[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Sat Apr 8 19:07:09 UTC 2017

Some thoughts on this thread:

We are charged with reviewing the actual performance of the RPMs created for the new gTLD program and determining if they are individually and collectively effective.  Inherent in that review is an accompanying assessment of their impact on and attendant costs leveled on all parties -- trademark holders, contracted parties, registrants, and general Internet users -- and whether they are operating in a balanced fashion.

These RPMs were developed over the course of several years, are inherently imperfect, and represent a compromise among parties with divergent views and interests. So whether or not the balance they represent is subjectively "appropriate", there is some prior consensus within the ICANN community on the question of  balance already reflected in them. This is not a zero-based exercise in which we are obligated to re-litigate and reconsider the very existence of a particular RPM and whether it is fundamentally unbalanced in concept -- its very existence indicates that those who shaped the RPMs had some rough consensus on that balance.

But if a member of the WG wants to make that argument that an RPM is inherently and irredeemably unbalanced that is his or her right. I would remind all members, however, that advocating a policy change for which consensus is unlikely to ever be reached is probably not a productive use of our time. Unless an RPM has been shown in practice to be utterly ineffective, or to have excessively negative impact on other stakeholders, and we have determined that no reasonable adjustments can remedy those defects, the chances of it being eliminated are likely close to zero.

Likewise, just because an RPM has been found to be reasonably effective does not mean that advocating for its unfettered expansion would not upset the previously acceptable balance, or yield significantly greater benefits for rights holders.

Summing up, the most likely proposals to achieve consensus support and the absence of strong and deep objections from significant numbers of other WG members are those that tweak the existing RPMs around the edges and represent incremental, positive, and reasonably balanced change. I'm a great believer in incremental change, if for no other reason that it's generally the only kind on which consensus can be reached and some progress made in policy debates.

I would hope that all WG members who propose specific alterations of the existing RPMs will clearly state what defects are being targeted, what benefits are expected to flow from the proposal, and also be candid about what new costs or burdens they may create for other stakeholders. Proposals that can get past such a cost/benefit analysis are the ones most likely to achieve consensus, wind up in our Final Report, and be sent on to GNSO Council.

I hope those thoughts are useful. Have a good weekend.

Best, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

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

-----Original Message-----
From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George Kirikos
Sent: Friday, April 07, 2017 2:07 PM
To: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

P.S. TMCH question #16 says:

"Does the scope of the TMCH and the protection mechanisms which flow from it, reflect the appropriate balance between the rights of trademark holders and the rights of non-trademark registrants?""

Some people here (the "status quo paralysis" camp) don't seem to be prepared for the scenario where the answer to that question is "No", and want to prejudge that answer as "Yes". An answer of "No", to go to John McElwaine's earlier statement, is certainly consistent with a conclusion that it was a policy mistake.

Since TMCH Question #16 has already been approved as a valid question and in scope of this PDP, are some people unhappy it's there?

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Fri, Apr 7, 2017 at 1:57 PM, George Kirikos <icann at leap.com> wrote:
> Hello,
>
> On Fri, Apr 7, 2017 at 1:39 PM, Colin O'Brien 
> <colin at partridgepartnerspc.com> wrote:
> "It is not the place for a handful of individuals to declare that 
> everything should be reviewed and they should be entitled to challenge 
> past assumptions allowing this to happen will result in a tyranny of 
> few creating paralysis in this working group.  The end result of this 
> paralysis  will ensure no tangible fixes are made to the RPM system in 
> ICANN and everything remains in status quo."
>
> It's not the place, in a review group, to say we shouldn't be doing 
> the work of a review group. Paralysis is caused by folks saying that 
> "all has already been asked and answered before", rather than by folks 
> saying "let's gather the data, review it, test past assumptions in 
> light of this data, and make conclusions accordingly."
>
> Everything remains in the status quo if we *don't* put in the work, 
> and it seems that's what some folks are happy with. If folks aren't 
> prepared to put in the work, and are just here to ensure the status 
> quo remains unchanged, then they're the cause of paralysis, blocking 
> others who are here to work hard.
>
> John McElwaine followed up with:
> "I believe it is out of our scope to be debating whether an RPM, or a 
> particular aspect of one, was "wrong policy" or "a policy mistake". "
>
> If that's where the data leads us, why wouldn't it be in scope to say 
> that the deleterious effects of a given policy exceeded the salutory 
> effects, i.e. the cons outweighed the pros? That's a fundamental part 
> of any review.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg at icann.org
https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

-----
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2016.0.8012 / Virus Database: 4769/14262 - Release Date: 04/07/17