuman'
<jeff.neuman at comlaude.com>; 'David Tait' <david.tait at icann.org>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for
volunteers - RPMs Working Group, Mediation sub-team)

If in fact there have been complaints to ICANN about the issue of Registry
activities with respect to this issue, I would like to see them documented
for the benefit of the WG.  When we 1st discussed the burden of proof issue
the question was raised but not substantiated - that there had been no
complaints because the burden was too high.  The question was raised as to
whether complaints had been made.  I did not see any evidence put forward
that any complaints had been even attempted.

If there has been a "tendency to run to ICANN Staff & Board with complaints"
then there should be some record of such.  I would like to see those records
and I request that Mary try to dig them up for us.  If these comments are
unsubstantiated then they are not worth much IMHO.  If they are
substantiated then they are worth investigating further.

While I have volunteered for the sub-group on mediation, I still consider
Jeff's point (which I had echoed on calls as well)  to be a primary guiding
point for me.   Just as I did not see the need to fix something that was not
broken, I do not favor a new system that will reduce the burden of "making a
claim" with the result of placing an unfair burden upon registries and
registrars to deal with each and every complaint or concern.  

While it is certainly costly for trademark holders to police their marks, we
need to remember that registries and registrars are a high-volume/low-margin
business (a registrar for example might make as little as 50Cents on every
domain registration - w which will cover about 15 seconds of legal time).

Given that the registries/registrars are really operating under contract
with ICANN and that the dispute mechanism we are discussing is essentially a
"private right of action" we need to take care not to relieve ICANN of its
primary responsibility to police its own agreements.  And, we must be
careful about the relative burdens/profits involved as between the
underlying "claimants" (trademark holder vs registry/registrar).

From: <gnso-rpm-wg-bounces at icann.org <mailto:gnso-rpm-wg-bounces at icann.org>
> on behalf of Paul McGrady <policy at paulmcgrady.com
<mailto:policy at paulmcgrady.com> >
Date: Monday, August 22, 2016 4:48 PM
To: 'Jeff Neuman' <jeff.neuman at comlaude.com
<mailto:jeff.neuman at comlaude.com> >, 'David Tait' <david.tait at icann.org
<mailto:david.tait at icann.org> >
Cc: <gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org> >
Subject: Re: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for
volunteers - RPMs Working Group, Mediation sub-team)

Hi Jeff,

I agree with the general sentiment that if it's not broken, we should not be
out looking for ways to fix it.  However, in the case of building in a
mediation mechanism, rather than a change to the elements of a complaint, I
think we may want to make an exception here if it "gives peace a chance" in
the long term.  

One of the complaints the IPC heard from the Registry House in Helsinki was
that there is a tendency to run to ICANN Staff & Board with complaints
instead of dealing with the registry in the first instance to see if it can
be resolved.  The additional of a mediation option seems, to me, to bake in
an opportunity and method for that dialogue in advance of a more formal
complaint (via PDDRP or to Staff/Board).  In other words, all the mediation
program would do is make a way forward for what we all aspire to anyway -
talking our problems out with each other.  

Best,

Paul

From: gnso-rpm-wg-bounces at icann.org <mailto:gnso-rpm-wg-bounces at icann.org>
[mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Jeff Neuman
Sent: Sunday, August 21, 2016 8:20 PM
To: David Tait <david.tait at icann.org <mailto:david.tait at icann.org> >
Cc: gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org> 
Subject: [gnso-rpm-wg] Objection to PDDRP Mediation (was Re: Call for
volunteers - RPMs Working Group, Mediation sub-team)

Just to be clear, this is about mediation as it relates to the Post
Delegation Dispute Resolution Policy, not mediation of disputes in general. 

I still have a standing objection about the formation of this group and
looking at mediating issues between a registry operator and a complainant as
there has been no evidence for the need of such a program since there has
been no evidence yet of any situation that could have given rise to a PDDRP
dispute. 

I will continue to be a broken record on this l, but absent evidence
demonstrating a need for any changes, we should not be spending any time on
making those changes. 

Jeff Neuman

On Aug 19, 2016, at 12:19 PM, David Tait <david.tait at icann.org
<mailto:david.tait at icann.org> > wrote:

Dear Working Group members

At its meeting on 17 August 2016 the Working Group concluded that there was
a need to convene a sub-team to review the issue of Optional mediation and
put forward an outline proposal for consideration by WG. Staff would
therefore invite those who would be interested in participating in this
sub-team to respond to this email and we will begin the process of
establishing the sub-team.

We would kindly request that you send us any responses by 0900 UTC 24 August
2016

Please note that Petter Rindforth has already kindly volunteered for this
sub-team.

Kind regards,

David Tait

David A. Tait

Policy Specialist (Solicitor qualified in Scotland)

Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: + 44-7864-793776

Email:  david.tait at icann.org <mailto:david.tait at icann.org>  

www.icann.org <http://www.icann.org> 

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