[Gnso-igo-ingo-crp] George Kirikos analysis of initial consensus designation levels (as of June 11, 2018)

Paul Tattersfield gpmgroup at gmail.com
Tue Jun 12 10:54:36 UTC 2018

George's attached spreadsheet is very illuminating.

All of the problems that this working group has had can be attributed to a
single word in row 6 columns 8, 9 & 10 - “strongly”. This is the root of
ALL of the problems this working group has had.

It is a misplaced sense of self belief combined with an opportunity for a
disgusting sustained manipulation of process to try and force through an
incredibly stupid personal view on the world at all costs that has
squandered months of everyone’s time.

Whilst the working group will likely come to the correct conclusion and
reject the inelegant and deceptive slight of hand of option #3, because of
a single person’s persistent attempt to stifle all discussion on
alternative view points we now have a final report which is not
sufficiently robust to support the working group's consensus derived

Swaine is clearly wrong and it is the continuing deference to the flawed
thinking in his “expert report” that has contributed to option #3
continuing to survive as long as it has.Therefore, I believe we need to set
out very clearly the reasoning on Swaine’s incorrect assumptions and that
reasoning should be included in the final report to support the working
group’s conclusions otherwise we run the risk of having those above with a
political rather than honest agenda alleging our conclusions can not be

For this reason I would like to formally request that the reasoning below
is included in the final report. If it is not possible to include colours
please let me know and I will reformat the text accordingly.

Thank you.

https://community.icann.org/pages/viewpage.action?pageId=56131791 which is
marked final and dated 6/17/2016.

>From that document:

*“3. Discussion (Bottom of page 8) The core question is whether an IGO is
“entitled to immunity,” but the baseline assumptions may be disaggregated.
The scope of IGO immunity would most clearly be at issue if the Mutual
Jurisdiction provision were irrelevant and the IGO had not itself initiated
judicial proceedings, since that would risk waiving any immunity to which
it may be entitled, including to counterclaims. 20 This might be the case,
for example, if a domain-name registrant sought a declaratory judgment
against an IGO in relation to some actual or potential infringement. 21
That scenario, though not otherwise of concern here, does usefully isolate
the question as to whether an IGO has a legitimate expectation that it
would be entitled to immunity absent the UDRP. If such immunity is minimal
or uncertain, then any compromises required by the UDRP loom less large; if
the IGO would otherwise be entitled to immunity, however, its potential
sacrifice seems more substantial. As explained in Part A, the answer
depends. IGOs generally enjoy immunity under international law, but
different jurisdictions apply the law differently, and even within the same
jurisdiction different IGOs may be treated differently. Part B then
introduces the complication that any such immunity may be waived through
the Mutual Jurisdiction provision, and affording such waiver is not the
same thing as violating an IGO’s immunity. Part C then discusses
alternative ways to resolve the situation. … “*

Green   Initiating proceedings waives immunity including counterclaims
Blue     Scenario (a) below
Red      Transfers those rights of scenario (a) to scenario (b)

The rest of the memo is then based on the incorrect assumption that rights
can be transferred between the two scenarios.


Absent UDRP there are two possible ways the immunity question could come
before a court:

(a) A TM owner seeks to acquire a domain which an IGO has registered
(b) An IGO seeks to acquire a domain which a domain registrant has

In (a) the IGO would be entitled to raise an immunity defence
In (b) the IGO would be required to waive immunity for the court to
consider the matter.

As the UDRP is an administrative procedure to help take less complex cases
out of the judicial system if UDRP is to afford the same protections as any
other forum then UDRP needs to take into account both cases.

(a) A TM owner seeks to acquire a domain which an IGO has registered by
bringing a UDRP
(b) An IGO seeks to acquire a domain which a domain registrant has
registered by bringing a UDRP

*Conclusion *
The working group has not considered (a) which hides the fact that in (b)
an IGO is never entitled to jurisdictional immunity after choosing to
initiate proceedings. The incorrect Swaine reasoning introduces irrelevant
complexity which confuses rather than clarifies and should therefore have
no place in the working group’s final report.

[for those without colours here is an earlier link to a formatted .pdf
version of the above reasoning

On Tue, Jun 12, 2018 at 7:01 AM, George Kirikos <icann at leap.com> wrote:

> Hi folks,
> After consulting with Jim Bikoff off-list, I've updated my spreadsheet
> to remove the question marks (got those ones right, so they didn't
> change from before), and fixed a typo [from "Does" to "Doesn't"] which
> didn't actually change any of the analysis (that cell was Yellow, so I
> assessed it correctly, just didn't notice the typo until now).
> The web link updates automatically:
> https://docs.google.com/spreadsheets/d/e/2PACX-
> 1vQgB2sY5AgaBZUHsHJJPLIsAwTFj-0i3FsammN5q-iD1QCQ_EMBC8LTzZ30TGvrf6Fw_
> mUvlnHa9DV9/pubhtml
> (every 5 minutes) but some might prefer the PDF.
> Bedtime for me.
> Sincerely,
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> On Mon, Jun 11, 2018 at 11:24 PM, George Kirikos <icann at leap.com> wrote:
> > Apologies, I forgot to attach the PDF version of the Google sheets
> > document. It's attached now.
> >
> > Sincerely,
> >
> > George Kirikos
> > 416-588-0269
> > http://www.leap.com/
> >
> >
> >
> > On Mon, Jun 11, 2018 at 11:05 PM, George Kirikos <icann at leap.com> wrote:
> >> Hi folks,
> >>
> >> I've done my own analysis, given the problems already identified with
> >> the ones done by Staff/Petter/Susan [hereafter just "Staff version"]
> >> (which is at: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/
> 2018-June/001264.html
> >> ).
> >>
> >> Reg Levy's own analysis is at:
> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001266.html
> >> [although the version on the web is poorly formatted; I suggest if PDP
> >> members want to view it more easily, they refer back to the one in
> >> their mailbox; conceivably it can be turned into a PDF and then resent
> >> to the list to be archives, so that others viewing the web archive can
> >> read it more easily]
> >>
> >> A Google Sheets version is at:
> >>
> >> https://docs.google.com/spreadsheets/d/e/2PACX-
> 1vQgB2sY5AgaBZUHsHJJPLIsAwTFj-0i3FsammN5q-iD1QCQ_EMBC8LTzZ30TGvrf6Fw_
> mUvlnHa9DV9/pubhtml
> >> (updates every 5 minutes, if I make changes)
> >>
> >> and a PDF is attached that is captured as of just before this email. I
> >> would suggest Staff add those both to the Wiki for tomorrow's call, so
> >> they can be referenced.
> >>
> >> As you can see, I took more a nuanced view of the input, rather than a
> >> black/white (Support/Do Not Support) that Petter/Susan/Staff did.
> >> Reg's was also more nuanced, but only looked at the options in
> >> relation to Recommendation #5 (I looked at everything). I also took
> >> into account Mike Rodenbaugh's input (Reg didn't, that's why she has
> >> 14 rows, and I have 15). I also took into account Paul Keating's input
> >> from the May 10, 2018 phone call (where he opposed subsidies, i.e.
> >> opposed recommendation #4). And I also captured emails up to now (Jim
> >> Bikoff's apparent change of position is a bit confusing, so question
> >> marks there). I also made inferences for Options #1 through #6 of
> >> Recommendation 5 for Osvaldo and Crystal -- but left out any
> >> inferences for Recommendations 1 through 4 when there was no direct
> >> response for everyone]
> >>
> >> Anyhow, here's what my analysis suggests:
> >>
> >> A] Recommendation 1: (staff says "FULL CONSENSUS")
> >>
> >> I think full consensus is achievable, but the wording needs to be
> >> slightly changed (i.e. see the comments of myself and Zak, echoed by
> >> Nat/Jay), i.e. add the word "substantive". If we look at the text
> >> which staff sent out today, they've already added the word
> >> "Substantive", so I think we're all in sync on that (compare to
> >> Petter's version sent out on Saturday night which had the original
> >> text, which didn't include the word 'substantive').
> >>
> >> B] Recommendation 2: (staffs says "CONSENSUS")
> >>
> >> I think consensus is achievable, if we clarify the text. The text got
> >> partially changed already (staff version of today, compared with
> >> Petter's from Saturday), but as I noted earlier today:
> >>
> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001267.html
> >>
> >> they only did half the changes.
> >>
> >> C] Recommendation 3: (staff says "FULL CONSENSUS")
> >>
> >> I've got this marked as "CONSENSUS", because I have Jim Bikoff marked
> >> as no support, based on his email at:
> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001256.html
> >>
> >> D] Recommendation 4: (staff says "CONSENSUS")
> >>
> >> This is one the trickier ones. I think Consensus might be achievable,
> >> if we clarify the text. But, it might end up being "STRONG SUPPORT
> >> WITH SIGNIFICANT OPPOSITION". Right now, it's hard to tell. As I noted
> >> above, I've captured Paul Keating's input on this issue, which he's
> >> expressed on phone calls.
> >>
> >> E] Recommendation 5: Option #1 (staff says "CONSENSUS")
> >>
> >> I agree, it appears to be consensus (even with the implied opposition
> >> of Osvaldo that I record, but differ on staff with; we agree on all
> >> supporters, although I mark Mike Rodenbaugh as a "yellow" instead of a
> >> "green" (would be ok with, rather than "support").
> >>
> >>
> >> F] Recommendation 5: Option #2 (staff says "NO CONSENSUS / DIVERGENCE")
> >>
> >> I agree.
> >>
> >> G] Recommendation 5: Option #3 (staff says "MINORITY VIEW (WITH
> >>
> >> I agree.
> >>
> >> H] Recommendation 5: Option #4: (staff says "CONSENSUS")
> >>
> >> I think this one's unclear. I think it's either consensus (but a
> >> smaller one than Option #1), OR it is Strong Support But Significant
> >> Opposition. Unlike Staff, I base this on implied "No" from Crystal and
> >> Osvaldo, and non-binary "conditional support" from Jim and Reg, as
> >> well as the rank preferences from others in Option #1]
> >>
> >> I] Recommendation 5: Option #5: (staff says "NO CONSENSUS/DIVERGENCE")
> >>
> >> I agree.
> >>
> >> J] Recommendation 5: Option #6 (staff says ""STRONG SUPPORT BUT
> >>
> >> I've got it marked as No Consensus / Divergence, because I treat
> >> Crystal/Osvaldo differently than staff (I infer an implied "No"). Also
> >> I treat Reg differently too (non-binary).
> >>
> >> If anyone feels I've interpreted their input incorrectly, please let me
> know.
> >>
> >> As for moving forward (I still maintain we need more time), here are
> >> some constructive suggestions:
> >>
> >> 1. "finalize" (subject to a big review before the final report, in
> >> case someone missed something big) some of the text that has changed
> >> in Recommendation #1 & #2 (which has been changed, implicitly there's
> >> agreement, but we should get everyone explicitly on board)
> >>
> >> 2. Separate out Recommendation 4 (subsidies, etc.) for further
> >> discussion. Either agree to change in the recommendation itself
> >> (text), or have a more formal survey just separately on that issue
> >> (since there were some non-responses)
> >>
> >> 3. For Recommendation 5, I'd suggest marking Options #2, #3 and #5 as
> >> "dead", and concluded determined designations as what they were listed
> >> at -- staff and I agree; although others might raise objections]
> >>
> >> 4. For Recommendation 5, Option #6, I would make a "friendly"
> >> amendment for Paul T. Since Option #6 is really just the same
> >> (essentially as mediation + Option #1), I would suggest that we
> >> isolate things to break the linkage to Option #1  i.e. I would suggest
> >> that we create an entirely separate "Recommendation 6" which *only*
> >> had the mediation aspect. Then, folks can support/oppose the mediation
> >> aspect by itself, without the implicit linkage to Option #1. .
> >> Currently, staff doesn't have it reaching "Consensus" a notch below
> >> that, and I have it even weaker.
> >>
> >> 5. For Recommendation 5, Options #1 and #4 -- here the idea of "rank"
> >> really should come into play. Having both accepted might be considered
> >> "weird". i.e. Option #1 gives a solution to the problem now, but then
> >> Option #4 says "we're not going to solve the problem now, we're going
> >> to send it to the RPM PDP").
> >>
> >> Those are my thoughts for now.
> >>
> >> Sincerely,
> >>
> >> George Kirikos
> >> 416-588-0269
> >> http://www.leap.com/
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