[Gnso-igo-ingo-crp] Synopsis from Prof. Edward Swaine - WG call this week?

David W. Maher dmaher at pir.org
Mon Feb 29 19:01:27 UTC 2016 

+1

David W. Maher
Public Interest Registry
Senior Vice-President – Law & Policy
+1 312 375 4849


-----Original Message-----
From: gnso-igo-ingo-crp-bounces at icann.org [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George Kirikos
Sent: Monday, February 29, 2016 12:38 PM
To: Mary Wong <mary.wong at icann.org>
Cc: gnso-igo-ingo-crp at icann.org
Subject: Re: [Gnso-igo-ingo-crp] Synopsis from Prof. Edward Swaine - WG call this week?

Professor Swan seems to be going beyond the 4 fact-finding questions that were asked, in trying to give us "alternatives". Indeed proposing a "compromise" (on page 2) seems to be way out of line --  indeed drafting a provision!

In simple terms, "immunity" is just one of many *defenses* that a defendant to a dispute brought by others can raise. There are lots of other defenses available to defendants, one might defend an action by raising the issue of statute of limitations (i.e. that the action was brought too late). IGOs are not 'special' when it comes to having defenses available to them, although very few parties can raise the "immunity" defense.

Importantly, and distinct from raising this as a "defense", it's the IGOs who would be the cause of the domain name dispute. I cannot imagine a scenario where an IGO could *bring* an action to a court, and then try to claim "sovereign immunity" in that same court. They would lose that "defense" the moment they brought the action.

The existence of the UDRP should not change the above by one iota. It was not meant to create "new law". If the UDRP did not exist, the IGO would *have* to waive immunity to bring any action (as opposed to defending an action brought by others).

The professor seems to agree with this analysis, but then goes way beyond his mandate, as if domain name registrants are going to want to reduce their legal rights.

If IGOs wanted to challenge a copyright owner, a trademark owner, a property owner, or be the initiator of *any* other kind of dispute, they could not simply wave their hands and insist upon "binding arbitration" in a forum that is convenient to the IGO. Domain names are no different.

I think the 'expert' should be focused on providing concrete *facts* (with explicit examples from various countries; just like some of the examples we've found in our work, e.g. Supreme Court of Canada decision, etc.), and not his own views or suggestions on new policies that would undermine domain name registrants under some 'compromise'
(a compromise that would be creating 'new law').

Sincerely,

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

On Mon, Feb 29, 2016 at 1:04 PM, Mary Wong <mary.wong at icann.org> wrote:
> Dear all,
>
> Please find attached the synopsis document from Professor Swaine that 
> Phil referred to in his email update to our Working Group (below). As 
> Phil mentioned, his and Petter’s plan is to use this as the basis for 
> discussion during the WG meeting at ICANN55, which is currently 
> scheduled for Wednesday
> 9 March.
>
> However, should you wish to hold a brief discussion this Wednesday (at 
> our usual meeting time of 1700 UTC) to provide initial feedback on the 
> attached synopsis as a preparatory step to the fuller discussion next 
> week, please reply to this email accordingly. If a sufficient number 
> of members indicate that they would like to meet this week as well, we 
> will go ahead and schedule a call accordingly.
>
> Thanks and cheers
> Mary
>
>
> Mary Wong
> Senior Policy Director
> Internet Corporation for Assigned Names and Numbers (ICANN)
> Email: mary.wong at icann.org
> Telephone: +1-603-5744889
>
>
> From: <gnso-igo-ingo-crp-bounces at icann.org> on behalf of Phil Corwin 
> <psc at vlaw-dc.com>
> Date: Saturday, February 20, 2016 at 12:20
> To: George Kirikos <icann at leap.com>
> Cc: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
> Subject: Re: [Gnso-igo-ingo-crp] Any update on Swaine report?
>
> Dear IGO CRP WG Members:
>
>
>
> Here is a further update on the situation as regards Prof. Swaine’s 
> legal research.
>
>
>
> Petter and I, along with Mary and Steve, engaged in a one hour call 
> yesterday with Prof. Swaine in which we discussed our questions and 
> comments regarding the current uncompleted draft report, as well as 
> the needs of the WG in preparation for Marrakech.
>
>
>
> Prof. Swaine is not comfortable with having an incomplete document 
> bearing his name in wider circulation, and we fully appreciate  that 
> viewpoint. In addition, due to his academic responsibilities for the 
> remainder of this month, he does not believe he will be able to 
> complete a final draft prior to a potential 3/2 WG call or our F2F 
> meeting in Marrakech (which is currently scheduled to take place from 9-10:15 am on Wednesday, March 9).
>
>
>
> However, he did commit to provide our WG with a synopsis of his 
> research to date in the next week to ten days, which will provide us a 
> focus for an anticipated WG planning call on 3/2. The same document 
> can be used to catalyze discussion in Marrakech – and we plan to make 
> sure that GAC and IGO attendees are made aware that they are welcome 
> to participate in our 3/9 session. We will then provide Prof. Swaine 
> with feedback from those two sessions to help guide him in his 
> completion of the report, which we now anticipate receiving in final form later in March.
>
>
>
> While we had all hoped to have a final report available prior to our 
> Marrakech meeting, the agreed upon approach seems like the second best 
> option and will at least provide us with a basis for discussion over 
> the next few weeks.
>
>
>
> Please let us know if you have questions or comments.
>
>
>
> Best to all,
>
> Philip
>
>
>
>
>
>
>
>
>
>
>
>
>
> Philip S. Corwin, Founding Principal
>
> Virtualaw LLC
>
> 1155 F Street, NW
>
> Suite 1050
>
> Washington, DC 20004
>
> 202-559-8597/Direct
>
> 202-559-8750/Fax
>
> 202-255-6172/cell
>
>
>
> Twitter: @VlawDC
>
>
>
> "Luck is the residue of design" -- Branch Rickey
>
>
>
> From: Phil Corwin
> Sent: Wednesday, February 17, 2016 10:13 AM
> To: 'George Kirikos'
> Cc: gnso-igo-ingo-crp at icann.org
> Subject: RE: [Gnso-igo-ingo-crp] Any update on Swaine report?
>
>
>
> George:
>
>
>
> Thanks for your inquiry.
>
>
>
> Here's the state of play--
>
> ·         Last week we received a draft from Prof. Swaine. The draft was
> incomplete in that it did not yet contain conclusions. It is quite 
> comprehensive on the interface of sovereign immunity and IGOs and 
> demonstrates that this area is not fully developed or uniform, that a 
> great deal of discretion is left to individual nations to determine 
> the scope of recognized immunity, and that some considerations argue 
> for waiver in the UDRP context as being acceptable, while others may 
> lead to a contrary conclusion.
>
> ·         Due to travel schedules, the first time that Petter and I had a
> chance to discuss the draft with ICANN staff was yesterday. We are 
> seeking to schedule a call with Prof. Swaine later this week if at all 
> possible to raise various questions and issues as well as to determine 
> what his preliminary conclusions are..
>
> ·         Our hope is to get a more complete draft distributed to all WG
> members as soon as possible, and certainly prior to the Marrakech meeting.
> Once we speak with Prof. Swaine we will schedule a WG call for either 
> February 24 or March 2 (I depart for Marrakech on March 3) to prepare 
> for our Marrakech meeting.
>
> ·         At our meeting in Marrakech, we intend to seek comments on the
> draft from all WG members, as well as from IGOs and GAC members. 
> (Staff-do we as yet have a time and date for our WG meeting?) 
> Following Marrakech we intend to move forward expeditiously on our 
> work using the report as a basis for determining our course.
>
> Let me know if you have any additional questions at this time.
>
>
>
> Best regards, Philip
>
>
>
> Philip S. Corwin, Founding Principal
>
> Virtualaw LLC
>
> 1155 F Street, NW
>
> Suite 1050
>
> Washington, DC 20004
>
> 202-559-8597/Direct
>
> 202-559-8750/Fax
>
> 202-255-6172/cell
>
>
>
> Twitter: @VlawDC
>
>
>
> "Luck is the residue of design" -- Branch Rickey
>
>
>
>
>
> -----Original Message-----
> From: George Kirikos [mailto:icann at leap.com]
> Sent: Tuesday, February 16, 2016 4:33 PM
> To: Phil Corwin
> Cc: gnso-igo-ingo-crp at icann.org
> Subject: Re: [Gnso-igo-ingo-crp] Any update on Swaine report?
>
>
>
> I just wanted to followup and see how things are progressing. If we 
> don't get the draft Swaine report soon, then that means we're looking 
> at sometime in March for our next teleconference? (i.e. there's no 
> meeting tomorrow, and it wouldn't make sense to have a meeting next 
> Wednesday unless the report was provided before the weekend, so folks 
> can digest it and have informed comments/discussions).
>
>
>
> Sincerely,
>
>
>
> George Kirikos
>
> 416-588-0269
>
> http://www.leap.com/
>
>
>
>
>
> On Tue, Jan 26, 2016 at 6:20 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
>
>> Happy New Year, George.
>
>>
>
>> We have checked with Professor Swaine and are expecting a draft 
>> document very soon, possibly later this week. As soon as we receive 
>> it we will be back in touch with the WG.
>
>>
>
>> Best, Philip
>
>>
>
>> Philip S. Corwin, Founding Principal
>
>> Virtualaw LLC
>
>> 1155 F Street, NW
>
>> Suite 1050
>
>> Washington, DC 20004
>
>> 202-559-8597/Direct
>
>> 202-559-8750/Fax
>
>> 202-255-6172/cell
>
>>
>
>> Twitter: @VlawDC
>
>>
>
>> "Luck is the residue of design" -- Branch Rickey
>
>>
>
>>
>
>> -----Original Message-----
>
>> From: gnso-igo-ingo-crp-bounces at icann.org
>
>> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George
>
>> Kirikos
>
>> Sent: Tuesday, January 26, 2016 6:16 PM
>
>> To: gnso-igo-ingo-crp at icann.org
>
>> Subject: [Gnso-igo-ingo-crp] Any update on Swaine report?
>
>>
>
>> Hi folks,
>
>>
>
>> Happy New Year.
>
>>
>
>> It's been a while, so I just wanted to see if we have any 
>> news/updates regarding the Swaine report?
>
>>
>
>> Sincerely,
>
>>
>
>> George Kirikos
>
>> 416-588-0269
>
>> http://www.leap.com/
>
>> _______________________________________________
>
>> Gnso-igo-ingo-crp mailing list
>
>> Gnso-igo-ingo-crp at icann.org
>
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>
>>
>
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