[Gnso-igo-ingo-crp] Fwd: Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list

[George Kirikos]

Let's try this one more time:

---------- Forwarded message ---------
From: George Kirikos <icann at leap.com>
Date: Thu, Nov 29, 2018 at 2:00 AM
Subject: Response to "Procedural options for IGO-INGO Curative Rights
PDP" email sent to GNSO Council mailing list
To: <kdrazek at verisign.com>, Rafik Dammak <rafik.dammak at gmail.com>,
<pam.little at alibaba-inc.com>, Nathalie Peregrine
<nathalie.peregrine at icann.org>, Mary Wong <mary.wong at icann.org>, Steve
Chan <steve.chan at icann.org>, <darcy.southwell at endurance.com>,
<mpsilvavalent at gmail.com>
Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org>


Hello,

[please forward this email to the rest of GNSO Council]

On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting
(not observing the usual 10 day advanced notice rule for documents),
ICANN staff sent various documents related to the IGO-INGO Curative
Rights PDP to the GNSO Council mailing list:

https://mm.icann.org/pipermail/council/2018-November/022091.html

Given the limited time to review it, I can't comment on all of it at
this time. However, it once again appears to present a false and
one-sided view of the work of the PDP working group, in an attempt to
undermine its recommendations. Furthermore, it excludes important
information.

1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES &
NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS
(PDP) FINAL REPORT", the first option (on page 2), namely engaging in
a facilitated discussion with the GAC, ignores the fact that the the
working group already fully considered the input that was provided by
the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC,
i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that
registrants subject to a UDRP or URS would also be parties who are
"most affected" by recommendations.

In addition, there **already*** was a "small group" convened with IGO
participation, see:

https://mm.icann.org/mailman/listinfo/discussion-igo-rc
https://mm.icann.org/pipermail/discussion-igo-rc/

which had the participation of WIPO, OECD, and both co-chairs (at the
time, before Phil Corwin resigned in 2018) of the IGO PDP, among
others. Indeed, the author of the 11 page document (ICANN Staff member
Mary Wong, as per the metadata of the PDF) was the first person who
posted on that mailing list:

https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html

"This list has been created as a result of the conference call of 20
December 2016 among representatives of the ICANN Board, GAC and GNSO.
As a participant on that call, you have been automatically subscribed
to this list, which is intended for group discussion of the proposal
for a facilitated dialogue between the GAC and the GNSO, to resolve
the outstanding issues on protections for IGO acronyms, the names of
the Red Cross National Societies, and certain names and acronyms of
the international Red Cross movement."

IGOs have had their say, numerous times. All that another "facilitated
dialogue" would do is attempt to mislead and misinform folks who are
not subject matter experts, attempt to re-argue their past failed
arguments, and furthermore exclude those who actually fully understand
all the issues (i.e. the current members of the PDP working group who
invested 4 years of research and analysis on the topic to come up with
their consensus recommendations). IGOs have nothing new to say that
hasn't already been said.

2. For option 5 (page 4) the document mentions concerns about "lack of
representation", "differences between leadership and members", and
"dominance by a specific group". Frankly, those are frivolous
arguments that have been raised at a late date by those who failed to
convince the rest of the working group as to the merits of their
positions. One should immediately notice that those arguments are
being made only with regards to Recommendation #5 -- if there truly
was "capture", then certainly Recommendations #1 through #4 would
similarly be impacted by the asserted "lack of representation", etc.
Furthermore, the current co-chair and the former co-chair had every
opportunity, by Section 3.2 of the working group guidelines, to
determine whether "capture" had occurred, but not once did they claim
it during the PDP:

"The Chair, in cooperation with the Secretariat and ICANN Staff, is
continually expected to assess whether the WG has sufficiently broad
representation, and if not, which groups should be approached to
encourage participation. Similarly, if the Chair is of the opinion
that there is over-representation to the point of capture, he/she
should inform the Chartering Organization."

The assertions of "capture" began only *after* the co-chairs found
themselves to be in a small minority and opposed to the consensus that
the rest of the working group successfully achieved. After the first
anonymous and non-transparent poll had been conducted in October 2017
which was consistent with the option favoured by the co-chairs, the
co-chairs expressed no concerns whatsoever about "capture". It was
only long afterwards, after the fully transparent procedures  (as a
result of my first Section 3.7 appeal) established and documented that
the co-chairs were in fact in a small minority, and the consensus was
for an option other than that supported by the then co-chairs, that
the "capture" argument was put forth (as an attempt to undermine the
Final Report's conclusions).

Lastly, take a look at the documented positions and constituencies of
each working group member who actually participated in the Consensus
Call (as of June 12, 2018):

https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTFj-0i3FsammN5q-iD1QCQ_EMBC8LTzZ30TGvrf6Fw_mUvlnHa9DV9/pubhtml

(which wasn't put into the final report; later deliberations
solidified the actual consensus levels as reported in the final
report, as text was tweaked to satisfy various concerns that had been
expressed)

As was properly noted in the letter to the ICANN Board of August 16, 2018:

https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-board-16aug18-en.pdf

the working group had a broad cross-section of members from various
constituencies. It's preposterous to suggest, for example, that David
Maher and Crystal Ondo (both of the Registries Stakeholder Group, same
as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group)
were involved in a "capture" somehow, in supporting Recommendation #5
(Option #1). I can't speak for them, but presumably they made their
best assessment of the facts and analysis, and supported the
recommendations that were found to be best, just like every other
member of the PDP. Those claiming "capture" should explain how 2
members of the Registries Stakeholders Group (same constituency as
Phil Corwin) and 1 member of the Registrars Stakeholders Group were
part of the consensus that is being attacked by some. It's obvious
that they can't do this, completely destroying the credibility of
those claiming "capture". Instead, they try to smear the group as a
while with unsupportable claims. If there really was voting in
"blocs", explain why both Reg Levy and myself happened to be *opposed*
to Recommendation #4 (being in a minority on that one, against the
consensus) -- this too is not consistent with "capture" (i.e. it's
clear people made their own decisions).

3. It's no secret that I've been highly critical of ICANN staff in
this PDP. The bottom of page 6 is yet another example of
misinformation coming from ICANN Staff. The "Notes on #1" asserts that
I (without naming me) "proposed what became Recommendation #5" -- that
is a complete falsehood. In fact, it was Paul Keating who was the one
who had first proposed Option #1 (which became the consensus
Recommendation #5), back when the matter initially arose, as fully
documented on July 21, 2016, starting on page 14:

https://community.icann.org/download/attachments/60491579/transcript%20IGO%20INGO%2021%20July%202016.pdf?version=1&modificationDate=1469203657000&api=v2

Paul Keating: "But to state emphatically in a part of the UDRP policy
that if there is subsequent litigation following a UDRP, in which the
IGO requests and is granted or the court on its own grants immunity,
then ****the UDRP decision itself should become a nullity.*****

And the reason is, is because otherwise you're leaving a respondent
with no ability to challenge a contractually appointed panel. The
quality of which is not always very good. I mean, if you look at the
statistics for post-UDRP litigation, the vast majority of them are
overturned. And I think that to leave a respondent solely with the
UDRP as their only means of addressing the issue and nothing else, I
think that that’s patently unfair to the respondent.

So I think that the proper choice is to place the decision at the
level of the IGO. If they wish to proceed with the UDRP they're
running the risk of waiver of their immunity claim. If they win and
they subsequently argue immunity, and are granted immunity, ****then the
UDRP decision becomes a nullity.*****" (emphasis added)

Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let
me just ask - and I think what you put forward should be discussed by
the group as we move toward report and recommendations. If that - let’
say there’s a decision, it goes against the registrant in the UDRP.
Transfer is ordered. Registrant files in a court of mutual
jurisdiction. IGO goes into that court and says they - we shouldn’t be
here, we’re immune. Court agrees with them, would the IGO then - then
the - ****under your scenario, the UDRP decision is also
vitiated.****" (emphasis added)

So, initially it was being called "nullification", and I believe Phil
Corwin was the first one to use the term "vitiate." Regardless, it was
Paul Keating's proposal, not mine.

This history is further documented by the Adobe Connect Chat Room
Transcript for the following week's call PDP call (July 28, 2016):

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html

where we're chatting back and forth and we're using the term
"nullification", I pointed out expressly that it was Paul Keating's
idea:

"George Kirikos:For suggestion #1 (which I don't favour; I'm in the
"status quo + greater education + assignment camp), nullification
should take place regardless when the court case is brough (since a
court case can be brought at any time, even before the UDRP decision
is rendered).
  George Kirikos:*brough = brought
  Mary Wong:Options A through D are more fully detailed in Prof
Swaine's legal memo.
  Mary Wong:Option E brings us back to the standing issue - Phil
provided a clarification last week that this, too, is an option to
consider.
  Mary Wong:@George, but this would be a case filed by the losing
respondent, right?
  Mary Wong:Against a UDRP decision in favor of the IGO.
  George Kirikos:Mary: it would be filed during the UDRP, before the
panel has deemed the respondent a "loser"
  George Kirikos:A court case can be initiated at any time, even
before the panel has made a decision.
  Mary Wong:Understood, but I had thought that the "nullification"
point referred to vitiating the UDRP decision.
  George Kirikos:(that's how my company did it for the PUPA.com domain
name dispute; Tucows has done the same several times, as have others)
  Mary Wong:Because, if there hasn't yet been a panel decision, there
would not be a result to nullify.
  George Kirikos:Right, it would be nullified, even if the respondent
didn't wait for the panel to reach a decision (i.e. they might make an
adverse decision later, after the court case is brought).
  George Kirikos:Some panels will terminate, to defer to the courts.
Some panels will still render a decision, though.
  George Kirikos:I didn't propose it -- Paul Keating did."

The correct attribution (to Paul Keating) is certainly known by ICANN
staff, as it was pointed out before, including on November 22, 2017 on
the mailing list, see:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html

I think ICANN Staff intentionally tried to associate Option #1 as
being my idea in an attempt to undermine it, trying to link its
origins to someone who is personally disliked by some members of the
GNSO Council, and who would vote against it on that basis alone.
[Indeed, Option #1 (what is currently Recommendation #5's consensus)
wasn't even my personal favourite option! (Option #7 was, which was
unfortunately arrived at too late to be considered)]

4. The "Note on #6" (page 10) concerning things like "dynamics" and
"process challenges" is highly one-sided. In fact, the Section 3.7
appeals were meritorious, which folks would quickly realize if they
actually read the background documents. The questions raised about
transparency of process were 100% valid, as the anonymous voting
violated the Working Group Guidelines, justifying the first section
3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had
adequate time to prepare our final report and to reach consensus, see:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html

It too was meritorious, since we finally did reach consensus on all 5
recommendations (overcoming the efforts of those who tried to
manipulate the process). And, the fact that GNSO Council now wants to
gain "specific insights into deliberations" (Option 6, page 4 of the
document) is strong evidence that the Final Report was inadequate, a
point I made repeatedly in arguing for more time to add more info
documenting our rationale (ICANN staff did a horrible job  summarizing
our debates and arguments). In fact, I personally disavowed the Final
Report in July, because it wasn't up to snuff (even after I had been
apparently the only one to have proofread what was submitted, as Staff
delivered a draft report at a very late date with little time to
review and respond):

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html

"Furthermore, I do not intend to read or amend the draft Final Report
any longer, while this Section 3.7 appeal is in effec. I appear to be
the only person who has even attempted to read it and improve it, yet
today is 1 day before it's due! We have to stop pretending that the
Final Report is in good shape and ready for submission, and I won't be
part of that pretending any longer. [I'll rely on my own words in my
own minority statement]

Specifically, I *disavow* the current draft Final Report. While I
believe the Recommendations themselves have been accurately recorded,
the supporting rationales and other text in that document are not in
good shape yet for submission to GNSO Council."

Any "process challenges" that GNSO Council should be concerned with
should be instead be directed to the continued attempts by those
opposed to the recommendations  to manipulate the outcome of this
PDP's work which is now in Council's hands. This manipulation has been
going on for a long time, including the rushed final report (it was
rushed supposedly because we were told it needed to be voted upon in
July 2018; I think it was rushed instead in order to make it more
easily attacked by those opposed to its conclusions). I pointed this
out repeatedly, including in early July:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html

when the report's recommendations weren't put to a vote like it was
supposed to be, as evidenced by the motion that was presented in
advance of the GNSO Council meeting that didn't include a vote.

5. It's crucial to have studied the origins of the UDRP, to understand
Consensus Recommendation #5, yet none of what follows is in the Final
Report or in subsequent documents provided to Council.

The history of the UDRP is documented at:

https://www.icann.org/resources/pages/schedule-2012-02-25-en
https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en

"The proposals were designed to provide trademark holders with the
****same rights**** they have in the physical world, to ensure
transparency, and to guarantee a dispute resolution mechanism
*****with resort to a court system.***** " (emphasis added)

Notice the "same rights" and "with resort to a court system." It can't
get much clearer than that. Recommendation #5 provides exactly that,
the same rights and resort to the court system.

The White Paper goes on to say:

"Further, it should be clear that whatever dispute resolution
mechanism is put in place by the new corporation, that mechanism
should be directed toward disputes about cybersquatting and
cyberpiracy and not to settling the disputes between two parties with
legitimate competing interests in a particular mark. ****Where
legitimate competing rights are concerned, disputes are rightly
settled in an appropriate court.**** (emphasis added)

Again, Recommendation #5 accomplishes that, by ensuring that it is up
to the appropriate courts to decide on the merits. IGOs ignore these
facts, and are happy to instead push for binding arbitration in
unaccountable kangaroo arbitration panels as being "good enough" for
registrants.

The issues surrounding access to the courts for a decision on the
merits was well understood at the time the UDRP was created nearly 20
years. Section 4(k) of the UDRP and the corresponding URS rules were
an attempt to accomplish that, but they are not entirely effective
(Recommendation #5 fixes this).

Indeed, if one goes to the Staff report at the time:

http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm

"DNSO Recommendation 4(b): The need to address the situation wherein a
domain name registrant who has been unsuccessful in the ADR process is
effectively prevented from "appealing" the result in a court due to
the absence of a cause of action in contract, tort, regulation,
statute or constitutional right. It was noted that there is an
imbalance in the WIPO process in that an unsuccessful complainant will
always be able to judicially challenge an ADR result by virtue of the
jurisdiction of the registry being imposed over the dispute by the
WIPO Report;

Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that
both registrants and challengers should have ****equal opportunities**** to
"appeal" an outcome of the administrative dispute-resolution
procedure. Some commentators have suggested that the DNSO-recommended
proposal would afford challengers significantly superior "appeal"
rights. The staff notes that this result would be a clearly unintended
consequence of the DNSO proposal. The staff believes that this concern
can and should be fully addressed in the implementation of the
dispute-resolution policy, which should explicitly negate this
possibility." (emphasis added)

The possible inability to have the access to the courts for a decision
on the underlying merits due to immunity issues for IGOs was another
"unintended consequence", which would be fully corrected by the
Consensus Recommendation #5.

Furthermore, to understand the development of UDRP's Section 4(k), see:

http://www.dnso.org/dnso/notes/19990729.NCwga-report.html

"   The need to address the situation wherein a domain name
registrant who has been unsuccessful in the ADR process is effectively
prevented from �appealing� the result in a court due to the absence of a cause
of action in contract, tort, regulation, statute or constitutional right.  It
was noted that there is an imbalance in the WIPO process in that an
unsuccessful complainant will always be able to judicially challenge an ADR
result by virtue of the jurisdiction of the registry being imposed over the
dispute by the WIPO Report.

One suggested solution to this problem which WG-A agrees merits further
consideration, is the requirement that a complainant enter into a contract with
the registrant (or the arbitral institution in a jurisdiction that recognizes
third party beneficiary agreements) as a condition of initiating ADR, that
provides for consent to be sued in the jurisdiction where the registrant is
ordinarily resident, and in the jurisdiction where the subject registrar is
located (assuming both parties do not agree to voluntarily contract out of the
right to subsequent litigation). "

[This history was pointed out in the RPM PDP recently, see:

https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ]

So, in other words, Consensus Recommendation #5 is entirely consistent
with the history and purpose of the UDRP, and fixes issues that were
not anticipated correctly by the current existing policy.
Recommendation #5 puts both parties back in the same legal position
they'd be had the UDRP/URS not taken place (which interfered with the
access to the courts to render a final decision on the matter), to
ensure that it's the courts that have the final say on the merits of a
dispute, without interference by ICANN or its policies. It makes sure
that ICANN is not granting either side any better outcome or rights
from the UDRP/URS than exists in the real courts. In other words,
Recommendation #5 ensures that both the IGO and the domain name
registrant have the outcome determined by the courts, as was expressly
desired in the development of the UDRP (which the URS is modeled on).

Everything put forward by the IGOs, in trying to discredit the PDP's
final report, is an attempt for IGOs to create a process that would
give them better outcomes and better rights than exist in real
national courts and under national laws. They want an uneven playing
field, one that advantages themselves to the detriment of others.
Those attempts should be vehemently opposed (which the Consensus
accomplished), as otherwise it would mean ICANN would be creating its
own "new law", rather than creating policies that are consistent with
***existing*** laws of nations.

In conclusion, GNSO Council should adopt all the recommendations in
the final report.

If it requires a better explanation for the recommendations, that too
can certainly be done (that's why I filed the 2nd Section 3.7
appeal!). But, that better explanation should not be done by those
who've actively tried to undermine the work.

Sincerely,

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