[council] potential annex to Jeff's draft letter

Wed Jan 30 18:04:54 UTC 2013

Hi Jonathan,

I would support option 1. and request a minority opinion from the IPC to 
be attached to the letter.

By doing so we could hit our deadline.

Best,

Volker
>
> All,
>
> I believe we are heading to one of two options:
>
> 1.Adopt the substance of Jeff's draft with agreed changes.  I believe 
> that we will need to reflect Brian's / the IPC input on this and so it 
> may need some changes in order to do so.
>
> 2.Write to Heather / the GAC indicating that we are working on this 
> but need a little more time.
>
> Consider also that want to limit the extent to which we go into the 
> Policy vs Implementation issue here since this is the subject of a 
> broader and longer term initiative.
>
> Thanks.
>
> Jonathan
>
> *From:*owner-council at gnso.icann.org 
> [mailto:owner-council at gnso.icann.org] *On Behalf Of *David Cake
> *Sent:* 30 January 2013 17:49
> *To:* Neuman, Jeff
> *Cc:* Winterfeldt, Brian; council at gnso.icann.org
> *Subject:* Re: [council] potential annex to Jeff's draft letter
>
> I am supportive of Jeff's position - I'm in favour of sending the 
> letter as it was drafted (with the suggested changes from Thomas in 
> the appendix). I believe Brian's suggestions would change the letter 
> in such a way that it would no longer represent the views of the 
> majority of council.
>
> Regards
>
> David
>
> On 30/01/2013, at 6:54 AM, "Neuman, Jeff" <Jeff.Neuman at neustar.us 
> <mailto:Jeff.Neuman at neustar.us>> wrote:
>
>
>
> Thank you for this Brian.  I think we face a dilemma here because your 
> revisions not only gut the letter that was written by us, but also in 
> many respects represents a complete reversal of the positions taken by 
> most of the members of council on the previous council calls.  We can 
> of course make some updates based on the new paper ICANN staff just 
> released, but remember that that was not out when I initially sent the 
> letter.
>
> So, we now have two versions of the letter which I do not believe 
> cannot be reconciled.  If it just the IPC that supports this new 
> version, then we should send the original version and allow the IPC to 
> include comments as a minority report.  If, however, there is other 
> support for this version, then we have an issue to work through.
>
>
> With respect to the comments raised in the e-mail below:
>
> oWe disagree with the notion that "the impact of the instant PDP is to 
> challenge, or at least question, not only the GAC's proposed criteria 
> for protection," or "the GAC's determination to advance protection for 
> the specific two organizations that meet that criteria."  This was 
> carefully considered by the Council when it chose to implement the PDP 
> and rejected by those voting in favor of the PDP.
>
> oI don't believe we said that the sole remit of the PDP was to look at 
> exceptions, but rather, that was listed as an example.
>
> oI have no objection of including a footnote that the IPC did not 
> support the PDP, but to change the entire letter simply because one 
> constituency didn't agree to not seem to be the right approach.
>
> oThe policy framework put out by ICANN staff is still under discussion 
> and should not be used for any other purpose until that document has 
> been thoroughly vetted. We appreciate the fact that the IPC believes 
> that the definition of policy is overbroad, but we have taken this 
> definition from what has been used in the past by ICANN in actual 
> situations to look at actual issues to determine whether it is in 
> scope for the policy process.  It is the only community accepted 
> definition that there is.
>
> oOn the legal issue of intermediary liability, I could cite a number 
> of legal cases in the US, including the Lockheed Martin case, 
> Brookfield, etc. but we wanted to keep the letter short and to the 
> point.  I also have a case we litigated in Belgium that states the 
> same thing that could be cited involving the droit.biz domain name.
>
> In short, we as a council need to decide what to do.   The registries 
> are in favor of sending the letter as it was drafted (with the tweaks 
> from Thomas on the Appendix).  The IPC comments would drastically 
> change the letter in a way that defers to the GAC on everything 
> policy-related, which we believe represents a contravention of the 
> ICANN Bylaws (where the GNSO is charged with policy making for gTLDs) 
> and a potential break down of the multi-stakeholder process.  Don't 
> get me wrong, the governments are vital for the multi-stakeholder 
> process to work and we believe their opinions/advice should be weighed 
> heavily. But they cannot be the "be-all-end-all" of policy with 
> respect to gTLDs.  This is not only an issue with respect to the 
> IOC/RC and IGOs, but also Whois, law enforcement activities, etc.
>
> We need to find a way to all work together.
>
> Best regards,
>
> *Jeffrey J. Neuman****
> **Neustar, Inc. / Vice President, Business Affairs*
>
>
> *From:*owner-council at gnso.icann.org 
> <mailto:owner-council at gnso.icann.org> 
> [mailto:owner-council at gnso.icann.org 
> <mailto:council at gnso.icann.org>]*On Behalf Of*Winterfeldt, Brian
> *Sent:*Tuesday, January 29, 2013 8:16 PM
> *To:*council at gnso.icann.org <mailto:council at gnso.icann.org>
> *Subject:*RE: [council] potential annex to Jeff's draft letter
>
> Dear all:
>
> As you may already be aware, I have a different point of view on the 
> Council's response to the GAC with respect to the ongoing IGO-INGO PDP.
>
> Having informally spoken to GAC representatives about this issue, here 
> are some personal comments, that are shared by IPC leadership, as well 
> as a proposed redline that I would like to have on record and I hope 
> the Council will take into consideration.
>
> oThe 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.
>
> oPlease 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.
>
> oThe 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.
>
> oAs you may recall, the original IPC position on this issue is that 
> IOC/Red Cross protection should not be subject to a PDP.  That 
> position is not reflected in the letter, and it should be reflected, 
> even if it is reflected as a minority view.
>
> oThe 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.
>
> oTo clarify, I do not believe that the GAC is asking for protection of 
> the entire .INT list of names.  Rather, it is my understanding that 
> the list of IGOs that qualify under the GAC's criteria (i.e. are 
> treaty-based organizations) is a discrete list of around only 200 
> acronyms.
>
> oFinally, the Council should not support anything, regardless of its 
> substance, that may be interpreted as a legal opinion on intermediary 
> liability, such as the statement that, "(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.)"  Conclusions such as these 
> should be fleshed out and substantiated with objective facts, research 
> or citations.
>
> Please contact me if you would like to discuss any of these comments 
> or proposed amendments further.
>
> Thank you,
>
> Brian
>
> *Brian J. Winterfeldt *
>
> Partner
>
> bwinterfeldt at steptoe.com <mailto:bwinterfeldt at steptoe.com>
>
> Steptoe
>
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>
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>
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>
> 	
>
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>
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>
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>
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> -------------------------------------------
>
> From:owner-council at gnso.icann.org 
> <mailto:owner-council at gnso.icann.org>on behalf of Jonathan 
> Robinson[SMTP:JONATHAN.ROBINSON at IPRACON.COM]
>
> Sent: Monday, January 28, 2013 1:32:24 AM
>
> To: 'Thomas Rickert'; 'GNSO Council List'
>
> Subject: RE: [council] potential annex to Jeff's draft letter Auto 
> forwarded by a Rule
>
> Many thanks Thomas,
>
> I'll certainly plan to review today.
>
> Jeff (as lead) and others, please note that this is due for completion 
> this week since I told Heather we'd reply to her in January.
>
> Thanks,
>
> Jonathan
>
> -----Original Message-----
>
> From:owner-council at gnso.icann.org 
> <mailto:owner-council at gnso.icann.org>[mailto:owner-council at gnso.icann.org] 
> On Behalf Of Thomas Rickert
>
> Sent: 27 January 2013 17:29
>
> To: GNSO Council List
>
> Subject: [council] potential annex to Jeff's draft letter
>
> All,
>
> as discussed, please find attached a text that could be used as an 
> Annex to the draft letter prepared by Jeff in response to the GAC to 
> illustrate the complexity of the matter. The intention was to keep it 
> very brief (a bit over a page), but still show that there are some 
> issues that need to be resolved.
>
> Thanks,
>
> Thomas
>

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