[Gnso-newgtld-wg] Deadline 30 June - Comments on Revised Draft Recommendations - Package 6

Thu Jul 9 17:33:31 UTC 2020

Kathy,

Please do not conflate the issue of the co-chairs decision to not include advocacy language in the text with laying out the issues clearly for the public.  Adding terms like “extensive” before the words “public comment” does not add clarity, but rather adds subjectivity.  Your “extensive” is someone else’s “non-extensive”.  Some have argued for example that public comment only included those comments from competitors of the Closed Generic TLD applicants and therefore may have been skewed.  And of course some have argued that the fact that there were dozens of comments does show that it was “extensive”.

The words “ban” and “effective ban” are clearly subjective terms.  Objectively one could say that as a result of the Board’s resolution, Closed Generics were not allowed to proceed in 2012.  But the Board never said that they would never be allowed which is what the term “ban” implies.  That term is defined as “an official or legal prohibition”.  Factually, that is not what the Board did and that is why the language was changed.  To state that it was a ban skews the argument to the position we know you take (and away from those like Paul).  But our job is not to steer the public comment in one way or the other. If that is your definition of not laying out the issues well, then yes, according to that definition, we have not.

You state that our section is “missing so much basic information.”   Can you please explain what basic factual information is missing.  I noticed you listed the strings that were considered by the GAC to be “generic”.  Although we did not list them, we did include a link that cites them.  If we want to list them out as opposed to just a link, great we can do that.

The rationale section lays out the various arguments that have been made in objective terms.  We note that you want to include statements like: “The Working Group heard extensively from those who remain concerned about the monopolization and exploitation of basic industry terms by a single (often dominant) competitor in the field.”  But we believe statements like that are covered in citing the Initial Report which has pages and pages worth of the arguments made both for and against Closed Generics.

Remember, this is NOT the first time we are seeking public comment on Closed Generics.  We got comments on Closed Generics during Community Comment 1, Community Comment 2, and the initial report.  We also got many comments on this topic from the GAC, individual GAC members and members of the At Large.  We extensively reviewed the comments we got from the last round as well.  So although you believe we need to specifically call out the topic of Closed Generics for public input, please note that leadership is not sure that we need that input as we believe it is not likely to yield any results that are different from the previous 4 comment periods that included this topic.

Sorry for the long note, but please stay away from the accusations unless you truly believe that Leadership has done something wrong.  And if you believe that we have, please bring that up to us and/or escalate the issue to Flip, our GNSO Council Liaison.   We are not infallible of course.

Sincerely,

Jeff

Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
Jeff at JJNSolutions.com
http://jjnsolutions.com<http://jjnsolutions.com/>

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Kathy Kleiman
Sent: Thursday, July 9, 2020 12:51 PM
To: McGrady Paul D. <PMcGrady at taftlaw.com>; Kathy Kleiman <kathy at kathykleiman.com>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline 30 June - Comments on Revised Draft Recommendations - Package 6

Hi Paul,
I greatly appreciate your email.  I'll respond quickly now, and in more depth later day (RPM Working Group meeting soon, as you know!).

On this most difficult and sensitive of all of the issues in our SubPro WG is not laid out well for the public. This is not your fault - or mine - but it is key that it be rectified before we go public with this summary/request for comment.

"Ban" and "effectively ban"  are not spin, but clear words showing the impact of the resolution. I don't understand the mantra I keep hearing about the words of the Board's resolution.  Paul, you and I know that only lawyers read resolutions and Supreme Court cases. :-)  Everyone else cares about what the resolution means - and what impact it created.  That's what the words "ban" and "effectively ban" mean -- and I renew my objection to their removal (and the procedural precedent my request has under our procedural rules).

This section is missing so much basic information -- we don't provide the public with anything clear or factual about "closed generics are.". This means we will only hear from "insiders" with vested interest and not the broader ICANN and Internet Community.  Because we have not explained key facts, issues and background -- plus the huge sensitivity of the whole issue and what is at stake -- people won't be able comment.  Facts are key - and they're missing (and key ones are newly deleted).

I'm glad we agree that we should talk about next steps and "What happens if the WG does not agree?"  Shout-out to Jeff and Cheryl: what could be more important to share?   We've spent weeks (months?) on this question. We have to publish to the community..

We have not done our job until we lay this all out clearly.  I look forward to working with all of you. And renew my objection to the language now being floated. Only the most innermost insiders will have a clue...

Best, Kathy

----- Original Message -----
From:
"McGrady Paul D." <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>

To:
"Kathy Kleiman" <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>, "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Cc:

Sent:
Thu, 9 Jul 2020 15:26:25 +0000
Subject:
RE: [Gnso-newgtld-wg] Deadline 30 June - Comments on Revised Draft Recommendations - Package 6

Thanks Kathy.

Taking each in turn:

On Monday, I objected to the deletions of words that made Section 2.7.3 (Closed Generics) clear and accessible to the larger ICANN Community.  The words “ban” and “effectively ban” are clear and accurate; that’s exactly what the Board resolution did in the first round.  By the rules of our editing, this objection should act as a bar on the change. We agreed for these “I can’t live with it” changes that we all agree or they don’t go in– and we have set aside many fine changes for lack of full agreement.

“Ban” and “effective ban” are spin.  Members of the WG objected to them all along the way.  The spin somehow made it into the draft, which I and many others objected to.  Spin is never more accurate than facts, which is why I suggested we put in the actual facts  - what the Board actually did.  I understand that what the Board actually did may not help those who want there to be a ban on so-called closed generics.  But silencing the Board’s actual voice in favor of spin won’t inform the community of what is really going on.  If we think the community can’t read and understand Board resolutions (I don’t, it is pretty darn clear), well, clarity of Board resolutions is outside the scope of this PDP.

Further, we heard from George Sadowsky, then a member of the Board, that the 2015 Board resolution on Closed Generics is meant to stand until the GNSO comes up with another policy. If we had any question about what the Board meant, that’s our answer and we should share it.

One former member of a Board can’t speak for the Board.  That is not how Board’s operate.  They speak with one voice via resolutions.   Further, there is no need for anyone to speak for the Board.  The Board’s resolution says what it says.  I understand that opponents of so-called closed generics would prefer that George’s view of the Board’s resolution governs rather than what the Board actually said, but that is not how Boards work.  We shouldn’t substitute George’s opinion (no matter how much we may love and appreciate George) for the Board’s actual resolution (which is why I asked that it be included in the draft)  Should an applicant run in to trouble later and try to rely on George’s opinion rather than the Board’s resolution, that won’t be very helpful to the applicant (or anyone else).

Finally, I heard (and agree) that the question of default is unclear to the public. This procedural question is very important for the public to understand and comment on, and not clear in the current version.

We have agreement here, Kathy.  But, the co-chairs did not want to discuss what the status quo means and they have now cut off discussion on this entire topic on our calls, so I guess we have to live with the ambiguity.  If, however, the goal here is to claim that the status quo is a ban or effective ban, I don’t think that has any legs (due to the Board’s resolution).

I am willing to withdraw my objections if we add further language to a) clarify the Board resolution and GAC advice, and b) make clear the additional question of “default” in future rounds. To that end, I offer the attached language (showing the full edit history of the WG) with these newly-offered changes. Attached.

Kathy, we don’t need to editorialize what the Board said, especially when the editorial is nothing more than trying to rework in the myth of the ban or effective ban.  It is also quite unhelpful for you to spin those of us who want to stick with the Board’s resolution rather than your spin as somehow “ignoring the Board.”  So, I neither support the very lopsided document that you submitted nor your attempts to reintroduce the spin here.  Let’s stick with what the Board said instead.  Facts are better than spin. Always.

Best,
Paul

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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Kathy Kleiman
Sent: Wednesday, July 8, 2020 9:27 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Deadline 30 June - Comments on Revised Draft Recommendations - Package 6

Hi All,
On Monday, I objected to the deletions of words that made Section 27.3 (Closed Generics) clear and accessible to the larger ICANN Community.  The words “ban” and “effectively ban” are clear and accurate; that’s exactly what the Board resolution did in the first round.  By the rules of our editing, this objection should act as a bar on the change. We agreed for these “I can’t live with it” changes that we all agree or they don’t go in– and we have set aside many fine changes for lack of full agreement.
Further, we heard from George Sadowsky, then a member of the Board, that the 2015 Board resolution on Closed Generics is meant to stand until the GNSO comes up with another policy. If we had any question about what the Board meant, that’s our answer and we should share it.
Finally, I heard (and agree) that the question of default is unclear to the public. This procedural question is very important for the public to understand and comment on, and not clear in the current version.
I am willing to withdraw my objections if we add further language to a) clarify the Board resolution and GAC advice, and b) make clear the additional question of “default” in future rounds. To that end, I offer the attached language (showing the full edit history of the WG) with these newly-offered changes. Attached.
Best, Kathy

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