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

George Kirikos icann at leap.com
Tue Jun 12 01:53:34 UTC 2018


Phil: I was referencing the relationship between RECOMMENDATION 1
(should have made that clearer in the prior email to you, where I
wrote Option #1 accidentally in the first paragraph, but actually
quoted RECOMMENDATION 1). [as an aside, we might want to in the future
label them Recommendation A, Recommendation B, Recommendation C,
Recommendation D, and Recommendation E, and then keep the numeric
options for Recommendation E; or, do it the other way around] Sorry
for the confusion.

Recommendation #1 says "No changes to the UDRP".

But, in recommendation #5, all the various options, except for Option
#4, would make changes to the UDRP. That was the point I was trying to
make. As you'll see in the coming spreadsheet/PDF of my own separate
analysis of initial consensus level designations (I'll be starting a
brand new thread, watch for it very shortly), this was picked by me
and Zak and others in relation to Recommendation #1.

With regards to your own statement re: Options #1 and Options #4 (all
within Recommendation 5), I disagree with your analysis. I won't waste
time here elaborating (want to send off my Consensus Designation
Analysis to the list), but am happy to elaborate later if you wish.
Let me know. [It'll be moot, in any event, as I don't expect both
Option #1 and Option #4 to both achieve consensus in this PDP, at
least from what I can tell based on my analysis --- see my next email
in a new thread]

Sincerely,

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




On Mon, Jun 11, 2018 at 9:22 PM, Corwin, Philip <pcorwin at verisign.com> wrote:
> George:
>
> As you invoked my name in regard to the relationship of Options 1 and 4 on Recommendation 5, let me make my position clear -- they are in irreconcilable and irreparable opposition. One cannot, with any claim to consistency,  favor the creation of an exception to the UDRP regarding the effect of a court case dismissal that treats IGOs (and, by implication all nation-states possessing valid claims to sovereign immunity) differently than all other Complainants, and simultaneously declare the IGO immunity should be evaluated in a broader context by another WG to consider all possible implications before any significant amendment to the UDRP is made. That circle cannot be squared.
>
> 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
>
> -----Original Message-----
> From: George Kirikos [mailto:icann at leap.com]
> Sent: Monday, June 11, 2018 3:31 PM
> To: Corwin, Philip <pcorwin at verisign.com>
> Cc: jbikoff at sgrlaw.com; ncohen at telepathy.com; gnso-igo-ingo-crp at icann.org
> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options
>
> 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
>>
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>>
>> steve.chan at icann.org
>>
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>>
>> office tel: +1.310.301.5800
>>
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>>
>>
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>>
>>
>>
>>
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