[council] potential annex to Jeff's draft letter

[Winterfeldt, Brian]

Dear Volker:

Thank you for these thoughts.  Here are some quick responses in line with your email below.

Best regards,

Brian

Brian J. Winterfeldt
Partner
bwinterfeldt at steptoe.com<mailto:bwinterfeldt at steptoe.com>
Steptoe

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From: Volker Greimann[SMTP:VGREIMANN at KEY-SYSTEMS.NET]
Sent: Wednesday, January 30, 2013 4:02:52 AM
To: Winterfeldt, Brian
Cc: council at gnso.icann.org<mailto:council at gnso.icann.org>
Subject: Re: [council] potential annex to Jeff's draft letter
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Dear Brian,


o    The rather broad scope of the current IGO INGO PDP, which considers "whether there is a need for special protections at the top and second level" of all gTLDs, has the practical effect of second guessing GAC advice with respect to international legal norms and public policy.  In other words, whether intentional or unintentional, the impact of the instant PDP is to challenge, or at least question, not only the GAC's proposed criteria for protection, but also the GAC's determination to advance protection for the specific two organizations that meet that criteria.
Under this scope, the PDP would not only examine the need for special protections in new gTLDs but also under the existing ones. One may argue whether this is necessary or distracting (see the next point), but I do not see it as directly challenging the GAC advice.
I personally would have preferred a more direct reference to the level of protections required. After all, the term "special protections" is not particularly conclusive as to what these protections are actually supposed to be, and also the GAC has been rather opaque on what kind of protections they envision. It is the duty of the GNSO to fill the GAC advice with life and I agree that the language describing the scope of the PDP should have been more clear on that.
I thought the GAC was fairly clear about its request for second-level protection in its September 14, 2011 letter<https://gacweb.icann.org/download/attachments/1540128/GAC+advice+on+IOC+and+Red+Cross+Sep.+2011.pdf?version=1&modificationDate=1317031625000>.



o    Please bear in mind that the GAC was careful to propose protections for Red Cross designations, Olympic words and a finite list of IGO acronyms for new gTLDs only.  I cannot recall anyone ever recommending or requesting such protection in all existing gTLDs as well.  Thus, the Council's response to the GAC needs to fully explain any underlying rationale for the unilateral decision to broaden the scope of the instant PDP well beyond GAC advice to include existing gTLDs.
While I also cannot recall any such request or recommendation, I fail to see why new gTLD should be treated differently from existing gTLDs. If it is determined that a form of special protection is necessary, why would such a need not also apply to existing TLDs?
If that is the reason why the PDP encompasses existing gTLDs, then it should be added to the response to the GAC.  It is just a guess, but perhaps their proposal was limited to new gTLDs to avoid overreaching or conflicts with existing interests in second-level registrations.


o     The Council's current draft response to the GAC seems to suggest that the GNSO's primary remit of policy development relating to the IOC/Red Cross is "to determine what, if any, exceptions (i.e. for pre-existing, non-commercial, and/or geographical use) should apply in the domain name context-particularly at the second level and in both new and existing TLDs."  If this is ultimately our position as a Council, then I believe it is best to gently back away from the current PDP, at least with respect to the Red Cross designations and Olympic words, in favor of something much more expeditious and narrow.
Would it not be the job of the PDP to make exactly that determination as part of their deliberations?
If this is the only issue, or the primary issue, with respect to these entities, then perhaps something other than a full PDP was in order, such as a "policy guidance working group" as suggested in staff's proposed policy versus implementation framework.


o    The proposed definition of "policy" in the letter is overbroad, subjective and particularly inappropriate in light of the recent policy versus implementation discussion framework published by ICANN policy staff.  I believe it is better to simply admit that there is no bright line test and recognize that this issue is ripe for further discussion within the ICANN community.
I would not call it inappropriate just because there is no clear line in the sand.
Perhaps I am wrong, but I think we can all agree that there is a strong divergence of opinion within the community on the definition of "policy."  I thought it best to acknowledge that in our response to the GAC.  In endorsing this letter as it is written, does everyone intend to endorse Jeff's definition of policy?

Best,

Volker Greimann
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