[CWG-Stewardship] Comments on Comments

Mon Aug 8 22:09:49 UTC 2016

Esteemed Co-Chairs,

My responses are inline.

Greg

On Mon, Aug 8, 2016 at 4:39 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Dear distinguished and respectful Co- Chairs
>
> Since yesterday, 07 August around 18, 00 UTC till today, 08 August 20126,
> among some 60 messages exchanged, I have sent more than 20 message, trying
> to express my comments7 views on the draft agreement.
>
> Someone, who claimed to represent the entire ICANN Community, repeatedly
> and categorically opposed to my comments referring to a Particular Country
> law and particular cour and particular individual attempting to provide
> supports with his views.
>
I never claimed to represent the entire ICANN Community.  The comments
related to an agreement drafted under and subject to California law; it's
only logical to make such references.  I did not oppose your comments
categorically.  I considered them one by one.  It just so happened that I
couldn't agree with any of them.  In one case, I provided an article by a
well-regarded authority on contract drafting regarding the "shall vs. will"
issue; I thought that was only fair to supply views in addition to my own.
There are quite a number of others with that same view (both in the US and
elsewhere): that there is little if any difference between will and shall,
and that shall is becoming disfavored in contract drafting.

> This person, like me is a simple participant in CWG and does not hold any
> representation from any group due to the fact that such representation does
> nor prevails in the process..
>
I've never said I was anything other than that.

> I do not know his duty and his responsibility. Apparently he speaks for
> everybody.
>
I've never said that.  I am trying to facilitate the drafting
negotiation, comment and ultimately signing of this agreement, which is in
the best interests of this and every other group involved in this process.

> I have made some valid comments but he rejected that in arguing that the
> text agreed by such and such community.
>
In my opinion, the comments were not valid.  The particular comments in
question related to issues in the agreement of primary concern to the
RIRs.  In one case, the language being objected to was proposed by the RIRs
to summarize the way in which they come to decisions as a group.  Another
phrase with a different meaning was proposed.  I assume the RIRs have a
firm grip on how they make decisions.  That said, I brought this concern up
on the IPR collaborative group call, and this drafting may change.
However, if in fact the RIRs make decisions unanimously and not by any
different means, I would expect to see this somewhere in the document.  I
should point out that most of Mr. Arasteh's remaining comments did not
relate to language proposed by the RIRs and thus their validity or lack
thereof did not relate to the RIRs or their positions.

> If that is the case, then what is the usefulness and utility and existence
> of CWG.
>
I would say that it has been extremely useful for the past two years.  How
else would we have developed our transition proposal.  To question the
usefulness and utility and existence of CWG solely because one
participant's views did not gain traction in the group and were kindly
responded to by another participant who provided views on why those views
should not be adopted, strikes me as rather narcissistic.  But I'm a
lawyer, not a psychologist.

> Those community could get together and agree with each other without
> corrupt the CWG reputation and prestige.
>
In this particular instance, we are reviewing an agreement to be signed by
the RIRs, IETF, IETF Trust and the names community. Representatives of all
of those parties are coming together to put forth a draft document for
public comment.  I don't see anything in this process that "corrupts the
CWG's reputation and prestige."  Quite the opposite.

> We are not under any particular law regime not any particular court. This
> is an international, open transparent. Button –up multistakeholder process
> which should take into account all views
>
I think we are taking into account all views.  That doesn't mean that all
view should prevail.  Again, this is an agreement that is drafted and will
be interpreted under California law.  The CWG itself is of course not under
any legal regime and I think we have proceeded under just the process
described above (though I would say "bottom-up" rather than "button up").

> I DO NOT AGREE WITH ANY VOTING PROCESS as the CWG chatter normally
> prohibits that.
>
No one suggested a vote.

> Some people might have particular Agenda to support particular views. This
> must be discouraged.
>
I'm not sure what other people's agenda's are.  In any event, in a
multistakeholder process, people are expected to hold particular stakes and
thus to support particular views, so a blanket object to agendas and views
is misplaced.  In any event,  my only agenda is to assist us in
accomplishing our collective objective, decided through a long, arduous
multistakeholder process.  Aspersions to the contrary should be ignored.
 I will make clear that no one is paying me to take these positions (much
to the chagrin of my employer and my wife); I'm just trying to help us get
through this process.  I guess no good deed goes unpunished, and no good
intention goes without an attempt to tarnish it.

> This should be an open, transparent and healthy process. Any proposal must
> be debated and agreed upon by consensus WITHOUT ANY RECOURSE TO VOTING OR
> POLL.
>
I think the process has been open, transparent and healthy, and there has
been a debate.  I've seen no support for your views, but they are still
open for debate.  The draft community agreement does need to be supported
by the CWG as a document we can support and put out for public comment, in
conjunction with the other participants in this multi-community,
multi-stakeholder process.  If there are significant objections to this
draft by a significant number of people in this group, that is a
significant issue that needs to be addressed.  I'll leave it to our
co-chairs to judge where we stand.

> Your duty as co – chairs are incumbent to you to consider all proposals no
> matter who makes that proposal and without any political polarization.
>
That's not quite their job descripion, but close enough for jazz.  I'm
confident our co-chairs will take care of this issue.

> I have spent many many hours to study and make comments as well as to
> reply to many unjustified objections
>
As have I.  I do have to say that my "objections" were entirely justified
and appropriately explained.  While I appreciate the time and effort taken
to provide these views, that does not in any way make them more likely to
be valid.

> Now the ball is in your camp to organize a call and discuss the matter.
>
Balls go in courts, not camps.  (Of course, I'm monolingual, so fluency
with one language is hardly as impressive as great facility in several, and
not nearly as useful, either.)

In that call you are expected to allow everyone to freely express its views.
>
I'm sure they will do so, consistent with their management of this entire
process to date.  Of course, free expression of views has to take place
within a realistic timeframe.

> The objective is to find a consensus solution and not voting
>
Of course it is.  I expect the consensus to be that the CWG should support
putting out the Community Agreement for public comment substantially in the
shape in which it is delivered to us, but I'll leave that to the process,
our co-chairs and our esteemed colleagues in this group.

> Regards
>
> Kavouss
>

Greg

>
> 2016-08-08 22:31 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>
>> Responses inline:
>>
>> On Mon, Aug 8, 2016 at 3:50 PM, Kavouss Arasteh <
>> kavouss.arasteh at gmail.com> wrote:
>>
>>> Grec,
>>> It is couter productive to exchange any views with you.
>>>
>>
>> I'm sorry you feel that way.
>> 
>>
>>
>>> You take yourself as representing the entire community
>>>
>>
>> I never said that.  On the other hand, you said I was acting out of a
>> particular "vision" so I needed to refute that.
>>
>>
>>> having participated or drafted 800 legal VIEWS ,who care about it
>>>
>>
>> I said I've participated in over 800 transactions, many with multiple
>> agreements being negotiated and drafted.  If you don't care about
>> experience or knowledge, that's your prerogative.
>>
>>
>>> You just MAY SPEAK ON YOUR OWN BEHALF AND EVEN NOT ON BEHAF OF ANY OTHER
>>> ENTITY INCLUDING IPC
>>>
>>
>> I never said I was speaking on behalf of anyone but myself.  There may
>> be times when I speak on behalf of the IPC, but this (entire subject) is
>> not one of them.  On the other hand, my purpose is to speak and act in what
>> appear to be the best interests of the community.  I didn't want any
>> confusion about that.
>>
>>
>>> THERE IS NO PROXY IN THIS PROCESS.
>>> I prefer NOT TO REPLY TO YOUR MESSAGE since you have no logic but
>>> insistance.
>>>
>>
>> I think my responses to your comments were quite logical and
>> well-informed.  You've complained that no-one responds to your comments,
>> yet you tar-and-feather someone who does.  That is no way to encourage
>> further engagement with your opinions.  If you prefer not to reply to my
>> message, that's also your prerogative.  I may take that prerogative as
>> well, and let your comments die on the vine.  I think I've been more than
>> fair in dealing with them.
>>
>>> .
>>> I do not know who is " your lawyers.?
>>>
>>
>> I do not have any lawyers.  The CWG, however, has lawyers: Sidley
>> Austin, led in this particular case by Josh Hofheimer, an experienced IP
>> and Technology Transactions partner in their Silicon Valley and Los Angeles
>> offices, with the support of experienced transactional and IP lawyers,
>> several of whom, like Josh, have been advising the CWG and the CCWG for
>> nearly two years.  I thought you knew this by now.
>>
>>
>>> The process is a collective one and there is not " our lawyers " nor
>>> your lawyer,
>>>
>>
>> Please see above.
>>
>>
>>> You do not accept any compromise.
>>>
>>
>> I accept compromises all the time, and many in this CWG.  As a
>> transactional lawyer, one can't close deals without compromises.  As such,
>> this document represents compromises among the several communities.
>> However, one can't compromise just for the sake of compromising.  There
>> needs to be merit in the position proposed and merit in any compromise
>> position -- and in this case it needs to be of sufficient merit that it's
>> likely to convince the other operational communities and the IETF Trust to
>> adopt the change.  I did not see anything sufficiently meritorious in
>> either category.  For example, arguing that "joint and several liability"
>> is not a standard concept of US law has no merit, and there is no
>> meritorious compromise between saying "joint and several liability" (which
>> has a well-settled and well-understood meaning) and saying some other
>> thing, which has no well-accepted meaning.  Joint and several liability
>> simply means that all of the parties are jointly liable for the amount in
>> question, and each party is liable for the full amount (but not allowing
>> for duplicative recovery); this allows for full recovery by the plaintiff
>> even where some defendants can't pay toward the recovery.  There's no
>> reason to choose any other way to say this.  In legal drafting, it's
>> important to use well-settled terminology that will not be ambiguous when
>> interpreted.  The use of such "terms of art" can be weighed against the use
>> of "plain english" for readability by non-lawyers, but these are judgment
>> calls in drafting.  I see no reason to change a clear and well-known term
>> of art just because you refuse to acknowledge that "joint and several
>> liability" is a well-settled phrase for a standard legal concept.  And I
>> see no chance that anyone could convince the other drafters of this
>> document to make that change.  Finally, I would note that this phrase is
>> being used only in connection with the relationship between the RIRs and
>> the IETF Trust, so it's relevance to this group is questionable at best.
>>
>>
>> You insist on what has been dictated to you .
>>>
>>
>> Nothing has been dictated to me.  I'm not entirely sure what this means,
>> but I've made every choice here out of my own free will, including the
>> rather Quixotic choice to continue to engage with you.
>>
>> It may be better not to REPLY TO YOUR MAIL
>>>
>>
>> Again, that's your preregative.  I'm not sure how that serves to
>> convince anyone of the merits of any of your changes.  I tend to think it
>> does the opposite.
>>
>>
>>
>>> Have nice and enjoyable afternoon
>>>
>>
>> Have a good evening.
>>
>>
>>>
>>>
>>>
>>> 2016-08-08 20:18 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>>>
>>>> My replies are in-line.
>>>>
>>>> On Mon, Aug 8, 2016 at 1:17 PM, Kavouss Arasteh <
>>>> kavouss.arasteh at gmail.com> wrote:
>>>>
>>>>> Grec
>>>>> Here is my reply
>>>>> I am re-sending these responses to Kavouss's comments to the list with
>>>>> two notes:
>>>>>
>>>>> 1.  The use of "unanimous" in the preamble was discussed. The reason
>>>>> for this use is to make it clear that the RIRs must act unanimously as the
>>>>> "numbers community" "party" to the agreement.  This is language the numbers
>>>>> community feels comfortable with, and it apparently tracks language used in
>>>>> the IANA numbers MoU (but I haven't checked). This verbiage may change as
>>>>> other alternatives are considered, but the concept remains the same.
>>>>>
>>>>> Comments
>>>>> Read my comments in regard with the use of the term Unanimously.
>>>>> If you want to introduce some thing more than of and in addition to
>>>>> Collective , at the maximum use " and by consensus " instead of UNANIMOUSLY
>>>>> 2
>>>>>
>>>>
>>>> This is the word the RIRs chose to indicate how they operate as a
>>>> group.  Consensus is not the same thing as unanimity.  It would be
>>>> absolutely wrong to say consensus when it is not conensus and it would be a
>>>> breach of process and respect for other communities to impose a description
>>>> of their process.  The CWG has no business telling the RIRs how to
>>>> characterize their process when acting as a group, especially when we would
>>>> be wrong as a matter of fact when doing so.
>>>>
>>>> This may change because the current use is in a "definition" (maybe not
>>>> the best place to capture the concept) and it may be better expressed
>>>> elsewhere in the document.
>>>>
>>>>>
>>>>>
>>>>> 2.  In response to the comment on Section 6.5 regarding "joint and
>>>>> several liability," in which Kavouss commented that "joint cannot be
>>>>> associated with several."  "Joint and several liability" is a fundamental
>>>>> legal concept and well-understood term, at least under U.S. law.  Here is a
>>>>> definition from the Cornell Legal Information Institute
>>>>> https://www.law.cornell.edu/wex/joint_and_several_liability  (one of
>>>>> many available on the web):
>>>>>
>>>>> COMMENTS
>>>>> Once again  jointly and severally are incompatible.
>>>>> You refer to US Court are different at different cases and can change-
>>>>> Thus There no single agreed opinion ,decision or order of a court in this
>>>>> regard
>>>>>  which could be applied to all cases.MOREOVER, IT DEPENDS WHICH COURT
>>>>> ( DISTRICT PREMIER INSTANCE, Appeal , or Federal ONES )
>>>>> Select another term instead of " severally"
>>>>>
>>>>> I have had many other comments
>>>>> I spent three hours of omy time of unday
>>>>> I do expect that people do not insist on their wrong vision
>>>>>
>>>>> please kindly reconsider the matter and accept two of my recent
>>>>> alternative proposal plus my other proposal
>>>>>
>>>>
>>>> Kavouss, "joint and several liability" is an absolutely standard
>>>> concept of liability under US law (i.e., so-called "black letter law").
>>>> There is no point in trying to build a case otherwise.  It is completely
>>>> understood and well-settled regardless of the court or jurisdiction in the
>>>> US.  While parties may dispute how to apply the concept in a given case's
>>>> fact pattern, and due to the fact that the US is a common-law jurisdiction
>>>> and precedent has a great deal  of influence, interpretation may differ
>>>> slightly from jurisdiction to jurisdiction, the concept is well-settled and
>>>> term is completely standard.  In any event, the agreement is governed by
>>>> California law and any issue of interpretation would be governed by
>>>> California law.
>>>>
>>>> I have reconsidered these suggestions but I see no reason to change my
>>>> opinion of them.  I'll send this and your prior communications to the
>>>> Client Committee list, but I don't expect any disagreement.
>>>>
>>>> I want to be clear that I am not insisting on any personal vision or
>>>> concept here; rather I am looking at these issues with the best interests
>>>> of the ICANN community at heart.  I'm also relying on the fact that I have
>>>> been a practicing lawyer since 1986 and I've learned a few things since
>>>> then, as well as at Columbia Law School, where I was a Harlan Fiske Stone
>>>> Scholar and the Editor-in-Chief of one of the law journals.
>>>>
>>>> I agree with your statement "I do expect that people do not insist on
>>>> their wrong vision" and hope that it will be applied here.
>>>>
>>>> Greg
>>>>
>>>>
>>>>
>>>>> Regards
>>>>> Kavouss
>>>>>
>>>>
>>>>
>>>
>>
>
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