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

Greg Shatan gregshatanipc at gmail.com
Tue May 8 04:20:57 UTC 2018


Co-Chairs,

I would like to direct your attention to the email below, in particular the
highlighted sections.

Best regards,

Greg
---------- Forwarded message ----------
From: George Kirikos <icann at leap.com>
Date: Mon, May 7, 2018 at 8:14 AM
Subject: Re: [gnso-rpm-wg] Procedures for RPM Working Group Co-Chair
Selection
To: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>


Hi Greg,

I think folks can discern the difference between thoughtful and
penetrating analysis that seeks to arrive at the truth, and your
superficial analysis, which is quick to use labels such as "alternate
reality" and "spin" rather than use actual facts or reasoning. Recall
that before you engaged, that WIPO page was static. WIPO didn't need
to win you over. You were already their apologist, ready to say
anything to defend them, and advocate for them. That advocacy did more
harm than good, because up until then, they didn't feel the need to
change their page at all.

It's funny how you spent time talking about your credentials in a
prior email, but actually never cited a single "case" to demonstrate
those credentials in action. A quick search at NAF and WIPO for the
word "Shatan" only delivers a single match, for the IdiotsGuide.com
UDRP:

http://www.adrforum.com/domaindecisions/95559.htm

where your advocacy was for the *losing* side, taking a real
shellacking from John Berryhill in a unanimous decision.

So, let me give you the "Idiot's Guide" to what transpired. WIPO
flinched. WIPO reacted. That's a fact. Remember, WIPO could have done
nothing, but they felt they had no choice but to do something. Not to
convince you (since you were already 100% on their side), but to
convince those like me who they felt needed convincing. I remain
unconvinced. All your continued words of advocacy fail, since you
didn't need convincing.

Rather that solving the issue, WIPO actually managed to make things
worse by changing their standard to specifically exclude the cases at
the core of this controversy. And then they demonstrated that they're
ready to deploy a **double-standard** to exclude the MoobiTalk.com
case that even you agreed belonged on the page under the prior
standard:

https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002971.html

"*Moobitalk* is different -- it is an actual court decision (indeed,
two court decisions), which I think would be of some interest to those
looking for court decisions reflecting the outcome of judicial
challenges to UDRP cases.  In this instance, I would join George in
requesting (respectfully, in my case) that WIPO post the decisions in
this case on the "Select UDRP-related Court Cases" page."

Indeed, there are alternate realities here. You want people to take
the "blue pill", whereas I want folks to take the "red pill"

https://en.wikipedia.org/wiki/Red_pill_and_blue_pill

The red pill represents knowledge (more cases are better than fewer
cases) and the brutal truth that something is terribly wrong with the
UDRP, as represented by those court actions that achieved justice for
registrants. The blue pill represents blissful ignorance, that those
cases should be swept under the rug, lest they shatter the illusion
that everything is fine.

Perhaps in your alternate reality, you won the IdiotsGuide.com UDRP.
If I had to choose an advocate for them, I would certainly choose you,
someone experienced at being on the losing side. Thank you for your
efforts that have helped to force WIPO's hand to change their page,
and demonstrate the enormous lengths they're prepared to take in order
to exclude cases from their list.

Sincerely,

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



On Sun, May 6, 2018 at 9:39 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
> This is not a test of "neutrality," except in your own mind (where doing
> your bidding is neutral and everything else is biased).  And your
"alternate
> reality" version of "events" is the poster child for a non-neutral spin
on a
> simple and logical action (albeit one that displeased you).
>
> I do agree with one thing -- folks can decide for themselves.  I'll leave
it
> at that.
>
> Best regards,
>
> Greg
>
> On Sun, May 6, 2018 at 8:27 PM, George Kirikos <icann at leap.com> wrote:
>>
>> 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”
>> >> >>
>> >> >>
>> >> >>
>> >> >>
>> >> >>
>> >> >>
>> >> >> _______________________________________________
>> >> >> gnso-rpm-wg mailing list
>> >> >> gnso-rpm-wg at icann.org
>> >> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>> >> _______________________________________________
>> >> gnso-rpm-wg mailing list
>> >> gnso-rpm-wg at icann.org
>> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>> >
>> >
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>
>
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