[council] Proposed Response to the GAC regarding November 28th Letter

Wed Dec 12 18:54:52 UTC 2012

I support a letter from council to the GAC communicating our understandings.  I agree it should include the timeline with references to the events in the timeline where council either elected or was asked to take action.  

I also support pointing out the contradictory information from the GAC.  NOT as a way to try to pin them down or embarrass them but to help explain some of the confusing circumstances we all find ourselves now in.

On Dec 12, 2012, at 1:06 AM, Jonathan Robinson wrote:

> Berry,
>  
> Thank-you.  That is very helpful. 
>  
> It seems to me that a link to this page may suffice.  If we re-write, we risk creating an inconsistency between the two.
> I suggest that we therefore:
>  
> a.       Check your version and provide any comment or input on it
> b.      Refer to it and provide a link in our / my reply to the GAC.
> 
> Jonathan
>  
> From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Berry Cobb
> Sent: 11 December 2012 16:59
> To: 'Jonathan Robinson'; 'Neuman, Jeff'; council at gnso.icann.org
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter
>  
> As an FYI,
>  
> On the GNSO website, there is a page dedicated to IOC/RCRC DT.  It contains a chronological order of key events/milestones from the DT.  It will probably be a good reference to documenting the past, if not just only include a link to the page.
>  
> http://gnso.icann.org/en/group-activities/red-cross-ioc.htm
>  
> If you happen to see anything that I may have missed, please send me an email off-list, and I will be happy to update the page accordingly.
>  
> Thank you.  B
>  
> Berry Cobb
> Internet Corporation for Assigned Names & Numbers (ICANN)
> 720.839.5735
> mail at berrycobb.com
> @berrycobb
>  
>  
> From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Jonathan Robinson
> Sent: Tuesday, December 11, 2012 09:46
> To: 'Neuman, Jeff'; council at gnso.icann.org
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter
>  
> Thanks Jeff,
>  
> History – Concise summary of key dates and events (picking up from Mason’s previous work).  Any volunteers?
>  
> I do not believe a motion is required.  We seem to be moving towards consensus on the substantial points on list.
> I’d like to work with you on refining the text (since my name will be on it!) but that will be about minor details AOT substance.
>  
> Jonathan
>  
> From: Neuman, Jeff [mailto:Jeff.Neuman at neustar.us] 
> Sent: 11 December 2012 15:13
> To: Jonathan Robinson; council at gnso.icann.org
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter
>  
> All,
>  
> I am fine with having the history in an appendix if someone can draft that up.  With respect to the “misunderstanding” language, I am also fine with removing that language as well.
>  
> Jonathan, are we going to need a motion to approve the letter? I don’t believe we do.  But, if we do, then we need to draft it by tomorrow to get it on the agenda, right?
>  
>  
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 
>  
> From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Jonathan Robinson
> Sent: Tuesday, December 11, 2012 6:45 AM
> To: council at gnso.icann.org
> Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter
>  
> All,
>  
> Good contributions from various Councillors.  Great to see.  Thanks all for getting fully engaged with this important issue.
>  
> My reading is that we now have to resolve a couple of substantial points before fine-tuning the draft.  I believe that the points are as follows:
>  
> 1.       Do we include the history?  If so where?  I think I am in favour but as a factual summary of key points in an appendix / second page.
> The motivation is to put it on record and as background or context for this reply.  I suspect that many (including in the GAC) will read this exchange in isolation and not have a good grasp on the history.
> 2.       Policy v Implementation?  Agree with Thomas that we should state our view politely and clearly but not suggest that we may not understand accurately.  
> Perhaps here an invitation to the GAC to provide their view by contributing it to any future work (working group) that looks into this?
> Here I should note that I suspect that the GAC feels that it is able to participate and contribute, but not necessarily at the WG level in the same way as many of us do.
>  
> Please feel free to support 1 & 2 above or disagree / re-iterate your view.  Also, please comment if I have missed any substantial points. 
> Thereafter, I think we should proceed to fine-tuning the draft.
>  
> Jonathan
>  
>  
> From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Thomas Rickert
> Sent: 11 December 2012 09:41
> To: David Cake
> Cc: council at gnso.icann.org
> Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter
>  
> David and Mason,
> your point regarding the GAC is well understood. I will not try to convince you of my proposal, but let me explain that I made the proposal since I would very much like to hear the GAC's view on this. That does not mean that this view is going to be adopted by us. Also, getting input on the GAC's understanding of the demarkation of policy vs implementation helps us understand the GAC better and maybe respond to that to improve the working relationshipo. 
>  
> Anyway, even if the group wishes not to ask the GAC for its view, please amend the language so it does not say that we might misunderstand something. I think we should not populate the idea that we might be wrong as I truly believe that this is not the case.
>  
> Thomas
>  
>  
>  
> Am 11.12.2012 um 08:27 schrieb David Cake <dave at difference.com.au>:
>  
> 
> I admire the very non-confrontational yet clear tone of the letter - I don't think I'd be able to manage that tone on this issue. Thank you Jeff. 
>  
> I'm fine with the descriptions of the specific issue here, clearly setting out that there are numerous specific issues not addressed in the GACs advice etc. 
>  
> Like Mason, I'm not sure we should ask the GAC for its determination of policy vs implementation, for a wide range of reasons. As Mason points out, a decision being 'implementation' isn't necessarily grounds for excluding policy making structures such as the GNSO from decision making. 
>  
> Regards
>  
>             David
>  
>  
>  
> On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote:
>  
> 
> All,
>  
> In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations.  Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on.  
> 
> This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike).  We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues.  
> 
> Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response.
> 
> Thanks!
>  
>  
> +++++++++++++++++++++++++++++++++++++++
>  
> Dear Madam Chair:
>  
> I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO’s determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations “in all gTLDs.” 
>  
> We are not aware of a bright line test to distinguish “policy” from “implementation” in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN’s multi-stakeholder processes.  For purposes of responding to your letter, however, the term “policy development” has traditionally applied to ICANN’s consideration of an issue that is within the scope of ICANN’s mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy.   The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations (“IGO’s”) and international non-governmental organizations (“INGO’s”) at the top and second level meets the criteria described above. 
>  
> We do not dispute the validity of the GAC’s advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee (“IOC”) and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC.   We note, however, that most such laws – like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things.  (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.)  In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context – particularly at the second level and in both new and existing TLDs. 
>  
> Likewise, we do not dispute the validity of the GAC’s advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms.  We also appreciate your point that this advice is “complementary” to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application.  We do not understand, however, how a prohibition of even non-infringing uses of an IGO’s acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant’s potential use of the applied-for gTLD would be likely to infringe the objector’s existing IGO name or acronym.  The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time – including quite recently. 
>  
> The GNSO believes that the issues identified above fall within the definition of “policy” used by ICANN.  We understand, of course, that the policy development process can be time consuming.  We also understand that some may view resort to policy development as a delaying or blocking tactic.  With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions.  That approach is reflected in the ICANN Board’s recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. 
> Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point.  Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. 
>  
>  
>  
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 46000 Center Oak Plaza, Sterling, VA 20166
> Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / jeff.neuman at neustar.biz  / www.neustar.biz
>  
>  
> ___________________________________________________________
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> Schollmeyer &  Rickert Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm)
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