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

Tue Jan 29 17:05:39 UTC 2013

All,

We urgently need to agree on the final draft since I committed to send it in
January.

Jeff: Please can you circulate the latest draft (revised or original if no
edits have been made) you have for any final comment or input.

Thomas: Please can you remind everyone to comment or provide any input they
may have on your appendix

In preparing the final reply, I will attempt to assist with the history
component.

Thanks.

Jonathan

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Jonathan Robinson
Sent: 20 December 2012 12:54
To: council at gnso.icann.org
Subject: RE: [council] Proposed Response to the GAC regarding November 28th
Letter

In reviewing this, whilst I agree that it is insufficient to simply say that
the board told us to.  I think it may be worth noting, at least as part of
our timeline.

After all, we were formally requested by the board to provide policy advice
and a request from the board for the GNSO to undertake policy work on an
item or issue is a key basis on which we then might initiate a PDP.

I suppose that the nuance here is that we were asked for policy advice not
specifically to initiate a PDP.  

That said, in order for that policy advice to become binding on contracted
parties, an outcome I believe that the GAC desires, we need to go through
the PDP process.

Thanks,

Jonathan

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Neuman, Jeff
Sent: 06 December 2012 18:51
To: Jonathan Robinson; 'Brian Peck'; council at gnso.icann.org
Subject: RE: [council] Proposed Response to the GAC regarding November 28th
Letter

Thanks.  We did consider adding something like this to our draft letter, but
in the end decided not to.  It simply isn't enough or helpful (in our view)
to say the GNSO considered policy development activities on this because the
board told us to do so in their resolution.   After all, then it could be
argued by others that the Board acted erroneously in telling us to consider
it in the first place.

We wanted in a respectful way to point out that this does in fact involve
policy, and we are the appropriate body to consider the policy issues,
whether the Board tells us to or not. 

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: Thursday, December 06, 2012 1:42 PM
To: 'Brian Peck'; council at gnso.icann.org
Subject: RE: [council] Proposed Response to the GAC regarding November 28th
Letter

Many thanks Brian.  That's helpful.  Jonathan

From: Brian Peck [mailto:brian.peck at icann.org] 
Sent: 06 December 2012 17:15
To: Jonathan Robinson; 'Neuman, Jeff'; council at gnso.icann.org
Subject: Re: [council] Proposed Response to the GAC regarding November 28th
Letter

Jonathan,

In response to your question in relation to responding to the GAC on the
issue of what was the impetus for the Council to take up the work on the IGO
name protection issue, it may be helpful to note as background that the
Board in its 11 March 2012 letter formally asked both the GAC and the GNSO
Council for policy advice on the protection of IGO names:  

http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van-
gelder-11mar12-en.pdf 

In addition, some of the other considerations taken into account for the
Council requesting the Issues Report on the protection of International
Organization names to include IGO names - including requests from IGOs to
obtain the same level of of any protections provided to the RCRC and IOC,
are noted in the motion adopted to request the Issues Report:  

http://gnso.icann.org/en/meetings/minutes-council-12apr12-en.htm

Thanks.

Best Regards,

Brian 

On 12/6/12 3:08 AM, "Jonathan Robinson" <jonathan.robinson at ipracon.com>
wrote:

Jeff,

Many thanks to you and your colleagues for such a considered and
comprehensive first draft.  I had thought about trying to draw out key
principles from discussion on the list and then drafting.
This approach takes it a step further and faster.  Great.

Rather than collectively editing the text at this point, I suggest that
councillors respond along the following lines:

1.       Is the approach taken below one which you broadly do or do not
support?

2.       If yes to 1 above, please indicate if there are any additional
areas not covered or areas that could be improved?

3.       If no to 1 above, please explain why and how you suggest we
approach this differently?

4.       Are there any other substantive points not already covered in the
letter and not covered in your responses to 1-3 above?

I trust this will provide a structure for input before we go into a final
drafting mode.  Once we have been through this iteration, we can work on an
approach which tweaks the final text.

One overall question I have relates to the question posed by the GAC and
implicit in our (draft) response to it below.  Both seem to suggest (or
presume) we have chosen as a Council to undertake this policy work.  Is this
actually the case (i.e. did we independently determine to undertake this
work) or does the history indicate that we are in fact responding to a
request from board (or elsewhere)?  Mason helpfully provided sketched series
of events on Friday last week but it is not 100% clear where the primary
impetus for the GNSO undertaking this policy work came from?  In any event,
but along these lines, is it helpful or provocative to provide a sketch
timeline of the key steps in this long process? As an appendix to the letter
perhaps?

Thank-you again Jeff and please indicate whether or not you are willing to /
would like to continue to hold the pen on this?

Jonathan

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Neuman, Jeff
Sent: 05 December 2012 22:42
To: council at gnso.icann.org
Subject: [council] Proposed Response to the GAC regarding November 28th
Letter

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 <mailto:jeff.neuman at neustar.biz>   / www.neustar.biz
<http://www.neustar.biz/>  

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/council/attachments/20130129/a00f34c3/attachment.html>