[Gnso-ppsai-pdp-wg] FW: PPSAI - suggestions for III.B, C, and E

Fri Apr 17 20:16:20 UTC 2015

I'd be interested to hear the response to Kiran's question.  In the spirit of trying to understand the concern on this point, let me also ask another question:

For anybody who thinks that the language in III(C)(3) that Val proposed is concerning, what is the example or fact pattern that you're concerned about?  In other words, if what we're considering is the difference between:

1)      "the Provider provides adequate reasons against disclosure"; and

2)      "the Provider provides sufficient reasons for believing that the Customer is not infringing the Requestor's claimed intellectual property rights, and/or that the Customer's use of the claimed intellectual property is defensible"

then what would fall in Bucket (1) that wouldn't also fall in Bucket (2)?  Is the argument that there might be some "reasons" that might be "adequate" other than the Customer is not infringing or that the use is defensible?  If so, what would those be?  And haven't we covered them elsewhere - e.g., pretext in III(C)(5)?

From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kiran Malancharuvil
Sent: Thursday, April 16, 2015 4:24 PM
To: James M. Bladel; PPSAI WG
Subject: Re: [Gnso-ppsai-pdp-wg] FW: PPSAI - suggestions for III.B, C, and E

Can someone please explain to me why the language in III.(c)(3) is suddenly objectionable when, as noted below by Todd, it's a mirror image of the language around what the Requestor must allege?

Thanks,

Kiran

From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of James M. Bladel
Sent: Thursday, April 16, 2015 12:29 PM
To: PPSAI WG
Subject: [Gnso-ppsai-pdp-wg] FW: PPSAI - suggestions for III.B, C, and E

Not sure why this message didn't hit the list.  Apologies if you rec'd two copies.

Thanks-

J.

From: James Bladel <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>
Date: Thursday, April 16, 2015 at 8:21
To: Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>, "Williams, Todd" <Todd.Williams at turner.com<mailto:Todd.Williams at turner.com>>, PPSAI WG <gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>>, Graeme Bunton <gbunton at tucows.com<mailto:gbunton at tucows.com>>, "Metalitz, Steven" <met at msk.com<mailto:met at msk.com>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E

While I have no specific concerns with the changes for III.(c)(2), the changes for III.(c)(3) are concerning and I would either like to (a) hold publication of our Initial Report so we can discuss Tuesday, or (b) revert to the previous language.

Thanks-

J.

From: Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>
Date: Thursday, April 16, 2015 at 5:31
To: "Williams, Todd" <Todd.Williams at turner.com<mailto:Todd.Williams at turner.com>>, PPSAI WG <gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>>, Graeme Bunton <gbunton at tucows.com<mailto:gbunton at tucows.com>>, "Metalitz, Steven" <met at msk.com<mailto:met at msk.com>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E

All,
I think there are a lot of major language shifts taking place a) after our calls and b) in hopes of bringing final language into the Report that is being finalized today. Unfortunately, I think Val's language for III.C.2 and especially III.C.3 has enormous consequences and cast a major change to language that has remained essentially unchanged in our many weeks of discussion. The original language was essentially brought to the WG, accepted by the WG and ready to be put out for comment by the WG -- with brackets (as in so many other parts of the report) -- but all the time with the language of the committee that drafted it.

Now we are being asked to review such changes a) under a fast deadline and b) with no in-person comment.  I have to object - and call for the original language to stay. If we want to meet next week to talk about these new proposed changes, let's do that. But we have no precedent of accepting major changes without exploring them in person and on the calls -- as we have explored every other significant change.

Best,
Kathy
:
Thanks Kathy.  On III(C)(2) and (3): I don't think we ever had agreement on the language.  "Adequate" was still bracketed precisely b/c we hadn't agreed on that standard (I think the initial language was "compelling", and I think it had changed a couple times in between).

In the spirit of trying to address some of our loose ends and leave as little language bracketed as possible, I think Val's proposal for III(C)(2) and (3) does a good job of finding a "third way" between the "compelling" camp and the "adequate" camp.  Rather than pick b/w those two standards, it just says: let's use the mirror of what the Requestor has to allege under II(A)(6)(a), II(B)(7)(A), and II(C)(6)(A).  As a way of bridging the current gap that we've got, that seems reasonable to me: if the language is good for the Requestor, why wouldn't it be good going the other way?  Or, to put it another way: why would that language "seem a little ambiguous and hard to prove" going one way but not the other?

I agree with you that we don't want a lot of additional work and discussion at this point.  I guess where I disagree with you is on which of the two options that is on the table - 1) fighting it out b/w "compelling" and "adequate" or 2) incorporating language that we've agreed to elsewhere - is more likely to lead to additional work and discussion.

TW.

From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kathy Kleiman
Sent: Wednesday, April 15, 2015 10:02 AM
To: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E

Hi Val,
Thank you for new language as we work to close the report for publication. May I ask a few questions?

In III.B.2 - the change from [existing] (2)  state to Requestor in writing or by electronic communication its reasons for refusing to disclose to
[new/proposed] (2) state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose --

seems to raise the bar on the response of the Provider to the Requestor -- and there may be many Requests!  So let me as, what are you thinking of in terms of the "specific reasons" that a Provider might have to give?  How extensive or detailed would you like their answers to be?

Re: III.C.2 and 3 I think the existing language is quite good -- with apologies, because I know the genuine good will in which the changes are offered, bringing in a Customer's "belief" and the Providers "belief" seems a little ambiguous and hard to prove.

I look forward to looking at III.B.2 with you... but re: III.B.3, I think we had pretty good agreement on the existing language and these new proposals may result is a lot of additional work and discussion.

Best,
Kathy
1.

On 4/14/2015 4:12 PM, Sherman, Valeriya wrote:
PPSAI Team:

Given that we are getting ready to publish the initial report, we'd like to propose the following, hopefully non-contentious suggestions to III.B, C, and E.

We look forward to your thoughts.

B.            ...

(1)                ...

(2)                state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose.

(3)                ...

C.            Disclosure can be reasonably refused, for reasons consistent with the general policy stated herein, including, but not limited to any of the following:

(1)                ...

(2)                the Customer has objectsed to the disclosure and has providesd [adequate sufficient] reasons against disclosure, including without limitation a reasonable defense for its use of the trademark or copyrighted content in question for believing (i) that it is not infringing the Requestor's claimed intellectual property rights, and/or (ii) that its use of the claimed intellectual property is defensible;

(Note: This language tracks the Requestor's standards warranting disclosure, and is the opposite side of the same coin.)

(3)                the Provider has found provides [adequate sufficient] reasons against disclosure for believing (i) that the Customer is not infringing the Requestor's claimed intellectual property rights, and/or (ii) that the Customer's use of the claimed intellectual property is defensible;

(4)                ...

(5)                ...

...

E.       If refusal to disclose is based on objection to disclosure by the Customer, Requestor  be informed of the reasons for objection.  (Could be consolidated with III B (2)).

Valeriya  Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law

202-973-2611 phone
202-263-4326 fax
www.sgrlaw.com<http://www.sgrlaw.com>
vsherman at sgrlaw.com<mailto:vsherman at sgrlaw.com>

1055 Thomas Jefferson Street, N.W.
Suite 400
Washington, D.C. 20007

Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office.
She is not admitted in the District of Columbia.

[cid:image001.jpg at 01D07928.5186DCF0]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP

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