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

Tue Aug 23 22:36:26 UTC 2016

Hello everyone – just a note that the co-chairs and staff are preparing to send out the agenda for the next WG meeting, and it is likely that the agenda will include at least a brief discussion of the timeliness and scope of work of such a Sub Team.

If I may add, the staff understanding of the role of the Sub Team is not to discuss whether to add mediation to the TM-PDDRP (which would be a task for the full Working Group), but to develop some high-level principles that can guide the eventual creation and implementation of such a mechanism, if the Working Group ultimately decides to recommend adding it to the Procedure. For example, the Sub Team could contact other mediation service providers such as JAMS and Nominet (as suggested previously by some Working Group members) for information on what the mechanism might look like. It could also discuss some of the more open questions on this issue that Working Group members have raised already (e.g. whether a skeletal complaint is sufficient, whether mediation services must be provided by existing TM-PDDRP providers, etc.). Any and all general principles agreed on by the Sub Team would of course have to be brought back to the full Working Group for further deliberation – and this would be the case regardless of whether the Sub Team commences work now, or at some future (possibly more appropriate) point in the PDP.

I hope this is helpful.

Cheers
Mary

Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: mary.wong at icann.org
Telephone: +1-603-5744889

From: <gnso-rpm-wg-bounces at icann.org> on behalf of Paul McGrady <policy at paulmcgrady.com>
Date: Wednesday, August 24, 2016 at 05:59
To: 'Reg Levy' <reg at mmx.co>, "'Dorrain, Kristine'" <dorraink at amazon.com>
Cc: "gnso-rpm-wg at icann.org" <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 Reg,

I think it is just fine to wait on this subgroup until the end of the substantive discussions on the PDDRP.  If no changes to the substantive elements of the never-used Policy are needed, then having a mediation mechanism in place for a never used Policy doesn’t seem terribly useful.  So, I hybrid of the Neuman rule – if we don’t yet know its broken, don’t rush in to improve implementation.

Best,
Paul

From: Reg Levy [mailto:reg at mmx.co]
Sent: Tuesday, August 23, 2016 12:39 PM
To: Dorrain, Kristine <dorraink at amazon.com>
Cc: Jeffrey J. Neuman <jeff.neuman at comlaude.com>; Paul McGrady <policy at paulmcgrady.com>; David Tait <david.tait at icann.org>; 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)

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
[cid:image001.png at 01D1FDD1.D503C000]

UTC -7

On 23 Aug 2016, at 09:37, Dorrain, Kristine via gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto: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<mailto:dorraink at amazon.com>

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: Monday, August 22, 2016 10:53 AM
To: Paul McGrady <policy at paulmcgrady.com<mailto:policy at paulmcgrady.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)

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 ☺  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<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: Paul McGrady [mailto:policy at paulmcgrady.com]
Sent: Monday, August 22, 2016 10:48 AM
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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