[council] FW: Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list

Thu Nov 29 13:50:56 UTC 2018

Hi all,

Per our conversation today on the IGO-INGO CRP topic, please note the following email from George Kirikos, a member of the PDP WG.

Regards,
Keith

-----Original Message-----
From: George Kirikos <icann at leap.com>
Sent: Thursday, November 29, 2018 2:01 AM
To: Drazek, Keith <kdrazek at verisign.com>; rafik.dammak at gmail.com; pam.little at alibaba-inc.com; Nathalie Peregrine <nathalie.peregrine at icann.org>; Mary Wong <mary.wong at icann.org>; Steve Chan <steve.chan at icann.org>; darcy.southwell at endurance.com; mpsilvavalent at gmail.com
Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org>
Subject: [EXTERNAL] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list

Hello,

[please forward this email to the rest of GNSO Council]

On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting (not observing the usual 10 day advanced notice rule for documents), ICANN staff sent various documents related to the IGO-INGO Curative Rights PDP to the GNSO Council mailing list:

https://mm.icann.org/pipermail/council/2018-November/022091.html

Given the limited time to review it, I can't comment on all of it at this time. However, it once again appears to present a false and one-sided view of the work of the PDP working group, in an attempt to undermine its recommendations. Furthermore, it excludes important information.

1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES & NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS
(PDP) FINAL REPORT", the first option (on page 2), namely engaging in a facilitated discussion with the GAC, ignores the fact that the the working group already fully considered the input that was provided by the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC, i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that registrants subject to a UDRP or URS would also be parties who are "most affected" by recommendations.

In addition, there **already*** was a "small group" convened with IGO participation, see:

https://mm.icann.org/mailman/listinfo/discussion-igo-rc
https://mm.icann.org/pipermail/discussion-igo-rc/

which had the participation of WIPO, OECD, and both co-chairs (at the time, before Phil Corwin resigned in 2018) of the IGO PDP, among others. Indeed, the author of the 11 page document (ICANN Staff member Mary Wong, as per the metadata of the PDF) was the first person who posted on that mailing list:

https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html

"This list has been created as a result of the conference call of 20 December 2016 among representatives of the ICANN Board, GAC and GNSO.
As a participant on that call, you have been automatically subscribed to this list, which is intended for group discussion of the proposal for a facilitated dialogue between the GAC and the GNSO, to resolve the outstanding issues on protections for IGO acronyms, the names of the Red Cross National Societies, and certain names and acronyms of the international Red Cross movement."

IGOs have had their say, numerous times. All that another "facilitated dialogue" would do is attempt to mislead and misinform folks who are not subject matter experts, attempt to re-argue their past failed arguments, and furthermore exclude those who actually fully understand all the issues (i.e. the current members of the PDP working group who invested 4 years of research and analysis on the topic to come up with their consensus recommendations). IGOs have nothing new to say that hasn't already been said.

2. For option 5 (page 4) the document mentions concerns about "lack of representation", "differences between leadership and members", and "dominance by a specific group". Frankly, those are frivolous arguments that have been raised at a late date by those who failed to convince the rest of the working group as to the merits of their positions. One should immediately notice that those arguments are being made only with regards to Recommendation #5 -- if there truly was "capture", then certainly Recommendations #1 through #4 would similarly be impacted by the asserted "lack of representation", etc.
Furthermore, the current co-chair and the former co-chair had every opportunity, by Section 3.2 of the working group guidelines, to determine whether "capture" had occurred, but not once did they claim it during the PDP:

"The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization."

The assertions of "capture" began only *after* the co-chairs found themselves to be in a small minority and opposed to the consensus that the rest of the working group successfully achieved. After the first anonymous and non-transparent poll had been conducted in October 2017 which was consistent with the option favoured by the co-chairs, the co-chairs expressed no concerns whatsoever about "capture". It was only long afterwards, after the fully transparent procedures  (as a result of my first Section 3.7 appeal) established and documented that the co-chairs were in fact in a small minority, and the consensus was for an option other than that supported by the then co-chairs, that the "capture" argument was put forth (as an attempt to undermine the Final Report's conclusions).

Lastly, take a look at the documented positions and constituencies of each working group member who actually participated in the Consensus Call (as of June 12, 2018):

https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTFj-0i3FsammN5q-iD1QCQ_EMBC8LTzZ30TGvrf6Fw_mUvlnHa9DV9/pubhtml

(which wasn't put into the final report; later deliberations solidified the actual consensus levels as reported in the final report, as text was tweaked to satisfy various concerns that had been
expressed)

As was properly noted in the letter to the ICANN Board of August 16, 2018:

https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-board-16aug18-en.pdf

the working group had a broad cross-section of members from various constituencies. It's preposterous to suggest, for example, that David Maher and Crystal Ondo (both of the Registries Stakeholder Group, same as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group) were involved in a "capture" somehow, in supporting Recommendation #5 (Option #1). I can't speak for them, but presumably they made their best assessment of the facts and analysis, and supported the recommendations that were found to be best, just like every other member of the PDP. Those claiming "capture" should explain how 2 members of the Registries Stakeholders Group (same constituency as Phil Corwin) and 1 member of the Registrars Stakeholders Group were part of the consensus that is being attacked by some. It's obvious that they can't do this, completely destroying the credibility of those claiming "capture". Instead, they try to smear the group as a while with unsupportable claims. If there really was voting in "blocs", explain why both Reg Levy and myself happened to be *opposed* to Recommendation #4 (being in a minority on that one, against the
consensus) -- this too is not consistent with "capture" (i.e. it's clear people made their own decisions).

3. It's no secret that I've been highly critical of ICANN staff in this PDP. The bottom of page 6 is yet another example of misinformation coming from ICANN Staff. The "Notes on #1" asserts that I (without naming me) "proposed what became Recommendation #5" -- that is a complete falsehood. In fact, it was Paul Keating who was the one who had first proposed Option #1 (which became the consensus Recommendation #5), back when the matter initially arose, as fully documented on July 21, 2016, starting on page 14:

https://community.icann.org/download/attachments/60491579/transcript%20IGO%20INGO%2021%20July%202016.pdf?version=1&modificationDate=1469203657000&api=v2

Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then ****the UDRP decision itself should become a nullity.*****

And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent.

So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, ****then the UDRP decision becomes a nullity.*****" (emphasis added)

Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’
say there’s a decision, it goes against the registrant in the UDRP.
Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - ****under your scenario, the UDRP decision is also vitiated.****" (emphasis added)

So, initially it was being called "nullification", and I believe Phil Corwin was the first one to use the term "vitiate." Regardless, it was Paul Keating's proposal, not mine.

This history is further documented by the Adobe Connect Chat Room Transcript for the following week's call PDP call (July 28, 2016):

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html

where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's
idea:

"George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered).
  George Kirikos:*brough = brought
  Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo.
  Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider.
  Mary Wong:@George, but this would be a case filed by the losing respondent, right?
  Mary Wong:Against a UDRP decision in favor of the IGO.
  George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser"
  George Kirikos:A court case can be initiated at any time, even before the panel has made a decision.
  Mary Wong:Understood, but I had thought that the "nullification"
point referred to vitiating the UDRP decision.
  George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others)
  Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify.
  George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought).
  George Kirikos:Some panels will terminate, to defer to the courts.
Some panels will still render a decision, though.
  George Kirikos:I didn't propose it -- Paul Keating did."

The correct attribution (to Paul Keating) is certainly known by ICANN staff, as it was pointed out before, including on November 22, 2017 on the mailing list, see:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html

I think ICANN Staff intentionally tried to associate Option #1 as being my idea in an attempt to undermine it, trying to link its origins to someone who is personally disliked by some members of the GNSO Council, and who would vote against it on that basis alone.
[Indeed, Option #1 (what is currently Recommendation #5's consensus) wasn't even my personal favourite option! (Option #7 was, which was unfortunately arrived at too late to be considered)]

4. The "Note on #6" (page 10) concerning things like "dynamics" and "process challenges" is highly one-sided. In fact, the Section 3.7 appeals were meritorious, which folks would quickly realize if they actually read the background documents. The questions raised about transparency of process were 100% valid, as the anonymous voting violated the Working Group Guidelines, justifying the first section
3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had adequate time to prepare our final report and to reach consensus, see:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html

It too was meritorious, since we finally did reach consensus on all 5 recommendations (overcoming the efforts of those who tried to manipulate the process). And, the fact that GNSO Council now wants to gain "specific insights into deliberations" (Option 6, page 4 of the
document) is strong evidence that the Final Report was inadequate, a point I made repeatedly in arguing for more time to add more info documenting our rationale (ICANN staff did a horrible job  summarizing our debates and arguments). In fact, I personally disavowed the Final Report in July, because it wasn't up to snuff (even after I had been apparently the only one to have proofread what was submitted, as Staff delivered a draft report at a very late date with little time to review and respond):

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html

"Furthermore, I do not intend to read or amend the draft Final Report any longer, while this Section 3.7 appeal is in effec. I appear to be the only person who has even attempted to read it and improve it, yet today is 1 day before it's due! We have to stop pretending that the Final Report is in good shape and ready for submission, and I won't be part of that pretending any longer. [I'll rely on my own words in my own minority statement]

Specifically, I *disavow* the current draft Final Report. While I believe the Recommendations themselves have been accurately recorded, the supporting rationales and other text in that document are not in good shape yet for submission to GNSO Council."

Any "process challenges" that GNSO Council should be concerned with should be instead be directed to the continued attempts by those opposed to the recommendations  to manipulate the outcome of this PDP's work which is now in Council's hands. This manipulation has been going on for a long time, including the rushed final report (it was rushed supposedly because we were told it needed to be voted upon in July 2018; I think it was rushed instead in order to make it more easily attacked by those opposed to its conclusions). I pointed this out repeatedly, including in early July:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html

when the report's recommendations weren't put to a vote like it was supposed to be, as evidenced by the motion that was presented in advance of the GNSO Council meeting that didn't include a vote.

5. It's crucial to have studied the origins of the UDRP, to understand Consensus Recommendation #5, yet none of what follows is in the Final Report or in subsequent documents provided to Council.

The history of the UDRP is documented at:

https://www.icann.org/resources/pages/schedule-2012-02-25-en
https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en

"The proposals were designed to provide trademark holders with the ****same rights**** they have in the physical world, to ensure transparency, and to guarantee a dispute resolution mechanism *****with resort to a court system.***** " (emphasis added)

Notice the "same rights" and "with resort to a court system." It can't get much clearer than that. Recommendation #5 provides exactly that, the same rights and resort to the court system.

The White Paper goes on to say:

"Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. ****Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court.**** (emphasis added)

Again, Recommendation #5 accomplishes that, by ensuring that it is up to the appropriate courts to decide on the merits. IGOs ignore these facts, and are happy to instead push for binding arbitration in unaccountable kangaroo arbitration panels as being "good enough" for registrants.

The issues surrounding access to the courts for a decision on the merits was well understood at the time the UDRP was created nearly 20 years. Section 4(k) of the UDRP and the corresponding URS rules were an attempt to accomplish that, but they are not entirely effective (Recommendation #5 fixes this).

Indeed, if one goes to the Staff report at the time:

http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm

"DNSO Recommendation 4(b): The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report;

Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that both registrants and challengers should have ****equal opportunities**** to "appeal" an outcome of the administrative dispute-resolution procedure. Some commentators have suggested that the DNSO-recommended proposal would afford challengers significantly superior "appeal"
rights. The staff notes that this result would be a clearly unintended consequence of the DNSO proposal. The staff believes that this concern can and should be fully addressed in the implementation of the dispute-resolution policy, which should explicitly negate this possibility." (emphasis added)

The possible inability to have the access to the courts for a decision on the underlying merits due to immunity issues for IGOs was another "unintended consequence", which would be fully corrected by the Consensus Recommendation #5.

Furthermore, to understand the development of UDRP's Section 4(k), see:

http://www.dnso.org/dnso/notes/19990729.NCwga-report.html

"   The need to address the situation wherein a domain name
registrant who has been unsuccessful in the ADR process is effectively prevented from  appealing  the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right.  It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report.

One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation). "

[This history was pointed out in the RPM PDP recently, see:

https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ]

So, in other words, Consensus Recommendation #5 is entirely consistent with the history and purpose of the UDRP, and fixes issues that were not anticipated correctly by the current existing policy.
Recommendation #5 puts both parties back in the same legal position they'd be had the UDRP/URS not taken place (which interfered with the access to the courts to render a final decision on the matter), to ensure that it's the courts that have the final say on the merits of a dispute, without interference by ICANN or its policies. It makes sure that ICANN is not granting either side any better outcome or rights from the UDRP/URS than exists in the real courts. In other words, Recommendation #5 ensures that both the IGO and the domain name registrant have the outcome determined by the courts, as was expressly desired in the development of the UDRP (which the URS is modeled on).

Everything put forward by the IGOs, in trying to discredit the PDP's final report, is an attempt for IGOs to create a process that would give them better outcomes and better rights than exist in real national courts and under national laws. They want an uneven playing field, one that advantages themselves to the detriment of others.
Those attempts should be vehemently opposed (which the Consensus accomplished), as otherwise it would mean ICANN would be creating its own "new law", rather than creating policies that are consistent with
***existing*** laws of nations.

In conclusion, GNSO Council should adopt all the recommendations in the final report.

If it requires a better explanation for the recommendations, that too can certainly be done (that's why I filed the 2nd Section 3.7 appeal!). But, that better explanation should not be done by those who've actively tried to undermine the work.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/