[gnso-rpm-wg] Actions & Notes: RPM PDP WG Meeting 03 October 2018

Wed Oct 3 19:40:11 UTC 2018

Dear All,

Please see below the action items and notes captured by staff from the RPM PDP Working Group call held on 03 October 2018 (17:00-19:00 UTC).  Staff have posted to the wiki space the action items and notes.  Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, AC chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-10-03+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG. 

See also the proposals at: https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals. 

Best Regards,

Julie

Julie Hedlund, Policy Director

==

NOTES & ACTION ITEMS

Chair: Phil Corwin

1.  Review Agenda/Statements of Interest Updates: No updates.

2.  Discussion of Individual URS Proposals (See: https://community.icann.org/x/aACNBQ): 

Order of Presentations: 22, 26, 27, 29, 28, 30, 31, 32 

Brian Winterfeldt’s team (no. 22): https://community.icann.org/download/attachments/93126760/URS-Proposal-22.pdf?api=v 

Presented by John McElwaine

Discussion:

-- Since we are trying to determine if there is adequate support notwithstanding opposition, we will lean towards inclusion in the Initial Report.

-- Concerns about identify theft issues and that registrant would be liable for damages for a name they never registered.

-- Concern about undermining confidence in ICANN to have URS become a pseudo court that adjudicates money disputes.  Putting out for public comment would be seen as a power grab to usurp the role of the courts.

-- Question: Does the loser pay to both the complainant and the respondent?

-- Question: Does this only apply to registrants that are habitual cyber squatters and if so what kind of numbers would determine that?

-- Question: It isn't just loser pays but recovery of legal fees (by the registrant)?

-- Imposing a filing fee to all respondents would be a barrier to access.

-- Any proposal for a user pays system should be set out with exactly what is being proposed, rather than the details filled in later.

-- For escrow, suggest a third party.

Response:

-- We would not adjudicate the amount of legal fees.  The fees would be set at a maximum small amount.

-- Not adjudicated against the respondent -- not need to be paid until they file their answer.

-- Applies to both parties -- amount by complainant and respondent held in escrow.  Delivered to the prevailing party.  Also some amount to the registry for their administrative costs.

-- Threshold: Could be an additional remedy if it only applied to an habitual offender, or could apply in all cases -- that would be for the community to decide.

Zak Muscovitch (no. 26): https://community.icann.org/download/attachments/93126760/URS-Proposal-26.pdf?api=v2 

Discussion:

-- Support for the proposal.

-- Question: Forum has a search page where you can enter the arbitrator name, etc.  What in addition to that would he be looking for?

-- Question: What harm has been identified?

-- Question: Is this issue unique to the URS or for the UDRP?

-- Support for the proposal and interacts with other proposals.

Response:

-- Re: the search function on Forum web site -- tweaking it would make it even more useful.  Such as seeing how many decisions are provided over I would have to do that through many searches. 

-- Re: harm -- From Prof. Tushnet's data there was a wide discrepancy, which could mean two problems 1) any system requires a degree of transparency of who is adjudicating and if there is a concentration of adjudicators, which could be a breach of the policy and inadvertently relying on a small group of panelists; 2) if a select group is only deciding these cases then they aren't representing the full group.

-- Re: applicable to UDRP -- comes up there as well and would propose in the context of UDRP.

Zak Muscovitch (no. 27): https://community.icann.org/download/attachments/93126760/URS-Proposal-27.pdf?api=v2 

Discussion:

-- Seems to be an unnecessary recommendation.  Seems like we've already included a recommendation on this.

-- Question: Don't know if the proposal is asking if the providers should be ensuring the CVs should be updated.

-- Support, but should be more specific -- updated at least once a year.

-- Suggest when the CV is updated it should have a time stamp to indicate when it was last updated.

-- Suggest URS provider should be sending reminders.

-- Support and agree with annual updates.

Response:

-- This is a minor change.

-- Re: Can't hold the provider responsible for CVs that aren't accurate, but the panelists should be required to post updates to their CVs.

George Kirikos (no. 29): https://community.icann.org/download/attachments/93126760/URS-Proposal-29.pdf?api=v2 

Discussion:

-- Comments: Cost providers a lot of money to implement.  Depending on the specification and output there would need to be retranslations and reviews.  URS modeled to be fast and automated.  Would start from scratch to put these in place.  

-- Would the same cost apply for doing this for only new cases?  The cost would be less over time, but we'd need to redo the process.

-- Support for the proposal.  Support focusing on doing it going forward.

-- Where would the costs be picked up for initial set up?  Opposed to the proposal. Not a transparency issue since the data are published.  Need to be clear what the costs will be, who picks up the costs, and who the benefit is for.

-- Question: Are there any limitations? 

-- Question: What is the benefit of this proposal versus the search function already on the web site.  WIPO does not support.

Response:

-- You can't capture the fields you want to search by that you can't capture in freeform text.

-- The responses by the panelists/rationale wouldn't be standardized, although the decision would be.

-- Who would benefit: Not a small group because it would encourage a wider group to study these cases.

Zak Muscovitch (no. 28): https://community.icann.org/download/attachments/93126760/URS-Proposal-28.pdf?api=v2 

Discussion:

-- Question: If there is a proposal for a conflict of interest policy, would the details be worked out in implementation?  Answer: The role of the WG is to develop the policy recommendation and if approved an implementation team comprised from community volunteers works with the Global Domains Division (GDD) to develop implementation details.  However, the PDP WG could provide guidelines.

-- Worth considering. Helpful to have clear guidance on what a conflict of interest means and unify over jurisdictions.

-- Address potential for conflicting rules for conflicts of interest.

Response:

-- Not asking for the providers to write up a specific policy?  No.

-- Not asking the public to vote on a policy.

-- Conflict of interest is a public interest matter.

George Kirikos (no. 30):  https://community.icann.org/download/attachments/93126760/URS-Proposal-30.pdf?api=v2 

Discussion:

-- Question: Explain mandatory mediation versus a mediation option.

-- Doesn't seem to be much of an appetite for mediation and think it should be optional.  The main issue seems to be cost.

-- Timeline -- it is supposed to be a fast process and mediation would slow that down.

-- Lack of use of mediation based on the default rate.

-- Mediation cuts both ways.

-- Good idea but there is an important issue of when does the mediation occurs.

-- Time and costs are factors.

Response:

-- Statements made in mediation would be without prejudice.

-- Don't think the default rate is an indicator as to whether people would engage in mediation.

-- Flow of process: Don't need a full complaint, just a skeleton.

-- In terms of mandatory: Forces people to think about settlement.

David McAuley (no. 31): https://community.icann.org/download/attachments/93126760/URS-Proposal-31.pdf?api=v2 

Discussion:

-- Don't support, but agree that it should be put out for public comment.

-- Question: In terms of data collection, there wasn't collection of data from registrants.

-- Which URS should become Consensus Policy -- the current URS, or that as proposed to be modified by the WG recommendations?

-- Worth putting out for public comment, but odd to talk about expanding it now.

-- Support for the proposal and helpful to put it out for public comment.

Response:

-- There was some data collection, but we are asking people to comment.

-- Whether this is a big leap that is why it is good to get public comment.

-- As to which URS, that will always be an issue.  The baseline will be the current URS, but they will see the proposals/options/questions for feedback.

-- Re: tied to the price that Verisign charges: will come back to this on the list.  Current registry agreement regarding .com may change before this PDP is completed and the cost to registries of implementing a URS decision is very low.

3.  Next Meetings: 10 Oct and 12 Oct, 1700 UTC for 120 Minutes

4. Inclusion in Initial Report: See Section 7 of the Co-Chairs Proposed Procedures

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