[gnso-rpm-wg] Procedures for RPM Working Group Co-Chair Selection

Mon May 7 00:27:31 UTC 2018

Hi Greg:

As I originally noted, the issue was raised in order to help assess
Brian's commitment to neutrality:

https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002940.html

In other words, a simple test.

Brian might have said something like "Thank you for bringing these to
my attention. The person in charge of that page left several years
ago, so that's why no recent cases have been added. I'll see that
someone brings that page up to date."

But, as we know, that's not what happened. You must be using a
different dictionary, because what they did instead didn't "clarify"
anything at all:

https://en.oxforddictionaries.com/definition/clarify

Clarify: "Make (a statement or situation) less confused and more
comprehensible."

They were incapable of actually clarifying their prior page at all,
because any clarification would have had to properly explain the
inclusion of the lawsociety.com case, without changing the list of
cases.

Instead of actually clarifying things, they went to extraordinary
lengths to actively EXCLUDE the 4 cases, to sweep them under the rug,
lest they undermine the current UDRP itself by being pointed to as
examples by observers of something wrong with the current state of
affairs. They accomplished this by literally *changing* the standard
for inclusion (rather than clarifying their past standard), rewriting
it in order to prevent 3 of the cases from being posted under their
brand new standard. They saw which cases they wanted to exclude, and
crafted a new standard specifically designed to exclude them. Under
this *new* standard, the precedent-setting inclusion of the
lawsociety.com case could then be erased from their page (but not from
our memories).

And even then, they cannot explain away the lack of inclusion of the
MoobiTalk.com court case (which even meets their new standard for
inclusion). You attempt to argue that the page is just "select court
cases", but this goes to my point about the commitment to neutrality.
A neutral organization would have included MoobiTalk.com, because it
meets an *objective* standard. Otherwise, the only basis for not
including it is because it is an "inconvenient truth" that they don't
want to see publicized by their page. Lack of inclusion implies they
use subjective selection criteria, not objectives ones.

WIPO even had another alternative, which was to create a separate
section on that page dedicated entirely to court cases with consent
orders (if they wanted to make such a distinction). This would give
readers all the facts to make up their own minds. They did not pursue
this neutral route, either, but took the path that swept those cases
under the rug.

Even NAF (who I'm not a great fan of, obviously, given their history)
remarkably sets a *higher* standard than WIPO. Let me say that another
way -- WIPO's standard is *lower* than that of NAF. For example, at
the top of the WindCreek.com UDRP decision page:

http://www.adrforum.com/domaindecisions/1639763.htm

one will find a clear "Notice of Withdrawal of Decision" section at the top:

"The November 13, 2015 decision of the Panel in the following UDRP
proceeding is hereby withdrawn in full pursuant to the order and
Consent Judgment, dated July 10, 2017, from the U.S. District Court
for the Central District of California in Virtualpoint, Inc., dba
Captive Media v. Poarch Band of Creek Indians, dba PCI Gaming
Authority, Case 8:15-cv-02025-CJC-KES (C.D. Cal. July 10, 2017):

Poarch Band of Creek Indians dba PCI Gaming Authority v.
Tech Admin, Virtual Point, No. 1639763 (November 13, 2015).

Decision:  Withdrawn in full"

This provides observers with complete information as to the final
outcome of the domain dispute (unlike the WIPO situation, who sweeps
the final court outcomes of the domain disputes under the rug). That
was a consent judgment, too.

WIPO has to decide for themselves -- are they neutral, or are they
advocates for complainants? The lack of inclusion of the 4 cases
points to the latter. [NB: The WindCreek.com case above would be a 5th
case]

In conclusion, folks can decide for themselves whether taking
extraordinary steps to exclude those 4 cases, by changing the standard
for inclusion and then not applying the new standard evenly, in an
objective manner, is consistent with neutrality.

Sincerely,

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

On Sun, May 6, 2018 at 6:06 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> I don't know if anyone but George thinks these questions are relevant or appropriate in the context of selecting a new Co-Chair.
>
> Just in case anyone else does, the change in the WIPO page answers George's questions -- it would go something like this.  (Not to get in the way if Brian decides to answer these questions himself.)
>
> 1. Will [Brian] have WIPO update that page to list those additional court cases?
>
> No.
>
> 2. If not, why not?
>
> For those "additional court cases" that merely record party settlements: Given that a range of case-specific factors may impact court orders recording party settlements following a UDRP case, such cases are generally not listed here."  Consistent with this clarification of the page's mission, the lawsociety.com settlement has been deleted.
>
> For the other "additional court case": The page only lists "select court cases"; it is not intended to list all relevant cases.  This limited mission has been clarified by removing conflicting language that might have been misinterpreted to mean that the goal was to list "all relevant cases."
>
> So it seems that the lawsociety.com was an anomaly and not a precedent, and that my understanding of the intent of the list was correct: like virtually every other list of cases that I have ever seen, used or created, it was intended only to list decisions of the courts. Glad I didn't entertain the invitation to "cut my losses," since I had no losses to cut.  :-)
>
>
> Is this where I say:
>
> AND BOOM GOES THE DYNAMITE!
>
> Best regards,
>
> Greg
>
>
>
> On Fri, May 4, 2018 at 2:10 PM, George Kirikos <icann at leap.com> wrote:
>>
>> P.S. To supplement my own question, I notice WIPO *has* updated their page at:
>>
>> http://www.wipo.int/amc/en/domains/challenged/
>>
>> to now say:
>>
>> "This page lists select court cases known to have been issued
>> following a UDRP decision. Given that a range of case-specific factors
>> may impact court orders recording party settlements following a UDRP
>> case, such cases are generally not listed here."
>>
>> Whereas it used to say:
>>
>> https://web.archive.org/web/20170918230523/http://www.wipo.int/amc/en/domains/challenged/
>>
>> "This section captures select court orders and decisions in relation
>> to the UDRP or specific UDRP cases that have come to the attention of
>> the WIPO Arbitration and Mediation Center. While efforts are made to
>> keep this list up-to-date, the Center cannot guarantee that it
>> includes all relevant cases.
>>
>> Court cases that are pending or for which no order/decision is
>> available are not published on this list."
>>
>> Oh, and they actually *took down* the lawsociety.com case, yet didn't
>> add the MoobiTalk.com case (which still fits their brand new
>> standard).
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>>
>>
>>
>> On Fri, May 4, 2018 at 2:04 PM, George Kirikos <icann at leap.com> wrote:
>> > My specific questions for Brian go back to my earlier post:
>> >
>> > https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002940.html
>> >
>> > Will he have WIPO update that page to list those additional court
>> > cases? If not, why not?
>> >
>> > Sincerely,
>> >
>> > George Kirikos
>> > 416-588-0269
>> > http://www.leap.com/
>> >
>> >
>> > On Fri, May 4, 2018 at 12:39 PM, Julie Hedlund <julie.hedlund at icann.org> wrote:
>> >> Dear Working Group members,
>> >>
>> >>
>> >>
>> >> On behalf of the Co-Chairs of this PDP Working Group, it might be helpful to
>> >> reiterate the procedures in the Working Group Guidelines (see also below)
>> >> for selecting a Co-Chair.  Given those procedures and the fact that there is
>> >> no requirement to hold an election if one is not deemed necessary, here is
>> >> the suggestion to the Working Group for proceeding with the Co-Chair
>> >> selection process:
>> >>
>> >>
>> >>
>> >> 1.      Until end of day 08 May Working Group members should send either
>> >> their objections to Brian Beckham’s becoming a co-chair and/or specific
>> >> questions for Brian to the list;
>> >>
>> >> 2.      If no objections or questions are received, or Brian chooses to
>> >> answer any specific questions that come in before or during the 09 May
>> >> meeting, the Working Group will have the opportunity to confirm Brian’s
>> >> appointment during the 09 May meeting. In fairness to Brian, we strongly
>> >> urge that any questions for him be submitted in writing by COB on May 8.
>> >>
>> >> 3.      If objections are received or questions submitted that warrant a
>> >> discussion/response on a call, these be addressed at the 9 May meeting at
>> >> which next steps can also be decided (including an election if need be).
>> >>
>> >>
>> >>
>> >> Best regards,
>> >>
>> >> Mary, Ariel, Berry, and Julie
>> >>
>> >>
>> >>
>> >> GNSO Working Group Guidelines:
>> >> https://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-30jan18-en.pdf[gnso.icann.org]
>> >>
>> >>
>> >>
>> >> “2.1.4.2   Election of the WG Leaders
>> >>
>> >>  Unless a Chair has already been named by the Chartering Organization,
>> >> normally a Chair will be selected at the first meeting of the WG. Until that
>> >> time, the Chartering Organization’s liaison may fulfill the role of interim
>> >> Chair.  A Working Group may elect to have Co-Chairs and Vice-Chairs. Under
>> >> extraordinary circumstances, ICANN staff may be requested to perform
>> >> administrative co- ordination of the WG until such time a Chair can be
>> >> appointed. Once selected, a Working Group Chair will need to be confirmed by
>> >> the Chartering Organization (CO).  The newly elected Chair will act on a
>> >> provisional basis until the Chartering Organization has confirmed the
>> >> appointment.  If there are any objections to the selected Chair, the CO will
>> >> conduct a vote to establish whether there is sufficient support for the
>> >> selected Chair according to the voting procedures of the CO.  If not, the
>> >> Working Group will be requested to reconsider their choice for Chair and
>> >> return to the CO with a new proposal.  In the unlikely event that the
>> >> selected Chair is rejected by the CO, the CO must articulate its reason for
>> >> the rejection and the WG must be able to ask for reconsideration of the
>> >> decision. (Emphasis added)
>> >>
>> >>
>> >>
>> >> Section 2.2: A suggested procedure to conduct elections may be:
>> >>
>> >> Nominations or self-nominations;
>> >> Statements of qualifications from candidates, which sets forth the
>> >> qualifications, qualities and experience that they possess that will serve
>> >> the particular WG;
>> >> Vote by simple majority;
>> >> Notification of and subsequent confirmation by the Chartering Organization
>> >> of results of actions”
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >> _______________________________________________
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>> >> gnso-rpm-wg at icann.org
>> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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>
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