[council] Regarding Letter from American Intellectual Property Law Association

Ross Rader ross at tucows.com
Wed Jun 21 22:43:27 UTC 2006

Anthony Harris wrote:
> Ross,
> I think you have a valid point when you say:
> "it would extremely helpful if stakeholders limited
> themselves to speaking for themselves."
> And thus am rather surprised at your conclusion that:
> "The definition also seems to meet the needs
> of web host and ISP operators,"
> If it does, I have yet to meet one...

I would be very happy to introduce you to any number of operators that 
are unconcerned about Formulation 1 as it relates to their core 
business. Unfortunately, there aren't many (if any) of them that 
participate in ICANN's policy development process, so they are 
relatively unheard in the process. (On a slightly related not, it seems 
that the ISPCP website has been taken offline by your provider and that 
many of the associations counted as members are defunct. Presumably, 
this makes it extremely difficult for interested parties to get involved 
with the ISPCP.)

Moreover, I should also clarify that I am not pretending to speak for 
these operators. Rather, I'm passing on my observation that based on the 
conversations that I have almost daily with them about this and other 
related operational issues, that they don't seem to share the views 
espoused by those in the ISPC and other GNSO constituencies who opposed 
Formulation 1.

> As to your remark:
> "(and other related parties such as those that place a
> higher relative value on intellectual property considerations than they
> do on privacy, convenience and cost considerations such as the GNSO's
> BCUC and ISPC.)"
> This is your opinion. Not necessarily a fact.

Yes, you are correct - this is my opinion. But please don't forget that 
my opinions are mostly shaped by your position. If my interpretation of 
the position of your constituency is incorrect, I welcome the 
opportunity to learn more and form new opinions based on that. However, 
I'm not sure that it is incorrect. The ISPC is quite clear that 
unfettered whois access must be preserved in order to ensure that issues 
related to content can be resolved by network operators. Of course, IP 
issues are only a subset of content issues (which also includes 
phishing, DDOS attacks, etc.) but I'm not sure that this changes my 
basic understanding or assertion.

> Nonetheless, I beleive it an opportune occasion to point out that you
> have neglected to declare a pretty obvious fact, and that is that the
> whole content of this very prolongued (and in your personal
> case, very agressive) discussion, seeks to eliminate WHOIS
> entirely and rid you of the cost and trouble of providing it.

Speaking of opinions, I believe that we both have them ;) To the point, 
I was once asked what I thought might be the best way to deal with the 
Whois policy issue and I made the mistake of half-seriously replying 
that personally, I thought the easiest solution to the policy problem 
was to turn it off entirely. For very understandable reasons, you - and 
others - continue to quote this out of context. It has never been the 
formal policy position of Tucows or the Registrar constituency that 
Whois should be eliminated - it is of tremendous value to my company, my 
customers and the registrars I represent. The cost issue that we are 
seeking to avoid has nothing to do with the status quo solution (which 
truth be told is a non-material element in terms of our annual operating 
budget). It is a reaction to Tiered Access "solution" that some continue 
to advocate for. The technical solutions proposed are not practical, nor 
affordable. This was the main motivation behind the oPOC proposal that 
our constituency tabled, going back as far as the Mar del Plata meeting. 
We believe that by rationalizing the level of data presented in Whois 
and building in additional accountabilities, that a new focus on 
contactability can be built into Whois that provides a broad range of 
users with a "best possible compromise" solution. If this approach is 
too "aggressive" for you, I sincerely apologize.

> The task force is a vehicle to do this piece by piece, since
> you have the weighted voting advantage when it comes to that.
> This is something I can understand, and I am sure there must
> be a suitable solution for it, that can be discussed in a civil,
> cooperative atmosphere, without insulting our intelligence in
> the process.

I'm not sure that there is anything cooperative about the current task 
force or the GNSO's policy development process. Your comments, and most 
of those made in opposition to Formulation 1, perfectly illustrate the 
problem. Instead of assessing the needs of the other stakeholders as it 
relates to the needs of your constituency and identifying where 
compromise might possibly be had, the representatives of the ISPC, BCUC 
and IPC have instead focused on advocating a single, immutable position. 
This advocacy consumes most of the time available to the task force and 
is the primary reason why little progress has been made on this issue.

It is not by accident or because of weighted voting that Formulation 1 
received support necessary within the task force and at Council. The 
sole reason that this proposition was successful was because it 
represents the best middle ground that many parties with differing goals 
and needs could find. This middle ground was only found because these 
parties, the registries, noncommercials, nominating committee reps and 
registrars, actually talked to one another and worked through their 
respective differences until a consensus view was found. I believe an 
effort was made on several occassions to include the rest of the 
constituencies in this dialog, but the outreach never bore fruit.

I keep bringing this up in our calls, and I apologize if it has become 
boring for you, but we need alternatives and suggestions for compromise 
from your constituency and those of the IPC and BC - not advocacy. 
Without it, this criminal lack of progress will continue.

If you are seriously interested in making progress, then please 
reconsider the request I made of you and Marilyn on the last call: how 
can the existing proposals that have been tabled be changed so that they 
are suitable for the needs of the stakeholders you represent?




                 "Don't be too timid and squeamish about your actions.
                                            All life is an experiment.
                             The more experiments you make the better."
                         - Ralph Waldo Emerson

Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org

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