[Gnso-igo-ingo-crp] Option #6 reminder

Wed Dec 6 14:29:01 UTC 2017

George:

As stated in it, my purpose in sending the email was "to make sure that your proposal gets thorough review and fair consideration".

If you believe that "everyone understands what the proposal is" then we can proceed to discussing it on our next call when you raise it, as I presume you will.

Best, Philip

Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

-----Original Message-----
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George Kirikos
Sent: Wednesday, December 06, 2017 7:49 AM
To: gnso-igo-ingo-crp at icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Option #6 reminder

I notice I hadn't responded to this email yet. Briefly, I think everyone understands what the proposal is --- getting the exact wording correct is an *implementation* issue, not a policy issue.

Furthermore, I don't agree that we should limit ourselves only to policy recommendations specific to IGOs -- it would create somewhat absurd situations. Indeed, Phil has previously criticized Option A is that it singled out IGOs for "disparate treatment", see middle of http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000921.html
-- that email didn't make it to the entire list, but was included in my reply, namely:

"That language made clear to me that Option 1/A would single IGOs out for disparate treatment in the UDRP....."

a criticism that applies equally well to Option 2/C by the way, or to Option 6 if Phil wants it to be focused on IGOs alone --- only because we're being *asked* by some to tailor it only to IGOs!

Indeed, in a different email, Phil claimed:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000945.html

"In regard to "UDRP policy changes are beyond our remit", that is incorrect."

A policy fix like Option #6 would help ensure that the UDRP is robust to more situations, including disputes involving IGOs..

Going back to the metaphor of a "software bug fix", suppose we were a working group doing a code audit of MIcrosoft's French-language version of Windows 10. If during that audit we discovered a software bug that affected *all* versions of Windows (not just the French language version), what would we do?

Some people seem to suggest we should write code like: (pseudo code)

(a) IF (this is the French Language Version of Windows 10) THEN (FIX THE BUG);
     ELSEIF (this is NOT the French Language Version of Windows 10) THEN (DO NOTHING);

That would be bizarre, in my view.

Our solution should be simple and elegant:

(b) FIX THE BUG  (for all Windows versions)

Indeed, the criticism that the solution (b) above is "overbroad", and that solution (a) is somehow more desirable wouldn't make any sense.
(b) is as broad as it should be, as it completely fixes the problem whereas (a) would be needlessly narrow.

Sincerely,

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

On Tue, Nov 28, 2017 at 3:12 PM, Corwin, Philip <pcorwin at verisign.com> wrote:
> George:
>
>
>
> This email is in my co-chair capacity.
>
>
>
> I have clicked on the pipermail link your provide and find this
> (excerpt) as your proposal—
>
>
>
>                 paragraph 4(k) of the rules:
>
>
>
>
> https://www.icann.org/resources/pages/policy-2012-02-25-en
>
>
>
> only specifically contemplates "in personam" court cases brought by
>
> the UDRP respondent (domain owner) against the party who filed the
>
> UDRP (i.e. the UDRP complainant). The relevant part of paragraph 4(k)
>
> is:
>
>
>
> "We will then implement the decision unless we have received from you
>
> during that ten (10) business day period official documentation (such
>
> as a copy of a complaint, file-stamped by the clerk of the court) that
>
> *****you have commenced a lawsuit against the complainant in a
>
> jurisdiction to which the complainant has submitted****** under
>
> Paragraph 3(b)(xiii) of the Rules of Procedure. "
>
>
>
> (emphasis added, via the asterisks)
>
>
>
> However, if the wording was changed very slightly, it would clarify
>
> the situation with regards to "in rem" and/or "quasi in rem" suits,
>
> i.e. the language in the asterisk section above could become:
>
>
>
> "you have commenced a lawsuit ***concerning the domain name**** in a
>
> jurisdiction to which the complainant has submitted"
>
>
>
> i.e. by changing "against the complainant" to "concerning the domain
>
> name", the latter language would cover not only in personam actions
>
> brought against the UDRP complainant, but also cover both in rem and
>
> quasi in rem actions too.
>
>
>
> [Aside: the language of the UDRP is actually very poorly worded; by
>
> the language of 4(k) as it stands now, it doesn't even say that the
>
> lawsuit against the UDRP complainant even needs to relate to the
>
> domain name under dispute! i.e. you could sue for *any* cause of
>
> action, even unrelated to the domain name, and by a strict reading of
>
> the 4(k) language, the registrar has to not implement the decision!
>
> We'll need to fix that in 2018 or 2019 or beyond, in the RPM working
>
> group PDP...] (Emphasis added)
>
>
>
> I want to make sure that your proposal gets thorough review and fair
> consideration.  But the language you have proposed would apply to all
> UDRP disputes, not just those in which an IGO was the Complainant, and
> as such is beyond the scope of this WG’s Charter (as you observe, this
> UDRP language can be reviewed by the RPM Review WG when it reaches phase 2 of its effort).
>
>
>
> To cure that overbreadth, would it be possible for you to present your
> proposed language as IGO-specific, either as an amendment to Option C
> as it was presented in our preliminary consensus call, or as a
> free-standing option? I think that would best assist the WG in fully considering it.
>
>
>
> Our likely agenda this week will be on portions of the draft final
> report on which we have broad consensus, so you would have until at
> least next week before this would be a germane topic for WG discussion.
>
>
>
> Thanks.
>
>
>
> Best regards, Philip
>
>
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
>
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
>
>
> "Luck is the residue of design" -- Branch Rickey
>
>
>
> -----Original Message-----
> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org]
> On Behalf Of George Kirikos
> Sent: Monday, November 27, 2017 4:45 PM
> To: gnso-igo-ingo-crp at icann.org
> Subject: [EXTERNAL] [Gnso-igo-ingo-crp] Option #6 reminder
>
>
>
> At the last call, I was asked to resubmit Option #6 for discussion.
>
> One can read the original proposal at:
>
>
>
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html
>
>
>
> Conceptually, it's very simple. While other options consider what to
> do if one gets into the "special situation" we've discussed at length,
> this option is different because it would reduce the number of those
> special situations, by attempting to avoid the special situation entirely.
>
>
>
> The domain name owner mitigates the problem by suing "in rem" against
> the domain name itself, where the IGO isn't a named defendant and thus
> can't assert immunity at all.
>
>
>
> Option #6 simply modifies 4(k) of the policy, which currently requires
> that the registrar should lock the domain name if a case is brought
> against the UDRP complainant (i.e. "in personam"), to lock the domain
> name if any case is brought concerning the domain name dispute (in rem
> or in personam). The only effect of Option #6 is to require the
> locking in that situation (in rem
> suit) --- a domain name owner could already sue in rem if they wanted
> to, but it's uncertain whether or not a registrar would lock the
> domain name if they did so. Option #6 removes that uncertainty.
>
>
>
> This would actually be consistent with the first part of 4(k), which
> didn't specify that the case needed to be brought against the
> complainant, i.e it only said:
>
>
>
> "The mandatory administrative proceeding requirements set forth in
> Paragraph
> 4 shall not prevent either you or the complainant from submitting the
> dispute to a court of competent jurisdiction for independent
> resolution before such mandatory administrative proceeding is
> commenced or after such proceeding is concluded."
>
>
>
> It was only later on that the language (sloppily, in my opinion)
> required it to be "in personam", not contemplating that one might
> submit the dispute to a court of competent jurisdiction in another manner.
>
>
>
> Section 18 of the UDRP "Rules" at:
>
>
>
> https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en
>
>
>
> actually contemplate any type of dispute (could be in personam, could
> be in rem), using the phrase "any legal proceedings....in respect of a
> domain-name dispute".
>
>
>
> Thus, Option #6 is entirely consistent with the spirit and intent of
> the UDRP rules, and simply fixes language that was overly restrictive
> due to oversight by the drafters of the policy.
>
>
>
> Sincerely,
>
>
>
> George Kirikos
>
> 416-588-0269
>
> http://www.leap.com/
>
> _______________________________________________
>
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>
> Gnso-igo-ingo-crp at icann.org
>
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