[Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options

Wed Jun 6 15:46:22 UTC 2018

I agree with George on this.  How many times do we have to say the same
thing?  My position has not changed since the last time I was asked, or the
time before that.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Wed, Jun 6, 2018 at 7:43 AM, George Kirikos <icann at leap.com> wrote:

> Hi folks,
>
> It's unclear to me whether a response to this email is required, given
> many folks have already made their positions known on the various
> recommendations, and that already-provided feedback cannot simply be
> ignored. From my understanding of the working group guidelines, and
> looking at past PDPs, the consensus level designations were made at
> the *start* of the Consensus Call, accompanied by a draft final
> report. Then folks who disagreed (if any) would speak up, e.g. see
>
> (1) IRTP-D: https://forum.icann.org/lists/gnso-irtpd/msg00516.html
>
> "Based on the discussion during the last calls, the assumption is that
> there is consensus among the Group for all recommendations as they
> currently stand, meaning we anticipate only minor non-substaitve edits
> from here on out. If you do not agree with this statement and/or plan
> to submit a minority statement, please indicate this on the list or,
> at the latest, during our next meeting, Monday 15 September."
>
> (2) Privacy & Proxy PDP:
> https://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/2015-November/002196.html
>
> "As noted in the WG Work Plan, circulation of this updated document opens
> the
> period for the WG¹s consensus call. Following this, in accordance with the
> GNSO's WG Guidelines, the WG co-chairs will make a final evaluation of the
> consensus support levels and, if necessary, assign specific designations of
> such to each individual WG recommendation. Any minority statements must
> therefore also be submitted by that time. As noted in the WG Work Plan, the
> co-chairs plan to close the consensus call period by Monday 7 December
> 2015.
> Unless determined otherwise as a result of this consensus period, the
> recommendations are currently marked as Full Consensus of the WG."
>
> https://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/2015-December/002243.html
>
> "This is just a reminder that the consensus call for the Final Report of
> our
> work will close at 23:59 UTC on Monday 7 December 2015. As such, please
> email this list with your statement of support, or if there are objections
> to any of the final recommendations, your specific objection (and a
> minority
> statement if any), as soon as possible before that deadline.
>
> FYI and as noted previously, the WG chairs are responsible for designating
> consensus levels for each final recommendation. Since many of the
> recommendations have not changed from the preliminary recommendations that
> were published for public comment back in May, and as those few that have
> seen changes were modified based on WG discussion and agreement on the
> nature of the changes, the current designation in both the original and
> updated Final Report is one of Full Consensus.
>
> As such, if no objections are received before the deadline, the presumption
> will be that the WG consensus remains that of support for the final
> recommendations."
>
> By contrast, we've not yet seen the Draft Final Report for this PDP.
> Nor have there been initial designations of consensus levels
> specified. So, as I pointed out during our last call, while this has
> been labelled a "Consensus Call", I disagree with that terminology. To
> me, it appears to be another "pre-consensus" call for feedback, and
> the actual "Consensus Call" begins when the Chair makes the initial
> designations accompanied with a Draft Final Report.
>
> That being said, even if feedback is not required, it doesn't mean
> that continued feedback is not desirable to help refresh memories. My
> continuing feedback on the recommendations to date should be no
> surprise, but let me provide it again for the record.
>
> 1] Recommendation #1: I generally agree with the current draft text.
> However, let me be more precise. To the extent that recommendation #4
> makes changes to how a UDRP/URS decision is treated by registrars due
> to the procedural "quirk of process" we've identified, then those
> "changes" are permitted. i.e. some folks might perceive
> Recommendations #1 and #4 to be in conflict, depending on the meaning
> of "no changes". The "changes" that are made aren't being made to the
> 3-prong test, etc., but instead to how any decision should be dealt
> with in the event that the scenario which leads to the quirk of
> process is realized.
>
> 2] Recommendation #2: The modified text doesn't reflect my prior
> suggestion on how this recommendation should have been made more
> precise. See: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/
> 2018-May/001206.html
>
> I would phrase the relevant sentence as follows:
>
> "An IGO may consider this to be an option where it does not have
> registered trademark rights or service mark rights in its name or
> acronym (as applicable) but believes it has certain unregistered
> trademark or service marks rights for which it might adduce….."
>
> The way it's currently drafted (as of 25 May 2018), it's suggesting
> that an IGO can have other rights (i.e. other than trademark or
> service mark rights) that can be recognized by the UDRP/URS
> procedures. I believe that differs from the feedback we received
> during the public comment period, namely that the UDRP/URS remain
> procedures solely for trademark/service mark violations, i.e.
> cybersquatting, and not open up to any claimed "rights". When our
> first draft report was created and opened for public comments, we had
> proposed that Article 6ter terms be automatically given standing (i.e.
> meeting the first prong of the 3-prong test), i.e. that they were not
> just "evidence" but "proof" of trademark/service mark rights, but got
> pushback on that. By changing it to the language I propose above, we
> weaken it to simply "evidence" of (but not proof of) those
> trademark/service mark rights. But, my proposed language still
> circumscribes it to be trademark or service mark rights (i.e. the
> distinction is only between "registered" vs. "unregistered").
>
> In contrast, the May 25, 2018 draft opens it up to a vague definition
> of what rights can actually be enough to pass the first prong of the
> UDRP/URS. Indeed, as currently written, it even says (first part of
> the May 25 2018 draft language) that "An IGO may consider this to be
> an option where it ***does not have rights in a trademark or service
> mark***** ..... . In other words, it's proposing to expand the
> UDRP/URS for IGOs to non-trademark and non-service mark rights, which
> I believe is incorrect. We still want to keep it as trademark/service
> mark rights, but simply allow for registered vs unregistered
> scenarios.
>
>
> 3] Recommendation #3: I support. This PDP could have and should have
> ended years ago, when this workaround for IGOs was
> discovered/identified. See my email to the mailing list in December
> 2014 (that's not a typo; that's more than three and a half years ago):
>
> 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
>
> 4] Recommendation #4: As I noted in my public comments to the first
> draft report, I oppose subsidies to any group, on principle. Every
> group feels they are "special" in some way, and I've seen no objective
> test that says that IGOs should be treated differently than any other
> party to a UDRP/URS. Simply saying "in accordance with GAC advice" is
> not a reason, let alone a good reason, that justifies recommendation
> #4. If one simply obeys "GAC advice", that suggests PDPs aren't
> empowered to make their own decisions, which is not correct. In a
> multi-stakeholder model of internet governance, the GAC is simply one
> stakeholder whose self-serving (IGOs are observers to the GAC, and
> presumably had a hand in drafting this "GAC Advice") requests for
> financial subsidies without good justification should be rejected.
> IGOs don't receive subsidies when they use the courts. IGOs don't
> receive subsidies when they use ADR like mediation or arbitration. Why
> should the UDRP/URS be any different? IGOs are creatures created by
> governments. Even governments pay court costs and legal fees just like
> any other party to a dispute in offline courts (and face similar costs
> for staff and lawyers, photocopies and internet). I've not seen any
> good reason coming from the GAC other than "we want this" or the vague
> "it's in the public interest". Claiming it's "in the public interest"
> (without elaboration) can be used to justify many bad ideas, and this
> is yet another example of that.
>
> Some of these IGOs have enormous budgets (they're funded by
> governments, and ultimately taxpayers), and are in much stronger
> financial positions than nearly all respondents. If one was going to
> be objective about who "needs" funding, it's those who are objectively
> poorer --- and that's certainly not IGOs. Generally, it's the
> respondents who are financially at a disadvantage, compared with the
> IGOs.
>
> Thus, my position is that no one is entitled to these subsidies,
> simply because they want them. ICANN shouldn't be in the position of
> "Santa Claus", handing out subsidies to "favoured" groups, those who
> whine the loudest to ICANN. This is exactly why ICANN is facing a
> budget crisis (despite huge revenues compared to just a few years
> ago), because its expenses are out of control. Ultimately, directly
> or indirectly, all the revenue of ICANN comes from registrants. ICANN
> needs to start saying "No", and indeed should be severely cutting back
> on wasteful and unjustified spending, reversing some of its past
> mistakes (e.g. liberal travel subsidies, fellowship program, overpaid
> staff, etc.).
>
> Given a few folks in this PDP have called for this to be discussed
> further between the ICANN Board and the GAC/IGOs, I would strongly
> suggest that they establish an objective standard for financial
> support, rather than simply leaving it wide open for backroom
> discussions. There should also be specific quantitative limits (e.g.
> number or dollar amount per year per IGO) to limit the scope of any
> discussions. If subsidies made UDRP/URS decisions entirely free and
> unlimited for complainants, one could see the potential for costs to
> spiral out of control, and for abusive complaints to be filed.
>
> If we are to be engaging in evidence-based policymaking (and that
> should be the standard), then that is evidence we should not be
> ignoring (i.e. the inability to show that the costs are too high).
> Furthermore, we know from the Swaine report that IGOs have used the
> UDRP numerous times, so that too is evidence that the fees haven't
> been a barrier to the past usage of the UDRP (and the fees for the URS
> are much lower). See:
>
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html
>
> At a minimum (and this is reflected in the final sentence of the
> current draft), registrants who are defending a UDRP/URS should
> receive matching and identical subsidies, if any complainant received
> a subsidy.
>
> But, my strong preference is that no one should be getting any
> subsidies. Indeed, when asked, the GAC didn't provide any feedback
> that the current fees for UDRP/URS complaints were too high or
> unreasonable.
>
> 5] Recommendation #5: I'm unchanged from my past position made public
> on the mailing list at:
>
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001142.html
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001143.html
>
> Briefly, I'm in favour of all of the options, except for Option #3. My
> strong preference is for Option #1, as that completely solves the
> "quirk of process" putting both sides in the exact same position as
> they would have been without the UDRP/URS, allowing for the court
> process to proceed naturally without interference by ICANN policy.
>
> Option #2 (which I proposed) attempted to be a compromise between
> Option #1 and Option #3, but seems to have not resonated or caused
> backers of Option #3 to see it at as an attempt at compromise.
>
> Option #4 (as originally proposed by Zak) is a sound option, because
> it recognizes that there's an important underlying issue (access to
> the courts for REGISTRANTS), one that's also in play for the
> Yoyo.email "cause of action" issue in the UK, that might be best
> solved holistically in the RPM PDP.
>
> Both Option #5 and Option #6 attempted to reduce the number of cases
> that actually experience this "quirk of process".
>
> I support Option #5 (which I proposed) which makes this reduction
> *after* the UDRP/URS is decided, by allowing for "in rem" cases (which
> were unwittingly disadvantaged by the poor phrasing of the UDRP
> language when it was drafted nearly 20 years) to be on an equal
> footing as "in personam" cases in the eyes of registrars, when it
> comes to locking the domain (that small technical fix can still be
> pursued in the RPM PDP, though).
>
> I support Option #6, which makes the reduction in cases encountering
> the "quirk of process" differently, namely *before* the UDRP/URS
> decision is even made, by introducing a non-binding mediation step.
> Given the success at Nominet, this seemed like a no-brainer to me.
>
> I oppose Option #3, as it doesn't actually solve the problem. It
> compounds one problem (the quirk of process) with an even worse
> solution (arbitration, which creates a whole host of new problems),
> rather than doing what Option #1 properly does (solving the problem
> entirely by setting aside the UDRP/URS decision and putting both
> parties in the exact same position they would have been had the
> UDRP/URS procedure not interfered with the underlying legal rights of
> the registrant to have access to the courts for the underlying dispute
> to be decided on the merits). I've written about this in depth before
> (see past posts on this mailing list). Without reiterating every
> point, I'd point out that it's a weak facsimile of the due process
> protections of real courts and can be far more expensive than real
> courts (since taxpayers pay the costs of judges in real courts,
> whereas in arbitration those costs are paid by the parties).
>
> As for the current wording of the options, I don't think the revisions
> to Option #4 are "friendly". While adding the URS (which I suggested
> before) is good, Option #4 wasn't just asking for a "consultation",
> but an actual recommendation on how to move forward. The suggestion
> that a charter change to the RPM PDP is required doesn't make sense,
> given that the RPM PDP's scope is broad, and that the RPM Charter
> already contemplated coordination with other PDPs. As previously noted
> in April:
>
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001112.html
>
> in point #2, the RPM PDP charter already states:
>
> ""(b) Coordination with Other Parallel Efforts In the course of its
> work, the Working Group should monitor the progress of and, where
> appropriate, coordinate with, other ICANN groups that are working on
> topics that may overlap with or ***otherwise provide useful input to
> this PDP.***
> ....
> In addition, the RPM PDP Working Group should also take into
> consideration the work/outcome of the TMCH Independent Review, the CCT
> Review, and ***any other relevant GNSO policy development***"
>
> (emphasis added)
>
> So, in other words, this PDP's "outcome" provides input for the RPM
> PDP's work, and the RPM PDP, via its current charter, should take that
> into consideration. Furthermore, the RPM PDP should have *already*
> been monitoring and coordinating things (of course, there's
> overlapping membership between the two PDPs).
>
> Also, I think the language for Option #6 can be cleaned up a bit, as I
> suggested previously. Namely (a) it doesn't mention the URS at
> present, and (b) it could be made clearer that it's simply a
> combination of mediation + Option #1.
>
> I continue to have some reservations, as previously expressed by Paul
> Tattersfield, in how the language of the final report will handle the
> Swaine report. Since a draft final report was not part of the
> documents that accompanied this pseudo-"consensus call" (or more
> properly a "pre-consensus call"), I'll reserve my feedback until
> later. For now, I'll just link to my past comments at:
>
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001201.html
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
>
> On Fri, May 25, 2018 at 6:15 PM, Steve Chan <steve.chan at icann.org> wrote:
> > Dear WG Members,
> >
> >
> >
> > Attached, please find the compilation of the Working Group’s
> recommendations
> > and six (6) options related to Recommendation 5. This message is
> intended to
> > kick of the consensus call process for the WG’s recommendations and
> > remaining options under Recommendation 5. For those WG members who wish
> to
> > participate in the consensus call, we ask that you respond on the email
> list
> > to note your support or non-support for all recommendations (i.e.,
> > recommendations 1-4) AND the six (6) remaining options under
> recommendation
> > 5. Please provide your response on or before Friday, 8 June.
> >
> >
> >
> > Subsequently, the WG Chair will consider response to the consensus call
> and
> > seek to designate final consensus levels on the recommendations and
> options,
> > which will be published to the WG’s email list for WG consideration. WG
> > members will then have the opportunity to object to the designations and
> the
> > WG may choose to conduct another call on Thursday, 14 June to discuss; WG
> > members will also have the opportunity to file minority statements if
> > applicable, which will be incorporated into a Final Report for the
> Council
> > by 17 June.
> >
> >
> >
> > Note, based on the discussion on the WG’s call held on Friday, 25 May, a
> > handful of changes were made to the attached recommendations/options
> > document, highlighted in yellow (e.g., Recommendation 2, Recommendation
> 4,
> > Option 4). In addition, footnotes were added, linking to the original
> > rationale and suggestions made by Zak Muscovitch (Option 4), George
> Kirikos
> > (Option 5) and Paul Tattersfield (Option 6). The same was not done for
> the
> > first three options as those had been discussed extensively before the
> > additional three options were added and are included unchanged from the
> text
> > presented in the October 2017 poll.
> >
> > If you have any questions, please let us know.
> >
> >
> >
> > Best,
> >
> > Steve & Mary
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > Steven Chan
> >
> > Policy Director, GNSO Support
> >
> >
> >
> > ICANN
> >
> > 12025 Waterfront Drive, Suite 300
> >
> > Los Angeles, CA 90094-2536
> >
> > steve.chan at icann.org
> >
> > mobile: +1.310.339.4410
> >
> > office tel: +1.310.301.5800
> >
> > office fax: +1.310.823.8649
> >
> >
> >
> > Find out more about the GNSO by taking our interactive courses and
> visiting
> > the GNSO Newcomer pages.
> >
> >
> >
> > Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO
> >
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> >
> > http://gnso.icann.org/en/
> >
> >
> >
> >
> > _______________________________________________
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> > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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