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

Greg Shatan gregshatanipc at gmail.com
Tue Aug 23 20:52:12 UTC 2016


Reg,

I agree that it would have to be voluntary (compulsory mediation seems
almost like an oxymoron...).  However, I think that if it's available in
the structure, it's more likely to be suggested, and also more likely to be
accepted. Ad hoc, user generated mediation is much less likely to occur or
gain traction.

I'm not necessarily in favor of mediation in this context(still
open-minded), and I'm also increasingly sympathetic to the Neuman Rule ("absent
evidence demonstrating a need for any changes, we should not be spending
any time on making those changes."), which could end this whole WG a good
deal sooner if adhered to.

Greg

On Tue, Aug 23, 2016 at 4:43 PM, Reg Levy <reg at mmx.co> wrote:

> Mediation, however, must be entered into willingly by both parties and can
> always be requested by either party—as long as they agree to be bound by
> it. It’s just not something that our group needs to spend time on, IMO.
>
>
>
> (also, I didn't mean to impugn anyone other than myself, as I was talking
> about my email that was timestamped 1314 but that I sent closer to 10am……
> o.O)
>
>
> Reg Levy
> VP Compliance + Policy | Minds + Machines Group Limited
> C: +1-310-963-7135
> S: RegLevy2
>
>
> UTC -7
>
> On 23 Aug 2016, at 13:39, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> While I hate to disagree with anyone, I don't think the idea of mediation
> presupposes anything about registries -- at least nothing bad.  If
> anything, it presupposes that registries are generally reasonable, and that
> it would be worthwhile having a mediation step before the PDDRP to see if
> the issue causing a party to contemplate filing a PDDRP can be resolved
> through an exchange of views and concerns in the warm embrace of a skilled
> mediator.
>
> I think the idea of mediation also presupposes that the PDDRP is a heavy,
> blunt instrument, and that a lighter weight method of dealing with an issue
> before wielding the heavy blunt instrument would be a good thing.
>
> I may have missed something, but I thought the primary impetus for
> mediation was to serve as a gateway for PDDRP.  Analyzing it as an
> alternative to complaining to ICANN about registry behavior did not seem to
> be part of the equation, initially (and is also not part of our mandate).
>
> Greg
>
> On Tue, Aug 23, 2016 at 1:38 PM, Reg Levy <reg at mmx.co> wrote:
>
>> I agree—this is an unnecessary task that presupposes registries are bad
>> actors.
>>
>>
>> Reg Levy
>> VP Compliance + Policy | Minds + Machines Group Limited
>> C: +1-310-963-7135
>> S: RegLevy2
>> <mmx_logo-edges_2[3].png>
>>
>> UTC -7
>>
>> On 23 Aug 2016, at 09:37, Dorrain, Kristine via gnso-rpm-wg <
>> gnso-rpm-wg at icann.org> wrote:
>>
>>
>>
>> I am very concerned that the formation of a mediation subteam to gather
>> information presupposes the question.  If in fact, there is a problem with
>> brand owners running to ICANN to report pervasive bad faith activities *by
>> a registry* rather than working things out with the registry, we don’t
>> have evidence of this.  We cannot presuppose that mediation is the right
>> answer when we don’t know the question.  If we want to create a sub team to
>> investigate problems, lets do that.  But creating a subteam to discuss a
>> SOLUTION for which a problem has yet to be identified is putting the cart
>> before the horse.  Even if problems are identified, it’s not a foregone
>> conclusion that mediation is going to be the right answer.
>>
>>
>>
>> Thanks,
>>
>>
>> Kristine
>>
>>
>>
>> Kristine Dorrain
>>
>> Corp Counsel – IP | Amazon | 206.740.9339
>>
>> dorraink at amazon.com
>>
>>
>>
>>
>> *From:* gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at ic
>> ann.org <gnso-rpm-wg-bounces at icann.org>] *On Behalf Of *Jeff Neuman
>> *Sent:* Monday, August 22, 2016 10:53 AM
>> *To:* Paul McGrady <policy at paulmcgrady.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)
>>
>>
>>
>> Paul,
>>
>>
>> As much as I love the sentiment of giving peace a chance, isn’t that
>> usually chanted when there is actually a war going on?  My assumption is
>> that unless there is evidence to the contrary, aren’t  we at peace already
>> J  At this point I am not aware of any complaints of a PDDRP nature
>> (meaning that registries have profited off of the infringement of third
>> parties as a result of their affirmative conduct – which is a paraphrase of
>> the standard).  Therefore, spending any time working on a mediation program
>> for the pddrp when there is no evidence that there was any activity that
>> would have led to a valid pddrp complaint seems like spinning our wheels.
>>
>>
>> What it seems like you are talking about is a general mediation program
>> for any complaints about registry activity whether or not of a pddrp
>> nature.   If we went down that path, I still think this subgroup is
>> premature because we have not documented the types of “causes of action”
>> for which mediation could or should be sought.  That should be step 1.
>>
>>
>> *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 or jeff.neuman at comlaude.com
>>
>> T: +1.703.635.7514
>>
>> M: +1.202.549.5079
>>
>> @Jintlaw
>>
>>
>>
>> *From:* Paul McGrady [mailto:policy at paulmcgrady.com
>> <policy at paulmcgrady.com>]
>> *Sent:* Monday, August 22, 2016 10:48 AM
>> *To:* 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)
>>
>>
>>
>> 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 ic
>> ann.org <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>
>> *Cc:* 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> 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
>>
>> www.icann.org
>>
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>
>
>
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