[Gnso-newgtld-wg] What behaviors would we consider undesirable?

Mike Rodenbaugh mike at rodenbaugh.com
Mon Feb 3 20:23:33 UTC 2020


I agree with Kristine, 100% on this.

Thanks,
Mike

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.law


On Mon, Feb 3, 2020 at 11:48 AM Dorrain, Kristine via Gnso-newgtld-wg <
gnso-newgtld-wg at icann.org> wrote:

> I have deep reservations about relying on the Circle ID and DI blog posts
> to support the idea that private resolution is bad.  Blogger opinion is no
> more significant than any other individual’s opinion even though they may
> have a wider platform.  In fact, ICANN and the community established that
> private resolution was the preferred and default solution in the last
> round.  It was largely successful and it was NOT required.  No party HAD to
> participate.  We keep losing sight of the fact that ANY SINGLE PARTY could
> have removed the resolution to an ICANN Auction of Last Resort.
>
>
>
> We have no historical basis in this or any other PDP for throwing out
> largely successful programs (and replacing them with something new and
> untested) because an extremely small percentage of cases didn’t go as
> anticipated.  We will not fix every problem, or right every alleged wrong.
> The goal is to clean up things we can all agree were a broad, systemic
> problem.
>
>
>
> In short:
>
> Jeff asked, “Are Private Auctions (whether done legitimately or not)
> undesirable for resolving contention sets?  Does it harm the reputation of
> ICANN or the program?“
>
> NO (see above)
>
>
>
> Thanks,
>
>
>
> Kristine
>
>
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *Pruis, Elaine via Gnso-newgtld-wg
> *Sent:* Wednesday, January 29, 2020 10:29 AM
> *To:* AAikman at lrrc.com; jeff.neuman at comlaude.com;
> lists at christopherwilkinson.eu; gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] What behaviors would we consider
> undesirable?
>
>
>
> All,
>
> I have deep reservations about removing the phrase “collusion” from the
> subpro goals, and potentially, final recommendations.
> Jeff stated “I am not sure we can say for a fact that collusion occurred
> “in order to deceive or cheat someone”” but there is plenty of public
> information suggesting that is exactly what occurred in the last round,
> both in private contention resolution as well as objection proceedings.
>
>
>
> From Circle ID 2016:
> <http://www.circleid.com/posts/20161107_afilias_cynical_attempt_to_secure_a_windfall_at_community_expense/>
>
> “Afilias' motivation could not be more transparent: in a private auction,
> either tens of millions of dollars will be paid to it for losing the
> auction or, if NDC is disqualified, Afilias stands to secure the .web new
> gTLD at a much lower non-competitive price. Indeed, it was just such
> maneuvering that caused Afilias to commit, in writing, a demonstrable
> violation of the Blackout Period as it sought agreement among the
> contention set to substitute a private for a public auction a few days
> before the public auction took place. Pursuant to the express terms of the
> Guidebook, this violation in and of itself could disqualify Afilias.”
>
> From Domain Incite, 2018
> <http://domainincite.com/23758-verisign-says-afilias-tried-to-rig-web-auction>
> :
>
> “Afilias and other bidders proposed that a private auction be performed
> pursuant to collusive and potentially illegal terms about who could win and
> who would lose the auction, including guarantees of auction proceeds to
> certain losers of the auction.”
>
>
>
> The solution to this problem is *to not suggest support for, or even
> allow for, private auctions*.
>
> ICANN IRP filings
> <https://www.icann.org/en/system/files/correspondence/omahoney-et-al-to-klitgaard-21nov14-en.pdf>
>
> “To make matters worse, it appears that Donuts is acting in collusion with
> another similarly-situated “group registry” applicant to magnify the
> adverse impact of these tactics on the Sport Communities. The timing of
> Donuts’ actions before the Ombudsman and this present IRP filing shows that
> Donuts and Famous Four Media (“FFM”, the second group registry applicant in
> the .sport/.sports and .rugby contention sets) collude in their strategy of
> procedural harassment. Donuts waited for the multiple frivolous proceedings
> submitted by FFM to be dismissed and then took over. These two portfolio
> applicants thus managed to maximize the delays suffered by the Sport
> Communities. IRB Letter at 2-3. As both are funded by venture capital and
> both are engaged in private and ICANN auctions for many TLDs they have
> applied for, they have an interest in perpetuating uncertainty as to the
> status of TLDs that target communities. In this way, they maintain
> artificial financial valuation for the applications in their portfolio
> which target communities and were prevailed upon by way of ICANN’s
> Community-based objections or ICANN’s Community Priority Evaluation.“
>
> Famous Four Media Limited and Donuts Inc. Abusive, Baseless and Harmful
> Actions Concerning the .Rugby gTLD
>
> “The secret, ex parte nature of the actions of Famous Four and Donuts
> exacerbates their pernicious impact on the IRB.” And,
>
> “Now, in a repeat of their earlier strategy, Famous Four has followed the
> apparent dismissal of the CEP complaint of Donuts with perfectly
> coordinated timing.”
>
>
>
> In fact, the classic Vickrey model with bids at application would
> eliminate contention sets altogether, which could further minimize the
> tactical use of objection proceedings.
>
>
>
> For the preservation of ICANN’s reputation and the longevity of the MSM,
> we as a community need to do everything we can to remove any opportunities
> for, *or even the perception of*, misconduct or inappropriate behavior.
> With the recent .org transaction now widely covered in the mainstream
> media, there is a lot of focus and attention on ICANN.  And many detractors
> are looking for any excuse to delegitimize the organization.  Let’s not
> give them any more ammunition.
>
>
>
> Jeff asked, “Are Private Auctions (whether done legitimately or not)
> undesirable for resolving contention sets?  Does it harm the reputation of
> ICANN or the program?“
>
> YES (see above)
>
>
>
> Elaine
>
>
>
>
>
> *From: *Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> on behalf of
> "Aikman-Scalese, Anne" <AAikman at lrrc.com>
> *Date: *Tuesday, January 21, 2020 at 11:21 AM
> *To: *Jeff Neuman <jeff.neuman at comlaude.com>, "
> lists at christopherwilkinson.eu" <lists at christopherwilkinson.eu>, "
> gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
> *Subject: *[EXTERNAL] Re: [Gnso-newgtld-wg] What behaviors would we
> consider undesirable?
>
>
>
> I have suggested replacing the word “collusion” in the Google doc – see
> suggested language there.
>
> Anne
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *Jeff Neuman
> *Sent:* Monday, January 20, 2020 3:13 PM
> *To:* lists at christopherwilkinson.eu; gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] What behaviors would we consider
> undesirable?
>
>
>
> *[EXTERNAL]*
> ------------------------------
>
> Thanks Christopher.
>
>
>
> Collusion is defined
> <https://dictionary.cambridge.org/us/dictionary/english/collusion> as
> “agreement between people to act together secretly or illegally in order to
> deceive or cheat someone.” I am not sure we can say for a FACT that
> collusion occurred “in order to deceive or cheat someone.”  Yes, parties
> did work in secret and came up with “agreements”, but the second element or
> deceit or cheat is just as important.
>
>
>
> In the last round the Applicant Guidebook not only allowed working in
> private to resolve contention sets, but it encouraged it.  The mere act of
> having private auctions does not equate to there being collusion.
>
>
>
> That said, we still may want to list collusion as an “undesirable
> activity”; but collusion would include the “in order to deceive or cheat
> someone.”
>
>
> The second question, however, is do we believe that private auctions, in
> and of themselves, for the New gTLD Program, should be considered
> “undesirable activity.”  Although not “collusion”, we could still attempt
> to disallow them.
>
>
>
> That is what we are trying to get a sense of from the group.  Are Private
> Auctions (whether done legitimately or not) undesirable for resolving
> contention sets?  Does it harm the reputation of ICANN or the program?
>
>
>
> Please note, as one of the Co-Chairs, I am not taking a position on this,
> other than to note that many of the comments (including from the GAC, ICANN
> Board, NCSG, some registries, BC, Gov’t of India, etc.) stated in their
> comments that private auctions where funds are distributed back to the
> losing applicants, may not be desirable.  Other groups, including some
> registries, the RrSG, the IPC, Neustar, BRG, etc. however, did support
> private auctions where are applicants agree to participate.
>
>
>
> Thanks.
>
>
>
> Senior Vice President
>
> *Com Laude | Valideus*
>
> D: +1.703.635.7514
>
> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *lists at christopherwilkinson.eu
> *Sent:* Monday, January 20, 2020 3:44 PM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] What behaviors would we consider
> undesirable?
>
>
>
> Good evening:
>
>
>
> I strongly 'suggest' that we do not want to replace the word 'Collusion'
> in this context.
>
>
>
> 1. Collusion took place in the last round, otherwise there could not have
> been any private auctions.
>
>
>
> 2. The fact that we are discussing this at all strongly suggests - to the
> outside world - that we would prefer to dissimulate that fact.
>
>
>
> 3. ICANN is the regulator of the conditions of competition in this sector;
> if we cannot deal with this matter, it severely undermines the original
> rationale for having ICANN at all.
>
>
>
> Regards
>
>
>
> CW
>
>
>
>
>
>
>
> On 17 Jan 2020, at 17:30, Aikman-Scalese, Anne <AAikman at lrrc.com> wrote:
>
>
>
> I put some suggested language in the Google doc to replace the word
> “Collusion”:
>
>
>
>
> https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVTjKwk/edit?usp=sharing
>
> Anne
>
>
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf
> Of *Rubens Kuhl
> *Sent:* Friday, January 17, 2020 2:58 AM
> *To:* Dorrain, Kristine <dorraink at amazon.com>
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] What behaviors would we consider
> undesirable?
>
>
>
>
>
> Kristine,
>
>
>
> This is a not a reasonable business adjustment. If the contention set
> seems "unbeatable", one could withdraw or simply wait the appropriate
> refund. A similar way to see #2 is a participant in a race that starts
> extorting other racers when it realises it won't win the race.
>
>
>
> It doesn't matter that the original intent had good faith; if someone
> switches to a bad behaviour on the fly, then it's now up for a new
> assessment of its attitude.
>
>
>
>
>
> Rubens
>
>
>
>
>
> On 16 Jan 2020, at 20:57, Dorrain, Kristine <dorraink at amazon.com> wrote:
>
>
>
> Hi Rubens, with respect to #2, you admit good faith intent at the time of
> application.  At what point would an applicant’s reasonable business
> adjustment reacting to the unforeseen business impact of third party
> applications and business decisions switch the first applicant’s good faith
> to bad faith?  It seems like the community would get to use the benefit of
> hindsight to judge the reactionary business decisions made by other
> applications in their business strategy.
>
>
>
> Kristine
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf
> Of *Rubens Kuhl
> *Sent:* Thursday, January 16, 2020 1:14 PM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] What behaviors would we consider
> undesirable?
>
>
>
>
>
> <Leadership Hat Off>
>
>
>
> I will start with two different although similar bad behaviours:
>
> - Apply with no intention to actually run the TLDs, just to get into
> private auctions and profit from losing them.
>
> - Apply with intent to run the TLDs, but after contention sets are
> revealed, change strategy to profit from losing some TLDs instead of
> fighting to get them.
>
>
>
>
>
>
>
> Rubens
>
>
>
>
>
>
>
>
> On 16 Jan 2020, at 17:17, Jeff Neuman <jeff.neuman at comlaude.com> wrote:
>
>
>
> All,
>
>
>
> On the call early this morning (for some of us), while we were discussing
> the goals/objectives to consider when selecting a mechanism of last resort
> to resolve string contention, a very important question was asked by a
> participant on the call.  The question demonstrated that what one person
> believes is “Bad Faith” other people may not believe is “bad faith” with
> respect to mechanisms to resolve contention sets.
>
>
>
> So, with the e-mail chain, I would like for members of the Working Group
> to discuss what behaviors they would consider to be of the type that we
> would like to preclude?  And by the same token, what are the types of
> activities that we know we would like to allow.
>
>
>
> For example, we believe from most of the comments that have come in as
> well as in our discussions, that some forms of private resolution have been
> deemed acceptable.  This includes the creation of joint ventures between
> applicants (assuming public comment, etc.), potentially revising
> applications to address concerns (eg., trademark owner agrees to withdraw
> its application if other applicant agrees to mitigate trademark abuse), 2
> trademark owners agree to modify strings to enable both to have their own
> TLDs (eg., .deltafaucets or .deltaair)), etc.
>
>
>
> We have also heard from the ICANN Board that they may believe that
> participating in private auctions with the sole purpose of losing and using
> those to fund other auctions may not be as desirable.
>
>
>
> Though the next call with not be on this topic, we did want to put this
> issue out on e-mail.  Please discuss.
>
>
>
> Thanks.
>
>
>
>
>
>
>
> *Jeff Neuman*
>
> Senior Vice President
>
>
>
>
> *Com Laude | Valideus *1751 Pinnacle Drive
>
> Suite 600, McLean
>
> VA 22102, USA
>
>
> M: +1.202.549.5079
>
> D: +1.703.635.7514
>
> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
> www.comlaude.com
>
>
> <image003.jpg>
>
>
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