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

Mon Aug 22 17:57:36 UTC 2016

Phil and the other co-chairs,

Let me ask again the basic question.....what causes of action or types of complaints for which we are talking about mediation?  PDDRP complaints (of which there have been none so far), or some other form of complaints against registries?  If it is the latter, shouldn't we see if there is any agreement on those first?

Jeffrey J. Neuman
Senior Vice President |Valideus USA | Com Laude USA
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman at valideus.com<mailto:jeff.neuman at valideus.com> or jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw

From: Phil Corwin [mailto:psc at vlaw-dc.com]
Sent: Monday, August 22, 2016 11:32 AM
To: Paul Keating <Paul at law.es>; 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)

Just chiming in that, so far as this co-chair is concerned, the formation of this sub-team in no way indicates that the full WG will recommend encouragement of voluntary mediation. It is information-gathering, not decisional, in nature.

It looks like we have an enthusiastic and balanced sub-team and I for one look forward to hearing from them once they have vetted this. Thanks to all who volunteered.

Best, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
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Washington, DC 20004
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202-559-8750/Fax
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Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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 Paul Keating
Sent: Monday, August 22, 2016 11:26 AM
To: Paul McGrady; 'Jeff Neuman'; 'David Tait'
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)

Me too

Can you please help by referencing any record for complaints noted in your email below?

I really want to find out one way or the other if this is an issue and if so how it should be fairly addressed.

PRK

From: Paul McGrady <policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>>
Date: Monday, August 22, 2016 5:20 PM
To: Paul Keating <paul at law.es<mailto:paul at law.es>>, '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)

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<mailto: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<mailto:policy at paulmcgrady.com>>; '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)

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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