[GNSO-RPM-WG] Actions: RPM PDP WG Meeting 18 December 2019

[Julie Hedlund]

Dear All,

Please see below the action items captured by staff from the RPM PDP Working Group call held on 18 December 2019 at 17:00 UTC.  Staff will post these to the wiki space.  Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, Zoom chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2019-12-18+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG.

Best Regards,
Julie
Julie Hedlund, Policy Director

==

NOTES & ACTION ITEMS

Actions:

#27: -- ACTION: Look at the Sub Team recommendation and check with Zak to see if it’s already covered.
Sub Team Recommendations:
“The WG recommends that public comment be sought on the following questions:
- What compliance issues have Registries and Registrars discovered in URS processes, if any? 
- Do you have suggestions for how to enhance compliance of URS Providers, Registries, and Registrars in the URS process?  The WG recommends that the ICANN Org establishes a compliance mechanism to ensure that URS Providers, Registries, and Registrars operate in accordance with the URS rules and requirements and fulfill their role and obligations in the URS process.”

Notes:

1.  Updates to Statements of Interest:  No updates provided.

2. Discussion of Individual URS Proposals: 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16.  See all proposals at: https://community.icann.org/x/aACNBQ

#11:
From 11 December meeting:
-- Get comment on other possible numbers (3-15, not just on 3).
-- Although in general 3 is sufficient to demonstrate a pattern, agree to asking for Public Comment on the appropriate number to demonstrate a pattern.
-- Noting the comment on commercial plans, agree to increasing this to 5 -- but getting input on the number appropriate
-- Maintain the proposed language and reduction to 3.
-- Continue discussion at the next meeting and on the other proposals.
From 18 December meeting:
-- Don’t support putting it out as it stands.  Verification is not defined and no idea how idea how you figure out if someone is a registrant.  3 also is really low.
-- We are here to address as to whether there is support to put the proposal out for public comment, not asking for substantive comments on the proposal.
-- Don’t believe there is additional delay through this proposal, but a part of the process.
-- The "confirmation" part is the problem that extends the URS, which for other proposals is a reason not to support them.
-- At the Forum the response fee for 15-50 domains = $400. URS is a very low cost and as a result has very few safeguards and the 3 proposal is very low, so low that it could be used to deter genuine use.
-- The number was a question that had been included in being put out for comment
 -- Support putting this out as 2-part question: should threshold be reduced & input on #.  But will need context.

-- Seems to be sufficient support for publication, with some opposition.  Offer as a two-part open-ended question.



#18:
-- Addresses a situation that has actually taken place.
-- One member opposes public comment.
-- One member supports public comment with a menu of proposals (with #19 and #20).
-- Note that UDRP is out of scope for the Phase One Initial Report, so don’t support publication.
-- For those who don’t support publication there is some support for #20.
-- Confusing because of the conflation with the UDRP.  The problem that was encountered wasn’t a URS problem because in the URS you have an appeals path.
-- Don’t think this is clearly enough explained to recommend going out for public comment.
-- We can’t solve for bad complaint-drafting by someone seeking civil litigation to address a URS decision.
-- That's why this proposal is to set aside the decision: it ensures that there is a case or controversy regardless of the local law about arbitration/potential tortious interference w/business or other grounds.
-- On the contrary, as you know unless there is an ACPA or similar claim, the use of a domain name does not give rise to trademark claims.  Precisely why the UDRP/URS ADR procedures were adopted.
-- That is not an accurate description of US law--plenty of 32 and 43(a) claims about domain names exist and existed.  Not aware of any jurisdiction that declines to evaluate domain names under ordinary TM law even if there are also additional rules but maybe you can provide examples.
-- #18 – The URS is complicated enough without bringing this framework from British Columbia; #19 – 38% support for publication, there is enough of an issue to consider putting it out for public comment; #20 – very low support combined.  Not worth publication.
-- Do not believe Proposals 18, 19, or 20 should be presented for public comment as having substantial opposition and minimal support.
-- Some support for #19 and #20.

#19:
-- Some support for 19 in the chat.
-- 4 of 5 comments supported, but that is not representative of the 65% that did not support.
-- Moved past an issue to a remedy without showing that the issue exists.
-- Oppose 18, 19 and 20.  These are not workable or appropriate proposals.
-- Support publishing to get thoughts on whether there are alternative ways to deal with the problem.
-- What are the grounds for vitiation?  Taking a term out of context.
-- Point would be not that the decision would be set aside – but the complainant and respondent would be in the same position as though the URS did not exist.
-- But the proposal says “set aside” and offers no alternative route.
-- This is a proposal to dismantle URS and UDRP – we are here to revise them, not dismantle them.
-- I along with a substantial minority (bearing in mind the make-up of the survey participants) support it going out for publication and haven't completely made up my mind whether I support it in substance or not.
-- It says if a court finds no cause of action - i.e. the person appealing the URS decision has filed claims with a court and the court has ruled that there is no cause of action - then the URS decision is set aside... it does not suggest any other route to reaching a substantive decision regarding the disposition of the domain name... and as Paul M said it would seem to basically undermine the entire URS process

#20:
-- Very misguided and dangerous proposal.  US courts are under no compulsion to follow it.
-- Not sure if it is even possible.

#27:
-- Support for publication.
-- Is this already addressed by Sub Team URS recommendations?  Is this really needed.
-- Already covered by the existing URS rules.
-- Distinction from the current rules is to keep the Curriculum Vitae current.
-- ACTION: Look at the Sub Team recommendation and check with Zak to see if it’s already covered.
Sub Team Recommendations:
“The WG recommends that public comment be sought on the following questions:
- What compliance issues have Registries and Registrars discovered in URS processes, if any? 
- Do you have suggestions for how to enhance compliance of URS Providers, Registries, and Registrars in the URS process?  The WG recommends that the ICANN Org establishes a compliance mechanism to ensure that URS Providers, Registries, and Registrars operate in accordance with the URS rules and requirements and fulfill their role and obligations in the URS process.”

#32:
-- Not substantial support for publication.
-- If it can’t become consensus then don’t publish?
-- Is this related to David McCauley’s proposal?  Could they be combined? From David: Subtle distinction: the proposal under #31 was made on behalf of Verisign – a proposal to seek public comment on whether the URS should be made consensus policy (not that we are suggesting that it be consensus policy).
-- 32 really consists of two proposals: (1) eliminate URS; (2) URS should not be consensus policy applicable to legacy gTLDs
-- We are not chartered to dismantle RPMs: "In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified."
-- Outside the scope of the charter.
-- Seems to be putting the question in the form of an answer.  That the proposal is to eliminate it.
-- Okay to raise the question (as in #31) as to whether the URS should be consensus policy.
-- Seems to be support to not publish it.

#36:
-- Between the URS procedures section 6 on default and section 12 on appeals --- where a respondent doesn’t reply in case of a default there can be as many as 3 de novo appeals.  Under 6.4 they have up to a year for a de novo review and in section 12 there is another de novo review.  Asking if we should limit to one de novo review.
-- Trying to streamline areas that are duplicative.
-- Support from several members to put out for public comment.
-- Doesn’t seem to be evidence based.
-- There has been no use of the duplicative repeated de novo processes afforded under the URS. So yes, this proposal is based on the evidence of lack of use.
-- Significant change from URS rules.  If we put it out for comment we should provide the context in the current rules.
-- Question: Is the standard here that we put the language as written out?  Can commenters make wordsmithing changes?
-- This was not a sub team proposal, but was supported by a number of individuals.
-- The outcome sub team discussion of the de novo review, per the table, is: “NOTE: There is no WG recommendation at this time. The Documents Sub Team recommends that the full RPM Working Group assesses Individual Proposals #8 and #36 and determine whether any of them can rise to the level of Working Group recommendation.”
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