[Gnso-igo-ingo-crp] George Kirikos comments on July 6, 2018 draft, Part 1 (was Re: FOR REVIEW: Updated Draft Final Report)

Sat Jul 7 12:00:09 UTC 2018

Adding to my earlier comments,

8.After reviewing the transcript (and recording) of Thursday's call
(page 21), there seems to have been miscommunication as to Option #1
(page 19 of the Redline July 6 PDF)

On page 21 of the transcript
(https://gnso.icann.org/sites/default/files/file/field-file-attach/transcript-igo-ingo-crp-access-05jul18-en.pdf)
I said "So, but the improved text that was discussed on the mailing
list doesn't have this issues, so I don't think -- so I think Phil's
concern has been met."

So, I didn't support simple removal of the entire 2nd sentence without
replacement (as has been done), but instead supported the improved
text that had been discussed on the mailing list:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001361.html

"Similarly, where an IGO chooses to assert an immunity defense against
a registrant's claim in court and succeeds in avoiding a decision
based on the underlying merits of the dispute, the UDRP or URS
determination should be set aside so that both parties are in the
exact same legal position they were prior to the UDRP or URS dispute
(with all rights of each side intact). This ensures that any
subsequent litigation is not prejudiced or interfered with by the UDRP
or URS determinations and that any litigation regarding the domain
name can truly be conducted on a de novo basis."

And as for the latitude of the Minority Reports, see the discussion on
page 19 of the transcript of Thursday's call:

"Petter Rindforth: Thanks. And, yes, I fully agree that -- to the best
of meeting, all of the deadlines, we have further comments,
it's good to -- or more practical to have in the minority report where
everybody also can use their own free text so to speak describing it."

or on page 32:

"Philip Corwin: All right. Well, I'd like to see it in a redline. It
might be something that's better put in a minority statement"

(in relation to new text that was desired to be added to beef up
recommendations' supporting text)

and thus we shouldn't be restricted at all in our Minority Reports, as
there's just too much material that should be added to the main
report, but there's not enough time to do so by Monday. The only
option that makes sense (if the imposed "deadline" is going to be kept
and not modified to something more realistic) is to place all that
material into Minority Reports.

Sincerely,

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

On Fri, Jul 6, 2018 at 10:53 PM, George Kirikos <icann at leap.com> wrote:
> Before I list some comments, I want to repeat for the record that this
> has been an abysmal process, trying to complete a final report on a
> truncated timeline that only a handful of members (at best) have ever
> read, let alone had sufficient time to consider what needs to be
> *added*, beyond what needs to be *changed*. See my earlier email of
> this evening with regards to how wide a latitude is required for the
> scope of Minority Reports, in light of this. Can't spend infinite
> amount of time "negotiating" text changes with those holding the pen,
> and/or those who've never read the document, when it's more
> appropriate to simply write what needs to be said directly, via a
> Minority Report.
>
> I just did a quick pass only of "changed" text, and while I still have
> more comments on the document (including text that might have
> changed), especially with regards to whether we should put substantial
> additions into this document, or into Minority Reports, here are some
> initial comments:
>
> (page numbers are relative to the *Redline* version of the July 6,
> 2018 PDF draft, not the clean version)
>
> 1. page 7: first line, "his/her registrar"; change to "the registrar"
> (registrant might be a corporation or other entity, so using words
> meant for people like "his/her" don't capture that)
>
> 2. page 13: recommendation #2. I made this point before (point #9 of
> earlier email --
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001345.html
> ), and it's *still* not word for word exact! Instead of trying to
> change it word-by-word, leaving the opportunity for errors to exist,
> it should have been DELETED in it's entirety, and then copied/pasted
> from the first part of the document (where it was correct). In my
> prior point #10 notes, I gave examples of errors, but not all of them!
>
> What's still wrong?
>
> a) correct recommendation says "name and/or acronym" (vs "name or
> acronym" in line 6 of that part)
> b) correct recommendation says "service mark rights" (vs "service
> rights" in line 7)
>
> and maybe more! (I shouldn't have to be wasting time re-reading it,
> when it should be identical already). Just copy/paste from the prior
> *correct* version in the earlier part of the document!
>
> These are pretty basic errors that shouldn't be in a document at this
> stage, especially when it's already been pointed out! Not only have we
> needed to double-check staff's work output, but then we need to
> double-check or triple-check their attempts to fix things. Ridiculous.
>
> 3. all of point #18 made previously (now at page 22, though); if not
> all of it, at least point out that there have never been any appeals
> of the UDRP decisions involving IGOs. When we talk about "rare", we
> really do mean "rare", since it hasn't happened since the inception of
> the UDRP. Folks need to know that.
>
> 4. page 12, item #3: "to bring a case to a court of competent
> jurisdiction" -- "to have a de novo determination on the merits in a
> court of competent jurisdiction"   [simply bringing a case, that could
> then be killed on a technicality like immunity, isn't the same]
>
> 5. page 28, footnote 20: make it easier on the reader to find it in
> the Swaine memo. Unless the numbering has changed, it's footnote 5.
> [that's what it was when formatted for our January 2017 report, page
> 79] While the page number will change in this report, the footnote
> number shouldn't change (since it restarts from 1 in the Swaine
> section).
>
> 6. page 44, middle column "and no change to the URS" (Rec 5 Option #1
> does of course change the URS; change to "no change in substantive
> grounds to the URS" or whatever we've used before);
>
> 7. page 52, 2nd paragraph: all of prior point #30: this is still "fake
> news", since the so-called "consensus call" wasn't "in accordance with
> the GNSO's customary practice and pursuant to the GNSO's Working Group
> Guidelines." Take a close look at what I put forth before as proposed
> text (see below) which was quite *diplomatic* in describing accurately
> what happened, and what portions were omitted in the current staff
> version.
>
> This is exactly what I'm referring to when I talk about who is
> "holding the pen", and why there needs to be very liberal allowances
> for Minority Reports, to set the record straight.
>
> Here again is the proposed text for that paragraph:
>
> "Concerns were raised regarding the accuracy, transparency and
> inclusiveness of the Summary Report. After discussions on the mailing
> list, it became evident that more members of the PDP were willing to
> engage further on the remaining issues than originally was recorded,
> and that it might be feasible to reach consensus on all 5
> recommendations. The Working Group held meetings on 10 & 25 May 2018
> to further revise the language of the proposed recommendations. After
> the 25 May 2018 meeting, a two week process was started whereby PDP
> members were encouraged to share their views on the public mailing
> list with regards to all 5 recommendations (including the 6 options
> for Recommendation 5). On June 9, 2018, after reviewing the emails of
> the prior 2 weeks, the remaining Working Group chair (can keep the
> footnote referencing Phil's resignation), set the initial
> designations of consensus levels, consistent with the requirements of
> Section 3.6 of Working Group Guidelines for a Consensus Call. The
> Working Group held further meetings on 12 & 21 June 2018, and
> discussions on the mailing list, engaging in the iterative process of
> further revising the text of the recommendations and revising the
> designation levels to their final state (which was achieved on June
> 21, 2018), while also agreeing on the appropriate designations levels
> for the proposals that did not attain consensus."
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
> On Fri, Jul 6, 2018 at 5:13 PM, Mary Wong <mary.wong at icann.org> wrote:
>> Dear Working Group members,
>>
>>
>>
>> Staff has updated the 2 July draft Final Report that was discussed on our
>> call yesterday – the redline against that 2 July version (in both Word and
>> PDF formats) as well as clean versions of the latest (6 July) draft (in both
>> Word and PDF formats) have now been posted on the Working Group wiki space
>> for your review: https://community.icann.org/x/UoVHBQ.
>>
>>
>>
>> We have also included a redline of this latest 6 July draft against the
>> original draft Final Report that was circulated on 11 May.
>>
>>
>>
>> For your convenience, I also attach the redlined 6 July version (against the
>> 2 July version we used on yesterday’s call), in both Word and PDF formats.
>>
>>
>>
>> Please note:
>>
>> If you have substantive corrections or concerns, please post them to this
>> mailing list as soon as possible, so that we may try to resolve the issue
>> speedily via email and before the 23.59 UTC deadline on Monday 9 July for
>> submitting the report to the GNSO Council;
>> Staff will do our best to do another proof-reading pass-through before the
>> deadline, though we note that our focus will most likely be on correcting
>> any substantive errors you may spot in the current draft. We note also that
>> it will likely be possible to submit a reformatted version to the Council
>> with typos and grammatical mistakes corrected after the deadline (but not
>> substantive changes).
>> For Monday submission to the Council, we will insert the following
>> placeholder in Annex B (Minority Statements): “As of 9 July, the following
>> Working Group members had indicated that they plan to submit minority
>> statements: Mr. Philip Corwin, Mr. George Kirikos, Mr. Petter Rindforth”.
>> Please let the list know as soon as possible if your name is not listed and
>> you plan to also file a minority statement.
>> Minority statements should be limited to documenting your disagreement with
>> any of the final recommendations, along with your reasons for such
>> disagreement (including, if appropriate, your reasons for preferring a
>> different proposal/option).
>> Susan will revert with a proposed deadline for the submission of minority
>> statements – for the present, and subject to Susan’s views and report, staff
>> will suggest COB in your time zone on Thursday 12 July (to allow for the
>> updated annex to be sent to the Council before the end of the week).
>>
>>
>>
>> Thank you.
>>
>>
>>
>> Best regards,
>>
>> Mary
>>
>>
>> _______________________________________________
>> Gnso-igo-ingo-crp mailing list
>> Gnso-igo-ingo-crp at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp