[Gnso-igo-ingo-crp] MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 24 August 2017

Thu Aug 24 19:04:43 UTC 2017

Dear All,

Please find the attendance and MP3 recording along with the AC recording and
chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held
on Thursday, 24 August 2017 at 16:00 UTC.

Mp3:  https://audio.icann.org/gnso/gnso-igo-ingo-crp-access-24aug17-en.mp3

AC Recording:  (unavailable for this meeting)

The recordings and transcriptions of the calls are posted on the GNSO Master
Calendar page:  <https://gnso.icann.org/en/group-activities/calendar>
https://gnso.icann.org/en/group-activities/calendar

Attendees:

George Kirikos

Petter Rindforth

Paul Tattersfield

Phil Corwin

Jay Chapman

Poncelet Ileleji

  Apologies:   

 none

ICANN staff:

Mary Wong

Steve Chan

Berry Cobb

Dennis Chang

Terri Agnew

** Please let me know if your name has been left off the list **

Mailing list archives:  <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/>
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/

Wiki Agenda page:    <https://community.icann.org/x/mwghB>
https://community.icann.org/x/mwghB

Thank you.

Kind regards,

Terri

-------------------------------

Adobe Connect chat transcript for Thursday, 24 August 2017    

  Terri Agnew:Welcome to the IGO-INGO Access to Curative Rights Protection
Mechanisms Working Group call on Thursday, 24 August 2017 at 16:00 UTC for
90 minutes 

  Terri Agnew:agenda wiki page:
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_m
wghB
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_
mwghB&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCI
gmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c
&s=1dWgeTqCLgkHFz__1OE2V95T3xcGpGgtiWh-RtwFThg&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c&s=1d
WgeTqCLgkHFz__1OE2V95T3xcGpGgtiWh-RtwFThg&e= 

  George Kirikos:Hi folks.

  Steve Chan:Hi Terri. Still need to join the bridge :)

  Petter Rindforth:Not sure that you can hear me today, but I am online and
can hear you, so at least I'll use the chat

  George Kirikos:No dial-in Petter?

  Petter Rindforth:Travelling

  Petter Rindforth:And spell you name online, instead of saying it 3-4 times
before you will be connected

  George Kirikos:Exactly, Petter.

  George
Kirikos:https://www.pcauthority.com.au/News/471400,microsofts-speech-recogni
tion-engine-is-as-good-as-a-person.aspx

  George Kirikos:Perhaps blast out an email reminder, to get the stragglers?
:-)

  Mary Wong:Apologies, I was on anotehr call that ran slightly over

  George Kirikos:First 2 pages are just historical, so it's actually
shorter.

  George Kirikos:Also, pages 15 & 16 aren't controversial.

  Mary Wong:@George, and there are also page breaks between sections :)

  George Kirikos:Exactly, Mary. :-)

  Mary Wong:Note that much of the entries were retained from the earlier
June version, with additions based on the WG's subsequent deliberations,
especially on the newer Options. Please refer to the redline version to see
the differences.

  Paul Tattersfield:There's one going to the Supreme Court at the momment 5
years after the initial UDRP

  Mary Wong:Disadvantage #2 should also be read in context of #3

  George Kirikos:Forfeiting the UDRP outcome, right.

  Mary Wong:We meant it as an illustration, to elicit more specific notes on
what the benefits are to both sides.

  George Kirikos:https://www.icann.org/resources/pages/policy-2012-02-25-en
(see 4(k))

  Petter Rindforth 2:I agree that it is important to try to make our
recommendations without changing UDRP/URS, in order also to finalize without
waiting for the WG dealing with UDRP, etc (starting that phase in the near
future...)

  George Kirikos:@Petter: Each option would change the UDRP/URS, but only in
a minor aspect (i.e. 4(k)), which only affects how the registrar enforces
the decision, if the court case has that immunity issue.

  George Kirikos:So, from the point of view of NAF/WIPO/etc, the policies
won't change at all under Options 1 or 2.

  Paul Tattersfield:I beleive if an IGO initiated an action in any other
forum other than UDRP they would have to waive immunity

  George Kirikos:Yes, #7 didn't make sense to me either.

  Mary Wong:@Paul, to go to court, yes; and that is also why it is important
to recall (as Phil has noted) that by submitting to Mutual Jurisdiction, an
IGO is likely in some jurisdictions to be deemed to have waived its immunity
as well.

  Paul Tattersfield:Wouldn't the mutual jurisdiction clause be less onerous
as it is only a wavier of jurisdictional immunity? 

  Berry Cobb:Yes

  Mary Wong:@Paul, that's true too. Again it comes down to a matter of
strategic choice for any complainant, in this case, IGOs.

  Berry Cobb:And if it proves difficult to fill out, it can be removed
before import into the final report.

  Mary Wong:@George, we did not attempt to capture all possible costs and
impacts - we had thought the WG could complete the exercise. We certainly
did not intend to present a complete, closed, one-sided case. As Berry
mentioned, this is more of a qualitative exercise so staff did not feel it
appropriate to do more than present a starter draft.

  Petter Rindforth 2:Although that is not likely to be used by IGO's, as we
know from their comments (= using third party, etc)

  Paul Tattersfield:I think it's helpful even if it's not exhasutive

  George Kirikos:Calling "More consistent with the requests from the GAC and
IGOs" a benefit.....is kind of weak.

  George Kirikos:This "disadvantage" is the same as option #1, so it's not a
biggie.

  Mary Wong:@George, note that while the GAC supported arbitration, it was
not for the scenario where an IGO would still have to prove immunity in a
court.

  Paul Tattersfield:Was anyone around when WIPO went for ADR rather then
Arbitration for UDRP?

  George Kirikos:https://www.icann.org/resources/pages/policy-2012-02-25-en
Paragraph 9 already handles that, Phil.

  George Kirikos:9. Policy Modifications. We reserve the right to modify
this Policy at any time with the permission of ICANN. We will post our
revised Policy at <URL> at least thirty (30) calendar days before it becomes
effective. Unless this Policy has already been invoked by the submission of
a complaint to a Provider, in which event the version of the Policy in
effect at the time it was invoked will apply to you until the dispute is
over, all such changes will be binding upon you with respect to any domain
name registration dispute, whether the dispute arose before, on or after the
effective date of our change. In the event that you object to a change in
this Policy, your sole remedy is to cancel your domain name registration
with us, provided that you will not be entitled to a refund of any fees you
paid to us. The revised Policy will apply to you until you cancel your
domain name registration

  Petter Rindforth 2:I think it is the second - UDRP is mentioned as an
example in the contracts

  George Kirikos:Sound is good.

  Mary Wong:@Phil, @George - because Option 1 would render a substantive
decision void without there being judicial scrutiny. But as noted, staff
supporting this group are not legal process experts.

  Paul Tattersfield:Can we make it so all aribitration documents are to be
published? 

  George Kirikos:But not better than Option #1 from registrants' point of
view.

  Paul Tattersfield:Given this is a third party initiated action, would a
clause in a contract between a registrar and a registrant binding the
registrant to arbitration be even enforceable? 

  Jay Chapman:I would like to speak, Phil, after the impact analysis

  Jay Chapman:I need to dial in

  Mary Wong:@Paul, that is the point I was trying to describe a few minutes
ago.

  Petter Rindforth 2:I agree that Opt 2 is good for registrants, more
legally sure as the case can be treated independent of immunity claim, but
it is also better for IGOs than Opt 1

  Petter Rindforth 2:Meaning "domain holder"

  Berry Cobb:@Phil - was only an example, not definitive.

  Mary Wong:@Paul - following up, meaning that it can be a question whether
a "pass through" obligation for the Registrar to include agreement to the
UDRP in all its registration agreements is enough to bind a registrant to
arbitration thereby.

  Paul Tattersfield:I'm thinking it could possibly be even more problematic
where the registrant is a consumer rather than a professional registrant
especially in European jurisdictions?

  Jay Chapman:Can't find the dial in number, so here it is:  Phil, If an
additional arbitration existed, and before even assessing the merits of
registrants rights vs. IGO immunity, I have little doubt that a court would
be, at the very least, tempted, and perhaps on average, inclined to use the
additional arbitration's existence as a basis to punt the case away.  That's
a reasonable , legitimate concern for registrants

  Jay Chapman:and a disadvantage for option 2

  Mary Wong:@Jay, would you like us to dial out to you?

  George Kirikos:That's an important point.

  George Kirikos:i.e. adding Option 2 makes it more likely that a court
would find "immunity".

  Paul Tattersfield:Emirates case in the UK

  George Kirikos:He's typing.

  Paul Tattersfield:It bars UK rcitizens from bringing cases 

  George Kirikos:Hit "enter" to split your longer thoughts into multiple
lines. :-)

  Paul Tattersfield:my machine is to slow carry on I'll tyoe it in the chat

  George Kirikos:So, Option #3 is advocating for "quasi in rem" jurisdiction
of the courts, essentially, only in relation to the domain's outcome.

  Petter Rindforth 2:Can be combined with Opt 2 

  George Kirikos:Or Option #1. :-)

  Petter Rindforth 2:It is not sure that the court will accept it

  Paul Tattersfield:Here is a good summary of the Emirates case
https://urldefense.proofpoint.com/v2/url?u=https-3A__www.brownejacobson.com_
about-2Dus_news-2Dand-2Dmedia_published-2Darticles_2012_04_toth-2Dv-2Demirat
es
<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.brownejacobson.com
_about-2Dus_news-2Dand-2Dmedia_published-2Darticles_2012_04_toth-2Dv-2Demira
tes&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgm
kXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c&s
=xaYV3QOQW6kUPWmKZulXorZHJdI5V3uwtjtgpB3ZLL8&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=DRrtrcDBDQalY6Ukrlcc-YwNwqJb92yqK8p5KQ0tX3c&s=xa
YV3QOQW6kUPWmKZulXorZHJdI5V3uwtjtgpB3ZLL8&e= 

  Petter Rindforth 2:Adding it to option 2 is a better solution

  George Kirikos:Option #3 gives something to IGOs, and Option #1 gives
something to registrants, so it balances things out.

  Petter Rindforth 2:If the parties involved are identified, I agree. And to
add it to option 2 will likely also make the arbitration phase more rare

  Paul Tattersfield:I don't think 3 really adds anything that isn't already
there

  George Kirikos:Page 11. Only 4 pages left.

  George Kirikos:It would also make vitiating more rare, too, in option #1.

  George Kirikos:Option #1 for existing domains, option 2 for newly created
domains, yes.

  George Kirikos:Option #5 has a wrong premise, so not much discussion
needed.

  Petter Rindforth 2:I think we can in fact delete this option by now

  George Kirikos:Canada/USA would.

  George Kirikos:So, that would cover .com, at the registry level. i.e. all
important domains.

  Petter Rindforth 2:Mary's hand is up - probably because we asked for ICANN
internal legaL OCMMENTS

  George Kirikos:UK, common law (since many countries descend from those
common law principles).

  George Kirikos:I think even civil law countries would recognize it, e.g.
from admiralty law.

  Petter Rindforth 2:"legal comments"- Mary, is there a possibility to get
legal input on this issue withoiut extending our time?

  Paul Tattersfield:Perhaps we should change the mutual jurusdiction clause
to registry,registrar,registrant jurisdictions

  George Kirikos:https://www.icann.org/resources/pages/policy-2012-02-25-en
(4k)

  Mary Wong:@GEorge, the question is whether those courts outside US/Canada
would recognize domain names as proper subjects for in rem actions.

  Petter Rindforth 2:I am not so sure that it can be generally used in
Europe

  Mary Wong:@Petter, thanks - yes, that was one of the concerns I tried to
note. 

  Mary Wong:@Petter - are you asking about external legal advice on this
option?

  Paul Tattersfield:Could we recommend the RPM WG to look at it?

  Petter Rindforth 2:No, I refer to a couple of questions discussed - it
think - at last meeting, that perhaps could be investigated by your own
internal legal "experts"

  Mary Wong:Not international law, but national laws in differet countries
about recognizing domain names under in rem actions. 

  Terri Agnew 2:@Phil, your apology is noted for next week

  Terri Agnew 2:IGO-INGO Access to Curative Rights Protection Mechanisms
Working Group call will take place on Thursday, 31 August 2017 at 16:00 UTC
for 90 minutes 

  George Kirikos:Perhaps next call we call on each person to see which
options they support, maybe on a 5 point scale?

  George Kirikos:(strongly support, support, neutral, do not support,
strongly oppose)

  George Kirikos:"do not support = oppose"

  George Kirikos:Bye folks.

  Paul Tattersfield:Bye all

  Petter Rindforth 2:It will be very productive!

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20170824/b56524b9/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: smime.p7s
Type: application/pkcs7-signature
Size: 5018 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20170824/b56524b9/smime-0001.p7s>