[GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Wed Sep 2 23:51:56 UTC 2020

Copying in the full WG so that they can have the benefit of this exchange.
___________

Hi Phil.  Responding now to your second message (or was it first?).  Comment in line in [brackets].

Speaking now as a co-chair:

*If the small group believes this is a final version ready for full WG consideration, the next step would be to have that discussion and see if it satisfies the same criteria to become a WG recommendation that was applied for the Initial Report (we are long past the point for further Final Report consideration/inclusion of proposals from individuals, or even groups of individuals)

[Thanks Phil.  Unfortunately, because the deadline of this Friday was not disclosed on the last call and only came out today when Staff mentioned it, the co-chairs (assuming you are speaking for the other two - it's not clear) seem to have put us in a pickle where there is not time to take a roll call of the small group prior to tomorrow's call.  But for reasons noted below, I don't think that is an issue.  What can be said is that what I sent around today is the result of a small group call, a WG call, and two days on the list.  All of the comments were helpful improvements and there weren't many comments.  To now suggest the proposal might not be considered is quite the surprise!  Importantly, I don't know of any written rules or procedures for small groups that require some sort of small group vote before something comes back to the full WG for discussion.  Where can I find that?  Surely if such a rule existed the time for that to happen was prior to our last call when this was discussed by the full WG (however briefly due to your intervention asking that it be given only a small amount of time) and proposed changes were made as a result.  Even if such a rule exists, and again I can't find it in the GNSO Operating Procedures, surely the ship has sailed on it.  Instead of finding ways to block further consideration of work products discussed in small group, in the full WG, and on the list for days, let's find a way to have the WG look over what was done here and get to a conclusion.]

*If the proposal receives the requisite level of support vs. opposition to be considered a WG recommendation, the co-chairs will discuss and determine, in consultation with support staff, whether it should be put out for 21 days public comment under the standards contained in the GNSO WG Guidelines

[Great news!  This comment makes me believe that you will in fact give this the air time it needs tomorrow.]

I believe that is the correct procedure, but I'm sure that staff will chime in if it's not.

[I'm not sure if this comment refers only to the last bullet, if so I agree.  If it refers to both bullets, I don't fully agree for the reasons noted above.]

I would also note that it is possible that when the co-chairs and liaison confer with staff for our next planning meeting scheduled on the morning of Wednesday, September 9, we may opt to submit a short-term (likely 30 day) Project Change Request to Council regardless of what happens with this PDDRP proposal. Staff has already alerted us to concern that any unexpected delay in the Final Report review or Consensus Call last steps could make it impossible to meet our current deadline, and submission of a PCR by September 14th is our last opportunity to make the request as a safety measure.

[Thanks for letting us know this.  Sounds like a short extension is needed.]

Rest assured that the co-chairs are all dedicated to the proposition that the Final Report will be delivered to Council prior to Thanksgiving (which, for non-US members, is November 26th).

[I will miss the calls and email, but a quiet Thanksgiving, especially after all that 2020 has turned out to be, sounds lovely.]

Best,
Paul

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-----Original Message-----
From: Corwin, Philip <pcorwin at verisign.com>
Sent: Wednesday, September 2, 2020 5:23 PM
To: julie.hedlund at icann.org; McGrady, Paul D. <PMcGrady at taftlaw.com>; brian.beckham at wipo.int; McAuley, David <dmcauley at Verisign.com>; zak at muscovitch.com; gregshatanipc at gmail.com
Cc: ariel.liang at icann.org; kathy at dnrc.tech; mary.wong at icann.org
Subject: RE: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Speaking now as a co-chair:

*If the small group believes this is a final version ready for full WG consideration, the next step would be to have that discussion and see if it satisfies the same criteria to become a WG recommendation that was applied for the Initial Report (we are long past the point for further Final Report consideration/inclusion of proposals from individuals, or even groups of individuals)
*If the proposal receives the requisite level of support vs. opposition to be considered a WG recommendation, the co-chairs will discuss and determine, in consultation with support staff, whether it should be put out for 21 days public comment under the standards contained in the GNSO WG Guidelines

I believe that is the correct procedure, but I'm sure that staff will chime in if it's not.

I would also note that it is possible that when the co-chairs and liaison confer with staff for our next planning meeting scheduled on the morning of Wednesday, September 9, we may opt to submit a short-term (likely 30 day) Project Change Request to Council regardless of what happens with this PDDRP proposal. Staff has already alerted us to concern that any unexpected delay in the Final Report review or Consensus Call last steps could make it impossible to meet our current deadline, and submission of a PCR by September 14th is our last opportunity to make the request as a safety measure.

Rest assured that the co-chairs are all dedicated to the proposition that the Final Report will be delivered to Council prior to Thanksgiving (which, for non-US members, is November 26th).

Best,

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

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

From: Julie Hedlund <julie.hedlund at icann.org>
Sent: Wednesday, September 02, 2020 5:54 PM
To: McGrady, Paul D. <PMcGrady at taftlaw.com>; BECKHAM Brian <brian.beckham at wipo.int>; McAuley, David <dmcauley at Verisign.com>; Zak Muscovitch <zak at muscovitch.com>; Greg Shatan <gregshatanipc at gmail.com>
Cc: Ariel Liang <ariel.liang at icann.org>; kathy at dnrc.tech; Corwin, Philip <pcorwin at verisign.com>; Mary Wong <mary.wong at icann.org>
Subject: [EXTERNAL] Re: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Many thanks Paul for your very helpful suggested approach!

Kind regards,

Julie

From: "McGrady, Paul D." <PMcGrady at taftlaw.com>
Date: Wednesday, September 2, 2020 at 5:47 PM
To: Julie Hedlund <julie.hedlund at icann.org>, BECKHAM Brian <brian.beckham at wipo.int>, "McAuley, David" <dmcauley at Verisign.com>, Zak Muscovitch <zak at muscovitch.com>, Greg Shatan <gregshatanipc at gmail.com>
Cc: Ariel Liang <ariel.liang at icann.org>, "kathy at dnrc.tech" <kathy at dnrc.tech>, "Corwin, Philip" <pcorwin at verisign.com>, Mary Wong <mary.wong at icann.org>
Subject: RE: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Thanks Julie.  Good to know that now, although now it is quite difficult to try to reconvene with short notice on a holiday weekend.  Even so, since the only change that was made from the call was the addition of the work "significantly" before where "higher" appears, and since Marc introduced language to deal with the question of whether or not registries sell domain names ("or otherwise making available for registration"), and since we don't really have time to reconvene the small group, I suggest we simply put this back on the agenda for tomorrow's call. Small group members can either support it or not on the call as can working group members.  Ultimately, the small group can't dictate an outcome either way, so missing a deadline to discuss the very reasonable addition of "significantly" and seems like process over substance.  Toward that end, attached is the latest version for discussion tomorrow.

Thanks!

Best,

Paul

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From: Julie Hedlund <julie.hedlund at icann.org>
Sent: Wednesday, September 2, 2020 4:27 PM
To: McGrady, Paul D. <PMcGrady at taftlaw.com>; BECKHAM Brian <brian.beckham at wipo.int>; McAuley, David <dmcauley at Verisign.com>; Zak Muscovitch <zak at muscovitch.com>; Greg Shatan <gregshatanipc at gmail.com>
Cc: Ariel Liang <ariel.liang at icann.org>; kathy at dnrc.tech; Corwin, Philip <pcorwin at verisign.com>; Mary Wong <mary.wong at icann.org>
Subject: Re: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hi Paul,

The Co-Chairs are meeting next Wednesday morning to review the Work Plan and a Project Change Request (PCR), if needed.  They wouldn't likely be able to make a decision on whether to include a new Public Comment Period until the WG has decided what to do with the final language from the Small Team.  The PCR must be filed by the Document and Motion deadline of Monday, 14 Sept, so it has to be finalized next week, the earlier the better. So, unfortunately there really isn't much time.  I hope that's more explanation for why we'd need to get this done on Friday in order to have it in front of the WG on Tuesday.

Kind regards,

Julie

From: "McGrady, Paul D." <PMcGrady at taftlaw.com>
Date: Wednesday, September 2, 2020 at 5:22 PM
To: Julie Hedlund <julie.hedlund at icann.org>, BECKHAM Brian <brian.beckham at wipo.int>, "McAuley, David" <dmcauley at Verisign.com>, Zak Muscovitch <zak at muscovitch.com>, Greg Shatan <gregshatanipc at gmail.com>
Cc: Ariel Liang <ariel.liang at icann.org>, "kathy at dnrc.tech" <kathy at dnrc.tech>, "Corwin, Philip" <pcorwin at verisign.com>, Mary Wong <mary.wong at icann.org>
Subject: RE: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Thanks Julie.  I don't think we need to cram this in on Friday.  If the co-chairs reach a decision that it needs to go out for public comment then we will need a change request no matter what.  If the co-chairs decide that it does not need to go out for public comment, we have plenty of time.  So, I think we should try to schedule this for next week after the holiday when people are more likely to be back at their desks, especially David M. who has been very helpful getting this refined.

Best,

Paul

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This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

From: Julie Hedlund <julie.hedlund at icann.org>
Sent: Wednesday, September 2, 2020 4:16 PM
To: McGrady, Paul D. <PMcGrady at taftlaw.com>; BECKHAM Brian <brian.beckham at wipo.int>; McAuley, David <dmcauley at Verisign.com>; Zak Muscovitch <zak at muscovitch.com>; Greg Shatan <gregshatanipc at gmail.com>
Cc: Ariel Liang <ariel.liang at icann.org>; kathy at dnrc.tech; Corwin, Philip <pcorwin at verisign.com>; Mary Wong <mary.wong at icann.org>
Subject: Re: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hi Paul,

It looks like our emails crossed and I see that you've requested a Doodle for a meeting via a separate email.  If we are to get this item on the agenda for next Tuesday, and considering that next Monday is a holiday in the US, we'd need to aim for this Friday to give people time to plan.  We can do a Doodle for a few times Friday morning.

Thanks!

Julie

From: Julie Hedlund <julie.hedlund at icann.org>
Date: Wednesday, September 2, 2020 at 5:10 PM
To: "McGrady, Paul D." <PMcGrady at taftlaw.com>, BECKHAM Brian <brian.beckham at wipo.int>, "McAuley, David" <dmcauley at Verisign.com>, Zak Muscovitch <zak at muscovitch.com>, Greg Shatan <gregshatanipc at gmail.com>
Cc: Ariel Liang <ariel.liang at icann.org>, "kathy at dnrc.tech" <kathy at dnrc.tech>, "Corwin, Philip" <pcorwin at verisign.com>, Mary Wong <mary.wong at icann.org>
Subject: Re: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hi Paul,

In light of the discussion on the list, do you plan to produce a new slightly revised version for the Small Team to review?  Also, does the Small Team envision needing a meeting, or can the revision be addressed on the list?

Staff also put a placeholder in the agenda for an update on this item for tomorrow's call.  If there's nothing new to report (revisions ongoing) then that could simply be noted.  But we probably should anticipate putting it on the agenda for WG discussion no later than next Tuesday's call, because if the WG sticks to its work plan it will begin to review Final Recommendations next Thursday, 10 September (if not sooner).

Thanks!

With kind regards,

Mary, Ariel, and Julie

From: "McGrady, Paul D." <PMcGrady at taftlaw.com>
Date: Monday, August 31, 2020 at 9:40 PM
To: BECKHAM Brian <brian.beckham at wipo.int>, "McAuley, David" <dmcauley at Verisign.com>, Zak Muscovitch <zak at muscovitch.com>, Greg Shatan <gregshatanipc at gmail.com>
Cc: Ariel Liang <ariel.liang at icann.org>, Julie Hedlund <julie.hedlund at icann.org>, "kathy at dnrc.tech" <kathy at dnrc.tech>, "Corwin, Philip" <pcorwin at verisign.com>, Mary Wong <mary.wong at icann.org>
Subject: RE: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hi Small Group 2!

As discussed, attached is the mark up to the relevant sections of the TM-PDDRP taking the minimalist approach we kicked around on the call.  I look forward to your comments back!

Best,

Paul

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This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

From: BECKHAM Brian <brian.beckham at wipo.int>
Sent: Monday, August 31, 2020 11:20 AM
To: Mary Wong <mary.wong at icann.org>; McAuley, David <dmcauley at Verisign.com>; McGrady, Paul D. <PMcGrady at taftlaw.com>; Corwin, Philip <pcorwin at verisign.com>
Cc: Ariel Liang <ariel.liang at icann.org>; Julie Hedlund <julie.hedlund at icann.org>; kathy at dnrc.tech
Subject: RE: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

PS, do consider me a volunteer / observer.

From: Mary Wong <mary.wong at icann.org>
Sent: Monday, August 31, 2020 6:18 PM
To: BECKHAM Brian <brian.beckham at wipo.int>; McAuley, David <dmcauley at Verisign.com>; 'PMcGrady at taftlaw.com' <PMcGrady at taftlaw.com>; Corwin, Philip <pcorwin at verisign.com>
Cc: Ariel Liang <ariel.liang at icann.org>; Julie Hedlund <julie.hedlund at icann.org>; kathy at dnrc.tech
Subject: Re: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hi Brian and everyone,

I think the calendar invitation went only to the small team volunteers, so that they can work out amongst themselves what they wish to recommend to the Working Group. I've forwarded you the details for the call that's going on now, in case you wish to join.

Cheers

Mary

From: BECKHAM Brian <brian.beckham at wipo.int>
Date: Monday, August 31, 2020 at 12:16
To: "McAuley, David" <dmcauley at Verisign.com>, "'PMcGrady at taftlaw.com'" <PMcGrady at taftlaw.com>, "Corwin, Philip" <pcorwin at verisign.com>, Mary Wong <mary.wong at icann.org>
Cc: Ariel Liang <ariel.liang at icann.org>, Julie Hedlund <julie.hedlund at icann.org>, "kathy at dnrc.tech" <kathy at dnrc.tech>
Subject: RE: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hi all,

Did I miss the invite (and doodle) for this call today?

Brian

From: GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> On Behalf Of McAuley, David via GNSO-RPM-WG
Sent: Saturday, August 29, 2020 1:09 PM
To: 'PMcGrady at taftlaw.com' <PMcGrady at taftlaw.com>; Corwin, Philip <pcorwin at verisign.com>; 'mary.wong at icann.org' <mary.wong at icann.org>; 'gnso-rpm-wg at icann.org' <gnso-rpm-wg at icann.org>
Subject: Re: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hi Paul, and all,

I am away on vacation and my replies will be delayed but I will be on the call Monday assuming wifi connection remains fine - so far, so good.

I attempted to draft some new language but felt that it would not be helpful - I remain opposed to the new TM-PDDRP proposal for the reasons I mentioned when we discussed this but will endeavor to help with drafting if we can reach suitable compromise.

But I also remain of the view that if anything like the proposal is submitted to the WG and the WG wants to adopt it then it must go for public comment. Sunrise Rec #2 would affect only future new gTLDs via a provision in their RA - a matter they would address with ICANN Compliance, not in a formal DRP.

The proposal we are considering is a new cause of action under a DRP, it materially changes the present TM-PDDRP standard (section 6.2 Second Level),and it affects all gTLDs.

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154

From: GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> On Behalf Of McGrady, Paul D.
Sent: Friday, August 28, 2020 2:52 PM
To: Corwin, Philip <pcorwin at verisign.com>; mary.wong at icann.org; gnso-rpm-wg at icann.org
Subject: [EXTERNAL] Re: [GNSO-RPM-WG] [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Thanks Mary.  Thanks Phil.

We will, of course, get back to the main WG as quickly as possible.  However, I think we may be jumping to the conclusion that the proposed amendments to the TM-PDDRP that are designed to prevent circumventing the mandatory RPMs imposed by ICANN or restricting brand owners' reasonable use of the Sunrise rights protection mechanism would need to be put out to public comment.  The WG has already settled on Sunrise Recommendation #2 which is essentially the same idea:

"Sunrise Recommendation #2 The Working Group recommends that the Registry Agreement for future new gTLDs includes a provision stating that a Registry Operator shall not operate its TLD in such a way as to have the effect of circumventing the mandatory RPMs imposed by ICANN or restricting brand owners' reasonable use of the Sunrise rights protection mechanism."

Also, the idea of improvements to the TM-PDDRP came directly from public comment.  I hope this helps with any angst over the timeline.  Thanks!

Best,

Paul

To receive regular COVID-19 updates from Taft, subscribe here [taftlaw.com]. For additional resources, visit Taft's COVID-19 Resource Toolkit [taftlaw.com].

This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

From: Corwin, Philip <pcorwin at verisign.com>
Sent: Friday, August 28, 2020 10:52 AM
To: mary.wong at icann.org; McGrady, Paul D. <PMcGrady at taftlaw.com>; gnso-rpm-wg at icann.org
Cc: brian.beckham at wipo.int; kathy at kathykleiman.com
Subject: RE: [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Thanks Mary. That is pretty much the language I quoted, plus confirmation of the 21-day minimum comment period.

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

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

From: Mary Wong <mary.wong at icann.org>
Sent: Friday, August 28, 2020 11:45 AM
To: Corwin, Philip <pcorwin at verisign.com>; PMcGrady at taftlaw.com; gnso-rpm-wg at icann.org
Cc: brian.beckham at wipo.int; kathy at kathykleiman.com
Subject: [EXTERNAL] Re: [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Hello Paul, Phil and all - the Doodle polls were sent out yesterday but we realize that it went to Paul's old email address. The GNSO Secretariat has just re-sent the polls to Paul at his updated email address.

With regard to a public comment proceeding, here is the relevant language from the GNSO's PDP Manual that was the basis for my previous guidance (noted by Phil): "In addition to any required public comment periods, the PDP Team may seek public comment on any item that the PDP Team notes it will benefit from further public input. The PDP Team does not have to seek approval from the GNSO Council to seek public comment on interim items. The minimum duration of a public comment period that does not concern the Initial Report is twenty (21) days."

I hope that is helpful.

Cheers

Mary

From: "Corwin, Philip" <pcorwin at verisign.com>
Date: Friday, August 28, 2020 at 11:09
To: "PMcGrady at taftlaw.com" <PMcGrady at taftlaw.com>, "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
Cc: "brian.beckham at wipo.int" <brian.beckham at wipo.int>, "kathy at kathykleiman.com" <kathy at kathykleiman.com>, Mary Wong <mary.wong at icann.org>
Subject: [Ext] RE: Small Group for proposed amendments to TM-PDDRP

Paul,

Thanks for staying on top of this. We do need that small group to bring something back to the full WG ASAP so that if the co-chairs decide it needs public comment we can hopefully close that 21-day period by the end of September and not have to submit another Project Change Request (ugh).

Back in late July, Mary told us, "a PDP Working Group also has the ability to post interim items for public comment that it believes "will benefit from further public input" - this may be an option where there is a need to resolve specific, concrete items during deliberations on a Final Report. You will therefore not need to wait for there to be a full draft report to exercise this option (though staff advises that any such items should be consolidated and posted as a single public comment proceeding and not on a piecemeal basis)." My own view would be that we should seek public comment where we have a substantially new proposal that could have a material effect on the community or portions thereof.

Very best,

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

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

From: McGrady, Paul D. <PMcGrady at taftlaw.com>
Sent: Friday, August 28, 2020 10:43 AM
To: gnso-rpm-wg at icann.org
Cc: Corwin, Philip <pcorwin at verisign.com>; Brian Beckham <brian.beckham at wipo.int>; Kathy Kleiman <kathy at kathykleiman.com>; Mary Wong <mary.wong at icann.org>
Subject: [EXTERNAL] Small Group for proposed amendments to TM-PDDRP

Hi Staff,

I've not seen a doodle go out on getting this small group together.  I don't think merely trying to work this out on the list is what we need.  Can you please send out a doodle and try to get us together as early as possible next week so that we don't have to ask the co-chairs for an extension on our report date?  Thanks much!

Best,

Paul

Taft /

Paul D. McGrady / Partner
Taft Stettinius & Hollister LLP
111 E. Wacker Drive, Suite 2800
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Direct: 312.836.4094 * Cell: 312.882.5020 www.taftlaw.com [secure-web.cisco.com] / PMcGrady at taftlaw.com

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