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

Mon Jun 11 19:28:34 UTC 2018

I would leave it to the IRT for the process decision if recommendation 1 receives consensus.

Jim

Sent from my iPhone

James L. Bikoff | Attorney at Law

202-263-4341 Phone
202-263-4329 Fax
www.sgrlaw.com
jbikoff at sgrlaw.com

1055 Thomas Jefferson Street, N.W.
Suite 400
Washington, D.C. 20007

Smith, Gambrell & Russell, LLP

> On Jun 11, 2018, at 10:07 PM, George Kirikos <icann at leap.com> wrote:
>
>
> CAUTION: This email is from an external source. Do not click links or attachments unless it's from a verified sender.
> ________________________________
>
> [NB for staff: the last few emails of today sent to the IGO PDP
> mailing list have not been archived to the mailing list archives at:
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/date.html
> -- something might be broken technically with the archiving software]
>
> Jim: I addressed that issue in my own comments earlier:
>
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001219.html
>
> "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."
>
> That wouldn't be acceptable to you? i.e. after this PDP, there'd be an
> Implementation Review Team, and they wouldn't change the substance of
> the UDRP/URS. But, there'd be a change to the instructions for
> registrars (how to deal with a UDRP challenge), namely they could
> disregard the ruling.
>
> As I noted in another email:
>
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001227.html
>
> essentially, the registrar would be told that in the appropriate
> circumstances the UDRP/URS decision is longer enforceable.
>
> If you look at the example of the UDRP:
>
> https://www.icann.org/resources/pages/help/dndr/udrp-en
>
> There are 2 main documents:
>
> 1. The Policy: https://www.icann.org/resources/pages/policy-2012-02-25-en
> 2. The Rules for providers:
> https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en
>
> I think the only change required by an implementation review team, in
> the event that Option #1 is consensus and approved, is in section 4(k)
> of the first document, in particular, the very last part of it:
>
> " If we receive such documentation within the ten (10) business day
> period, we will not implement the Administrative Panel's decision, and
> we will take no further action, until we receive (i) evidence
> satisfactory to us of a resolution between the parties; (ii) evidence
> satisfactory to us that your lawsuit has been dismissed or withdrawn;
> or (iii) a copy of an order from such court dismissing your lawsuit or
> ordering that you do not have the right to continue to use your domain
> name."
>
> Just a few more words to modify the last part of that text, to capture
> the "quirk of process" and how it should be handled.
>
> I think the long-term solution (and much cleaner), as I pointed out on
> the list last week, is actually an entirely new process:
>
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001226.html
> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001227.html
>
> that would eliminate the "mutual jurisdiction" requirement entirely
> (not just from IGOs, but for all complainants). I'll bring that to the
> RPM PDP at the appropriate time as a long-term solution (fixes the
> Yoyo.email cause of action issue in the UK too). That kind of solution
> would require more extensive changes to the above 2 UDRP documents.
> Our current Option #1 just requires a tweak of one small section of
> 4(k) that is unrelated to how the UDRP cases are actually decided. The
> "substance" of the UDRP is Section 4(a), 4(b) and 4(c).
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
>
>
>
>
>
>
>
>
>
>> On Mon, Jun 11, 2018 at 2:33 PM, Bikoff, James <jbikoff at sgrlaw.com> wrote:
>> Phil, that is why I think amendment of the UDRP should go to another group
>> as would be the case with policy option 4.
>>
>>
>> Jim
>>
>> Sent from my iPhone
>>
>>
>>
>> James L. Bikoff | Attorney at Law
>>
>>
>> 202-263-4341 phone
>> 202-263-4329 fax
>> www.sgrlaw.com
>> jbikoff at sgrlaw.com
>>
>>
>> 1055 Thomas Jefferson Street, N.W.
>> Suite 400
>> Washington, D.C. 20007
>>
>>
>> Smith, Gambrell & Russell, LLP
>>
>> On Jun 11, 2018, at 9:29 PM, Corwin, Philip <pcorwin at verisign.com> wrote:
>>
>> Jim, I’d have to look at the URS, but I know that the UDRP provides that if
>> an appeal lawsuit is dismissed the prior UDRP decision will be implemented.
>> So how could recommendation #1 be given effect without an amendment to that
>> part of the UDRP?
>>
>> 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
>>
>>
>>
>> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On
>> Behalf Of Bikoff, James
>> Sent: Monday, June 11, 2018 2:23 PM
>> To: Nat Cohen <ncohen at telepathy.com>
>> Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org>
>> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's
>> Recommendations and Remaining Options
>>
>>
>>
>> All, please understand my position in support of recommendation 1 that no
>> change to UDRP or URS or special procedure is warranted.
>>
>>
>>
>> No support for other recommendations.
>>
>>
>>
>> Jim
>>
>> Sent from my iPhone
>>
>>
>>
>>
>>
>> James L. Bikoff | Attorney at Law
>>
>>
>>
>> 202-263-4341 phone
>> 202-263-4329 fax
>> www.sgrlaw.com
>> jbikoff at sgrlaw.com
>>
>>
>>
>> 1055 Thomas Jefferson Street, N.W.
>> Suite 400
>> Washington, D.C. 20007
>>
>>
>>
>> <image001.jpg> Smith, Gambrell & Russell, LLP
>>
>> On Jun 11, 2018, at 9:05 PM, Nat Cohen <ncohen at telepathy.com> wrote:
>>
>>
>>
>> CAUTION: This email is from an external source. Do not click links or
>> attachments unless it's from a verified sender.
>>
>> ________________________________
>>
>> Dear WG members,
>>
>>
>>
>> While it will likely be sorted out eventually, I'd like to clarify that my
>> comments regarding Option #3 were not intended to be viewed as supporting
>> that option.
>>
>>
>>
>> I wrote in support of Zak's comments, who stated as to Option #3 that "I
>> cannot support it in its present form".
>>
>>
>>
>> Similarly while I see a theoretical possibility that option 3 could be
>> structured in a way that I could support, I cannot support it in the absence
>> of a concrete proposal whose merits can be evaluated.  In my view the
>> defects in the UDRP would first have to addressed, either through the RPM WG
>> or through creating an IGO-specific UDRP that better safeguarded domain
>> owners.  But as that has not yet been fleshed out, or even proposed as far
>> as I'm aware, it would be premature to express support for option #3.
>>
>>
>>
>> I write now in part because, due to a conflict, I will not be able to
>> participate on tomorrow's call.
>>
>>
>>
>> Regards,
>>
>>
>>
>> Nat Cohen
>>
>>
>>
>>
>>
>> On Thu, Jun 7, 2018 at 3:33 PM, Nat Cohen <ncohen at telepathy.com> wrote:
>>
>> Dear WG Members,
>>
>>
>>
>> I write in support of Zak's positions, and add the following comments-
>>
>>
>>
>> Option #1  should work well for IGOs whether they realize it or not.  It is
>> quite rare for a UDRP decision to be challenged in court.  The practical
>> effect of Option #1 is to enable IGOs to avail of the UDRP either directly,
>> or through an agent, and if they win to obtain the transfer of the disputed
>> domain in the likely 90%+ of the instances where the decision is not
>> challenged.  Since in most jurisdictions it is quite expensive to file in a
>> national court, a domain owner is only likely to file if he/she believes the
>> domain name has substantial inherent value unrelated to an IGO's use - which
>> is just the sort of domain that likely should not be ordered transferred
>> through a UDRP.
>>
>>
>>
>> IGOs are not being singled out for punitive treatment.  IGOs are requesting
>> special treatment and for the ability to subject domain owners to a flawed
>> and biased quick-and-dirty proceeding without the possibility of judicial
>> recourse.  To assert a domain owner's right to judicial review is not
>> punitive towards IGOs.
>>
>>
>>
>> Option #3 - if a procedure was created that genuinely resulted in transfers
>> only in cases of blatant cybersquatting, and that adequately protected the
>> rights of domain investors - which the UDRP does not - then I would be open
>> to giving it strong consideration.
>>
>>
>>
>> Regards,
>>
>>
>>
>> Nat Cohen
>>
>>
>>
>>
>>
>>
>>
>> On Thu, Jun 7, 2018 at 2:23 PM, Zak Muscovitch <zak at muscovitch.com> wrote:
>>
>> Dear WG members:
>>
>>
>>
>> Further to the below request for a response to the consensus call, please
>> see my below response:
>>
>>
>>
>> I generally support Recommendation #1. I would clarify however, that no
>> “substantive” changes are required (i.e. thereby leaving open the
>> possibility of procedural changes).
>>
>>
>>
>> I generally support Recommendation #2, with the caveat that an IGO can
>> demonstrate its rights by showing common law or unregistered rights in a
>> name, for which 6ter compliance can be used.
>>
>>
>>
>> I generally support Recommendation #3, and would add that if any procedural
>> adjustments are required to provide greater clarity, that would be
>> consistent with my suggested revision to Recommendation #1.
>>
>>
>>
>> I generally support Recommendation #4, however I would note that any
>> exploration of feasibility for providing subsidies to increase access to
>> justice, should be means tested and should not necessarily be restricted to
>> IGO’s, and I would convey this thought in the Recommendation.
>>
>>
>>
>> I support Option 4 of Recommendation #5, which I had proposed compromise
>> solution in the absence of universal agreement on which Recommendation this
>> WG makes. I realize that it is not an ideal outcome, but it attempts to
>> balance the perspectives of those who support Option 1, with those that
>> think that a substantial revision to the Policy is required to accommodate
>> IGO interests. In the latter case, such changes IMHO would necessarily have
>> to be undertaken within the broader mandate of the RPM WG which will be
>> looking at the UDRP as a whole.
>>
>>
>>
>> I do however, support Option 1 in principle, though I suggest that the word,
>> “vacated” be used instead of “vitiated”. The reason for my support of Option
>> 1 in principle, is that as Mr. Tattersfield has pointed out on numerous
>> occasions, any IGO that commences civil legal proceedings against any
>> stranger for any matter, would necessarily as a matter of course, implicitly
>> waive the jurisdictional immunity that it otherwise has, and I see no reason
>> that the UDRP should be any different.
>>
>>
>>
>> I would also support Option 2, as it would be an interesting and reasonable
>> compromise that would drive potentially better policy making.
>>
>>
>>
>> I understand Option 3 and appreciate the objective and rationale behind it,
>> although I cannot support it in its present form. Nevertheless, it is a
>> creative solution and attempted compromise. My concerns with it are
>> substantial and twofold;
>>
>>
>>
>> a) Any party that commences a civil legal proceeding of any kind against a
>> stranger ipso facto voluntarily and implicitly waives immunity if they have
>> it to begin with, and Option 3 attempts to allow IGO’s to at once avail
>> themselves of the UDRP procedure without giving up their immunity – which as
>> aforesaid – is unjustifiable IMHO since it allows ‘sucking and blowing’ at
>> the same time. Furthermore, registrants have a well founded right to go to
>> court, which they understandably do not want to give up, nor should they be
>> compelled to give it up, particularly since being subjected to the UDRP in
>> the first place involved a grand bargain wherein they would not lose the
>> right to go to court; and
>>
>>
>>
>> b) Notwithstanding the foregoing objections, I can nevertheless see how this
>> solution could in principle provide a remedy to this intractable situation
>> which inevitably pits the rights of IGO’s against the rights of registrants
>> (as Dr. Swaine pointed out), but to effect a solution such as this, there
>> would have to be substantial safeguards for the rights of registrants in
>> terms of the nature of the arbitration, such that it would be an attractive
>> trade-off for losing (what many registrants consider to be) the inalienable
>> right to go to court to protect one’s rights and assets, and as presently
>> envisioned I am not satisfied that is the case. As such I am unable to
>> support it. For example, a registrant having to go to court to fight of an
>> immunity claim, or for that matter, an IGO having to go to court to make an
>> immunity claim following a UDRP, seems like an unnecessarily burdensome step
>> for both parties, albeit likely rare. Moreover, the nature of the proposed
>> arbitration at this time is insufficiently clear and therefore provides me
>> with an insufficient basis for considering it to be an adequate substitute
>> for court proceedings.
>>
>>
>>
>> If however, I did see a procedure and arbitration framework which provided
>> sufficient comfort and attractiveness such that it was a reasonable and
>> justifiable alternative for registrants in exchange for their right to go to
>> court, that is something that I would further consider.
>>
>>
>>
>> I would also support Option 5, which would provide a creative way of
>> allowing a court action without necessarily naming an IGO, however I am
>> uncertain as to whether in rem actions are universally available in all
>> jurisdictions.
>>
>>
>>
>> I would also support Option 6 in principle, as mediation can potentially
>> solve many disputes, not just for IGO’s but for UDRP Complainants and
>> Respondents generally. I am uncertain however, where the funding would come
>> from.
>>
>>
>>
>> Yours truly,
>>
>>
>>
>> Zak Muscovitch
>>
>>
>>
>> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> On Behalf Of
>> Steve Chan
>> Sent: June-05-18 12:02 PM
>> To: gnso-igo-ingo-crp at icann.org
>> Subject: Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations
>> and Remaining Options
>>
>>
>>
>> Dear WG Members,
>>
>>
>>
>> This message is to remind you all that your response to the consensus call,
>> initiated on 25 May, must be sent to the email list by Friday, 8 June in
>> order for it to be taken into proper account in the WG Chair’s assessment of
>> consensus levels. Please see the original message below for further details.
>>
>>
>>
>> Note, due to availability issues, we are expecting to move the WG’s next
>> meeting, originally intended for Thursday, 14 June, to Tuesday, 12 June. You
>> can anticipate receiving a meeting invitation in the near future.
>>
>>
>>
>> Best,
>>
>> Steve
>>
>>
>>
>> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of
>> Steve Chan <steve.chan at icann.org>
>> Date: Friday, May 25, 2018 at 3:19 PM
>> To: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
>> Subject: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and
>> Remaining Options
>>
>>
>>
>> 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
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