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

Mon Jun 11 19:30:31 UTC 2018

Phil: it's actually much worse than what you said (and reinforces my
call to give more time to clean up things in the next few weeks, to
get a final document for the July GNSO Council meeting). See the prior
email I sent to Jim where I put in my own "support" for Option #1 the
proviso that:

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."

Because, you're absolutely right. As currently drafted, read
literally,  Recommendation #1 kills off not just Recommendation #5's
Option #1, but also Option #2, Option #3, Option #5 and Option #6! (it
obviously has no impact on Option #4). So, I agreed with the "intent
of Recommendation #1, but not really its actual current text.

That's why we need enough time to closely re-read everything, to
prevent glaring mistakes. Remember when we caught that bad mistake
where we had recommended subsidies for INGOs, which was inconsistent
with what he had decided was lack of future consideration of INGO
issues?!?!?! (and that had been long after the report submitted for
public comment! i.e. it was disovered last year),

This has happened in other PDPs where there was a rush job, and
mistakes ended up being made (that had to be corrected). e.g see:

https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/date.html

where they had a "Final Report" on June 12:

https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/000688.html

and were congratulating each other, etc., but then 8 days later
there's a long thread:

"URGENT Correction to Recommendation 4 - REPLY NEEDED!"

https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/000694.html

where changes needed to be made, etc. Embarrasingly:

https://mm.icann.org/pipermail/gnso-contactinfo-pdp-wg/2015-June/000699.html

"I was there during the presentation to the GNSO Council when this was
discovered."

I don't want this group to be in that situation. Let's agree to give
ourselves the time to get the job done right.

Sincerely,

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

On Mon, Jun 11, 2018 at 2:29 PM, Corwin, Philip via Gnso-igo-ingo-crp
<gnso-igo-ingo-crp at icann.org> 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
>
>
>
>  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
>
> 12025 Waterfront Drive, Suite 300
>
> Los Angeles, CA 90094-2536
>
> steve.chan at icann.org
>
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>
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>
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>
>
>
> Find out more about the GNSO by taking our interactive courses and visiting
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>
>
>
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