[Gnso-igo-ingo-crp] George Kirikos comments on July 2, 2018 draft final report, Part 1 (was Re: FOR REVIEW: Updated Draft Final Report)

Wed Jul 4 09:28:07 UTC 2018

Thanks Phil and George for your comments.

Let's discuss this further tomorrow, Thursday, with the aim to at least "extend" our time to be as late as ever possible on this upcoming Monday.

I will also personally provide a Minority Statement, and will only have on Monday to prepare and finalize that.

Best,
Petter

-- 
Petter Rindforth, LL M

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Thank you

3 juli 2018 22:58:02 +02:00, skrev George Kirikos <icann at leap.com>:

> Hi Phil,
> 
> 1. 23:59 UTC on July 9th, 2018 would be the apparent "deadline" (if we
> are bound by it), see:
> <https://mm.icann.org/pipermail/council/2018-July/021568.html>
> 
> 2. I join you in objecting to a Monday "deadline" for the minority
> reports. I intend to file one (and I believe Paul T might as well).
> It's difficult to be proposing changes to the current draft report,
> working to improve it until the "deadline" next week, while
> simultaneously trying to create an entirely separate minority report
> not having seen what the final report would be (after all changes are
> accepted).
> 
> 3. Real questions exist as to the legitimacy of the GNSO Council
> imposed "deadline". They even described it:
> 
> <https://static.ptbl.co/static/attachments/179639/1530018154.pdf?1530018154>
> 
> as "unprecedented" (page 4). That timeline might have been feasible
> had we received the latest draft report at the beginning of last week
> (as I wanted), rather than yesterday, and also had a call last week as
> I wanted (there was an open slot available on Wednesday, that we
> didn't get a chance to utilize). One can't change history, but I think
> GNSO Council needs to accommodate a realistic time schedule here,
> given the dates we've actually received documents. They should listen
> to yesterday's 3.7 appeal call (link provided yesterday at
> <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001343.html>
> ). Folks are trying to be reasonable (I gave 5 options yesterday), but
> tomorrow's a US holiday. I doubt all but a few members will actually
> have read the report by Thursday's call -- it's only natural (not to
> mention the World Cup!). Plus, Steve Chan is off this week, which
> means ICANN staff support is at half-strength, to handle revisions.
> 
> Indeed, GNSO Council's own rules for their own meetings give
> themselves *10 DAYS* advance notice of documents for their calls! It's
> a huge double-standard to expect us to read, analyze and revise that
> draft document (and there might need to be multiple revisions) to
> reach finality in a mere 7 days (only 6 days, now).
> 
> 4. As of right now, it doesn't appear any GNSO Councillor has
> submitted motions or documents for their July 19th call:
> 
> <https://mm.icann.org/pipermail/council/2018-July/date.html#21568>
> 
> so, if we're the only anticipated item on the agenda, it makes it
> easier for them to justify shifting it back by a week.
> 
> 5. If anyone else in this PDP actually starts reading the report
> before Thursday, you're a hero in my eyes, given the holidays, etc.
> Please post to the list if you've even started...(I'd expect a lot of
> silence!). I think that silence would give GNSO Council all the proof
> they need that their timeline is unrealistic.
> 
> Sincerely,
> 
> George Kirikos
> 416-588-0269
> <http://www.leap.com/>
> 
> On Tue, Jul 3, 2018 at 4:16 PM, Corwin, Philip <<pcorwin at verisign.com>> wrote:
> 
> > Without commenting on the merits of George's proposed edits -- and I have not yet had time to review them, so this should not be taken as any criticism or disagreement -- but noting that they are just the first round of several that he will submit, and that other WG members may also propose edits.
> > 
> > And further noting that the submission deadline for the Final Report to Council is July 9th (time not specified in Mary's email, but I presume it is 23:59 UTC next Monday).
> > 
> > I wish to hereby state an objection to the proposed deadline for submission of Minority Statements by 1200 UTC (8 am Eastern Time US) on July 9th. Many of us are still digging out from last week's Panama ICANN 62 meeting as well as involved in following up on key matters with near-term deadlines such as the draft EPDP Charter on GDPR compliance. Tomorrow is a national holiday in the USA. And it is unlikely that we will have the full text of a Final Report approved by the conclusion of our Thursday call -- I suspect it will be undergoing revisions right up to the July 9th deadline.
> > 
> > So WG members are essentially being asked to submit any Minority Statements by a deadline that will likely occur before a Final Report text is locked down.
> > 
> > I believe that GNSO procedures as well as precedent provide the possibility of submitting a Final Report to Council by the document submission deadline that contains a placeholder section for Minority Statements. I therefore propose that the deadline for submission of Minority Statements be set at 1600 UTC (12 Noon ET) on Friday, July 13th. This will allow all WG members who wish to file to have several days to review the submitted Final Report; while assuring that any such statements are conveyed to Councilors six days before the next Council meeting, allowing more than sufficient time for review by those Councilors who wish to take them into account when considering the Final Report.
> > 
> > If this matter is still open as of Thursday's call I shall repeat these points orally.
> > 
> > Thank you, and Happy Fourth of July to all US-based WG members.
> > 
> > PS--While I have no say in the matter, I believe it is extremely unlikely that Council will postpone its meeting from July 19th to 26th due to the desire to have a near-term fallback date for any Council decisions regarding the launch of the GDPR EPDP. So I don't see the document submission deadline slipping.
> > 
> > 
> > 
> > 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: Tuesday, July 03, 2018 3:51 PM
> > To: <gnso-igo-ingo-crp at icann.org>
> > Subject: [EXTERNAL] [Gnso-igo-ingo-crp] George Kirikos comments on July 2, 2018 draft final report, Part 1 (was Re: FOR REVIEW: Updated Draft Final Report)
> > 
> > Hi folks,
> > 
> > Given time is of the essence, below are some comments after reviewing the first 17 pages of the July 2, 2018 draft final report. There will be more comments tomorrow and/or Thursday, but I thought I'd get these initial comments out early, so that staff and/or other PDP members can benefit from seeing them sooner rather than later. I would pay particular attention to comment #9 (others might want to carefully review the text, given that issue!).
> > 
> > (all page references relative to "Clean" version of July 22 draft, unless otherwise stated)
> > 
> > 1. page 5, "Note on Recommendation #2" -- I'm assuming the "insert relevant section/page" will be updated in a future draft? If it's just the relevant section (without a page number), that should be sufficient for it to not have to change between revisions. Same in a few other places. [i.e. I'd have expected these to have been filled out, as we get to a near-final report draft]
> > 
> > 2. page 5, Recommendation #3: it says that "ICANN Organization" shall create the policy guidance. In Recommendation #2 (page 4), the policy guidance is from "ICANN". I'm assuming both of these would be created via an Implementation Review Team (IRT), so I think the language of Recommendation #3 should be simply changed to "ICANN" (rather than "ICANN Organization"). i.e. we *don't* want ICANN staff to be creating the policy guidance -- it should be done via the IRT.
> > 
> > 3. page 7, "Note on Recommendation #5". "losing registrant notifies ICANN" -- should instead be that the losing registrant notifies the REGISTRAR. i.e. section 4(k) of the UDRP is between the registrant and the registrar:
> > 
> > <https://www.icann.org/resources/pages/policy-2012-02-25-en>
> > 
> > Same fix required later in the same paragraph. "ICANN will take no action" should be changed to "Registrar will take no action".
> > 
> > 4. while this was supposed to be the "clean" version of the document, Recommendation #4 (page 5 and page 6) and Recommendation #5 (page 7) seem to have some remnant notes in the right column and formatting taken from the "redline" version. Same on page 12 (and elsewhere).
> > 
> > 5. page 10, 2nd paragraph "to not recommend any substantive changes to the UDRP or URS at this time". Since some debate whether changes to
> > 4(k) are "substantive", etc., perhaps change the phrasing to match the language in the prior paragraph, i.e. "would be to not modify any of the substantive grounds of the UDRP or URS at this time." (since "substantive grounds" would refer to the specific portions of the UDRP/URS that we're not changing) This would also be more consistent with Recommendation #1's language re: "substantive changes" (which we did *not* apply to IGOs)
> > 
> > 6. page 10, recommendation #1, "initial conclusion" can be simplified to be "conclusion" (2nd last paragraph of that page) given where we are now.
> > 
> > 7. page 10, recommendation #1: last paragraph seems to repeat much of the same language of the immediately prior paragraph. I would simply rewrite it as: "In relation to INGOs, the following is the Working Group’s rationale for its conclusion:" (i.e. get rid of the last 3 lines of text). If this is done, then footnote 4 needs to be moved, perhaps to the word "rationale" from its current position.
> > 
> > 8. page 11, paragraph #3 " issue of ICANN subsidizing INGOs to utilize DRPs is outside the scope of the Working Group’s Charter" Is that correct? Because arguably the "scope" of the charter included (from bottom of page 5) "as well as the Charter language requiring the Working Group to consider “the need to address the issue of cost to IGOs and INGOs to use curative processes”, I'm not sure how best to rephrase it, but it might be something to consider modifying slightly.
> > 
> > 9. pages 13-14: Recommendation #2. This does *not* appear to be an exact copy/paste of the recommendation from earlier in the document (pages 4-5). They should be word-for-word identical, but they're not.
> > e.g. on page 14, first line, it says "service rights" instead of "service mark rights". On page 13, it says "does not have trademark or service rights", but it should be "does not have REGISTERED trademark or service MARK rights"
> > 
> > Obviously we can't have different language for the recommendations in different sections of the document -- they need to be identical. If it happened to this recommendation, it might be a problem elsewhere in the document too. I can't check everything, so hopefully others are watching for this when reviewing these documents.
> > 
> > 10. page 15, paragraph 1: "The Working Group believes that an IGO’s reliance on its compliance with the Article 6ter procedure for the limited purpose of demonstrating standing will not necessarily result in an increased number of complaints.." This seems to be the language from an older report, where the recommendation was different. So, that was our OLD belief. So, perhaps it needs to change to something like:
> > 
> > "Initially, the Working Group believed that …."
> > 
> > and then it would flow with the rest of the page, i.e. 2 paragraphs later it talks about how we got specific comments, etc. after the initial recommendations. The 2nd paragraph seems to have changed things correctly already (i.e. used language such as "believed", "originally considered", etc).
> > 
> > 11. page 15, paragraph 1: same as argument as point #10 above, where it says "The Working Group also believes…" These were our older beliefs, which we've changed.
> > 
> > 12. page 15, paragraph 3: consider changing "equalizing" in line 3 to "elevating"
> > 
> > 13. page 16, recommendation #3: There is no reasoning or rationale here! This section needs to be beefed up and expanded considerably.
> > The word "assignee" appears only 5 times in the entire document (and those other places don't really elaborate much). I would at least:
> > 
> > i) reuse the language from page 21, i.e. it's "a potential means of insulating themselves against any direct concession on mutual jurisdiction." (fixing the typo on page 21 for "jurisdiction)
> > 
> > ii) point to relevant text in the WIPO overview, e.g.
> > <http://www.wipo.int/amc/en/domains/search/oldoverview/#18>
> > 
> > iii) Note that an IGO has *already* successfully used this procedural workaround, i.e. the UNITAID case, see:
> > 
> > <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/date.html>
> > <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/000221.html>
> > <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/000220.html>
> > 
> > iv) reference the appropriate section from the Swaine report that also mentioned it.
> > 
> > 14. page 17, recommendation 4: important to emphasize in the supporting language (not just in the recommendation) that any subsidies should not create an uneven playing field between complainants and respondents. Something like:
> > 
> > "Furthermore, many Working Group members believe expressed concern that subsidizing a complainant might create an uneven playing field between complainants and respondents. Thus, in the event that a complainant receives financial support, the respondent should also receive financial support for its defense."
> > 
> > Or words to that effect.
> > 
> > More to come later. I'm expecting many comments re: Recommendation 5, so the above was a good place to stop for now.
> > 
> > By the way, with regards to "Minority Statements", must they be in Word Format? Why not PDF? (since they're not reviewed/edited, they can then be merged using various tools that merge PDFs, or simply kept as separate standalone PDFs?)
> > 
> > Would also be nice to know whether staff or Petter had heard back from GNSO Council / Heather / Susan re: ideas for adjust our timeline, as per yesterday's call (i.e. if they moved the GNSO Council call back a week, that would give us more time; or if they made a special meeting between the scheduled July/August calls). Because, I think it'll be very hard to be done by Monday....would be nice to hear from them
> > *before* Thursday's call (rather than leaving it until after Thursday's call, when there's no limited time before the Monday "deadline").
> > 
> > Sincerely,
> > 
> > George Kirikos
> > 416-588-0269
> > <http://www.leap.com/>
> > 
> > 
> > 
> > On Mon, Jul 2, 2018 at 7:10 PM, Mary Wong <<mary.wong at icann.org>> wrote:
> > 
> > > Dear Working Group members,
> > > 
> > > 
> > > 
> > > Staff has posted copies, in both Word and PDF formats, and in both
> > > redlined and clean versions, of the updated Draft Final Report for
> > > your review on the Working Group wiki space:
> > > <https://community.icann.org/x/UoVHBQ.> You will also find links to the
> > > most recent GAC Communique (from ICAN62 in Panama last week), that
> > > includes advice to the ICANN Board concerning our PDP, as well as the
> > > GNSO Council’s resolution also from Panama, requesting that we
> > > complete our Final Report by 9 July 2018 (the document deadline for
> > > the Council’s July meeting). We have done our best to capture what we
> > > believe to be the most current and agreed text, especially of the
> > > specific recommendations and consensus levels, but remain ready to make further updates and corrections as may be needed.
> > > 
> > > 
> > > 
> > > Please note the following:
> > > 
> > > Please limit your suggestions for edits and corrections to substantive
> > > matters (e.g. errors of substance) rather than formatting, typos,
> > > preferred word usages/phrasing, or grammar (unless there are egregious
> > > errors). This will allow us to complete our work as expeditiously as
> > > possible, as seems to be expected by the GNSO Council.
> > > Please do not send back redlines of the document, as it can be
> > > difficult to track and capture multiple versions. Instead, please send
> > > your comments via email to this mailing list so that staff can make
> > > sure all substantive comments are noted and addressed.
> > > The redline was done against the last version of the draft that was
> > > circulated (i.e. the 11 May document). The redlined changes that you
> > > see are therefore either new additions, corrections or modifications
> > > of the text from 11 May, for which members had been asked to submit comments by 22 May.
> > > Please therefore do not suggest further edits to the non-redlined text
> > > unless you see egregious errors that were not previously spotted
> > > (especially as much of the 11 May 2018 text was retained from the
> > > January 2017 Initial Report).
> > > We have added a few comment boxes to indicate where and why certain
> > > insertions/changes were made (especially as regards rationale and
> > > specific suggestions made either to the 11 May document or on the
> > > recent Working Group calls).
> > > We have also updated the GAC advice to include the GAC’s most recent
> > > Communique, issued last week in Panama City.
> > > We have not included references to the recent and ongoing appeal filed
> > > by George under Section 3.7 of the GNSO Working Group Guidelines, as
> > > that process has so far proceeded separately from the Working Group’s
> > > final deliberations – but please let us know if this should be added.
> > > 
> > > 
> > > 
> > > Process for filing Minority Statements:
> > > 
> > > As minority statements are not reviewed or edited by the Working Group
> > > or staff, they can be sent in any time. For purposes of meeting the
> > > Council’s requested deadline, however, it will be helpful if you can
> > > send to staff any minority statement that you may wish to file in Word
> > > format by 1200 UTC on Monday 9 July.
> > > 
> > > 
> > > 
> > > Our understanding is that Petter would like to discuss, and hopefully
> > > attain agreement on, any substantive errors or omissions in the report
> > > at our meeting this Thursday, 5 July. As such, please be sure to
> > > review the redlined changes before the call if you can. We apologize
> > > for the short notice, as the ICANN62 meeting last week made it
> > > impossible for us to complete the draft before today. (NOTE: If you
> > > wish to focus on the major substantive issues, you may wish to begin
> > > your review with Section 1.2 (pages 3-7 of the redlined Word version)
> > > and a portion of Section 2.1.1 (pages 10- 22 of the redlined Word
> > > version).)
> > > 
> > > 
> > > 
> > > 
> > > 
> > > Thank you.
> > > 
> > > 
> > > 
> > > Best regards,
> > > 
> > > Mary & Steve
> > > 
> > > 
> > > 
> > > 
> > > 
> > > 
> > > _______________________________________________
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