[GNSO-RPM-WG] Actions & Notes: RPM PDP WG Meeting 16 October 2019

Paul Keating paul at law.es
Fri Oct 18 19:11:35 UTC 2019 

So beyond the advertisement for Deloitte, it’s purely voluntary and thus outside of the WG mandate imho. 

Sent from my iPhone

> On 18 Oct 2019, at 16:58, claudio di gangi <ipcdigangi at gmail.com> wrote:
> 
> 
> Paul K.,
> 
> Great question.
> 
> The answer is for registry-specific (voluntary RPMs), that every registry operator is able to set up for allocating domain names in a manner: 
> 
> 1) consist with the local laws of the registry operator; and;
> 
> 2) to minimize abuse and to help create a safe, trusted namespace for Internet users, IP owners, registrants - both commercial and non-commercial.
> 
> This is a win-win for everyone because it helps promote a successful new gTLD program, where domains can be registered for commerce and free expression.
> 
> Some of these voluntary RPMs are already established in the ICANN system, such as the Limited Registration Period, which takes place after the Sunrise period is over, at the sole discretion of the registry operator.
> 
> Registries can also build other mechanisms if they so desire under the New gTLD Registry Agreement, that rely upon or leverage the TMCH, if so desired and approved by the registry and TMCH Operator.
> 
> As we know, the TMCH simply functions as the administrative/technical system that supports the various mechanisms that registries 1) are required under the contract to implement, like Sunrise; or 2) voluntary mechanisms that the contract permits them to create, which go above the ICANN-mandated “floor” so to speak.
> 
> For example on the latter use-case, from recollection I believe Google runs a permanent Claims notice for their new gTLDs (it doesn’t end after 90-days). 
> 
> I don’t recall off-hand the specific section, but this is part of the existing Applicant Guidebook and Registry Agreement; the TMCH was designed to allow other forms of IP (non-trademarks) to be recorded under 3.2.4, but expressly states that 3.2.4 is only for registry-specific consumer protection measures, i.e. not for Sunrise or TM Claims which are limited to trademarks.
> 
> The TMCH Operator (Deloitte and IBM) are premier companies in their space and have the know how/capacity to implement these rules; and anyway, we know it’s not that complex from a technical level to parse database records out for varying forms of use.
> 
> Hope helpful, please let me know of questions/comments. Thanks!
> 
> Best regards,
> Claudio
> 
>> On Friday, October 18, 2019, Paul Keating <paul at law.es> wrote:
>> If they are not part of the sunrise/notice program, what is their relevance and why are they being dealt with in an ICANN situation?
>> 
>> Sent while on the run.
>> 
>>> On 17 Oct 2019, at 01:05, Tushnet, Rebecca <rtushnet at law.harvard.edu> wrote:
>>> 
>>> There has been a lot of conflating of the TMCH database with the TMCH as entity that might also run ancillary databases/services.  My proposal deals with this by making clear that GIs can be in a database (or multiple databases), including one(s) run by Deloitte, but not the one that's used to run Sunrise/Notice.  I think this adequately addresses your concern that GIs be allowed in some database while minimizing the chance of error.  The difference between us seems to me to be that you want "the database" to include both Sunrise/Notice-eligible marks and also non-Sunrise/Notice-eligible terms.  I think it makes more sense to be very clear about the difference in the rules, although we need not specify any technical back end.  
>>> 
>>> The reason I thought we were satisfied as a group is that I do not think there is a material difference between these proposals once we adequately specify the difference between the TMCH as entity and TMCH database as the thing used to provide Sunrise and Notice--which, at present, is the only thing it does, as it doesn't seem that Deloitte has offered any separate services as yet. Claudio, since I believe that you agree that GIs shouldn't get Sunrise and Notice, why should they be in the database used to provide Sunrise and Notice? 
>>> 
>>> 
>>> Rebecca Tushnet
>>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>>> 703 593 6759
>>> From: GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> on behalf of claudio di gangi <ipcdigangi at gmail.com>
>>> Sent: Wednesday, October 16, 2019 6:42 PM
>>> To: Julie Hedlund <julie.hedlund at icann.org>
>>> Cc: gnso-rpm-wg at icann.org <gnso-rpm-wg at icann.org>
>>> Subject: [GNSO-RPM-WG] Actions & Notes: RPM PDP WG Meeting 16 October 2019
>>>  
>>> Julie, all,
>>> 
>>> Thanks for sending this around.
>>> 
>>> Unfortunately, this document does not represent the consensus of the small group (I'm sorry to say) in several important areas.
>>> 
>>> For example, this document includes language that states that GIs must be removed from the TMCH, which we did not agree upon in the small group.
>>> 
>>> To illustrate why they should not be removed, I circulated the transcript from ICANN43, which clearly demonstrates that 3.2.4 "Other marks that constitute IP" was intended to include other IP (non-trademarks) for the purpose of voluntary registry-specific RPMs. 
>>> 
>>> The mandatory RPMs were intended to be the floor, not the ceiling, and the TMCH can be used to support the voluntary RPMs, and GIs can be recorded in the TMCH under 3.2.4
>>> 
>>> The transcript reflects community comments and confirmation from ICANN's General Counsel that this is the purpose and intent of 3.2.4; therefore, GIs are properly recordable in the TMCH, but only for the purposes of voluntary registry-specific RPMs, and should not be removed from the database.
>>> 
>>> There is additional language in this document that forms part of Rebecca’s proposal that I did not agree to. 
>>> 
>>> As you may recall at the time, I suggested we extent the time allotted to the small group to continue working in the background, but my suggestion was rejected - that’s how or why we ended up in this spot.
>>> 
>>> Best,
>>> Claudio
>>> 
>>> 
>>> 
>>> On Wed, Oct 16, 2019 at 5:50 PM Julie Hedlund <julie.hedlund at icann.org> wrote:
>>> Paul,
>>> 
>>>  
>>> 
>>> Apologies for any confusion, but it also is the staff’s understanding – and evidently this is not clearly conveyed – that the support on the call earlier today was for the small group proposal, rather than an individual proposal.   While it was identified as a proposal from Rebecca, the reference was to the version she submitted on 10 October (not her original proposal submitted on 01 October) after engaging with the small group, which staff thus thought represented the agreement of the small group.
>>> 
>>>  
>>> 
>>> Claudio’s subsequent message after reviewing the recording from 10 October provides some helpful detail in this matter.
>>> 
>>>  
>>> 
>>> Kind regards,
>>> 
>>> Julie
>>> 
>>>  
>>> 
>>> From: Paul Tattersfield <gpmgroup at gmail.com>
>>> Date: Wednesday, October 16, 2019 at 5:42 PM
>>> To: claudio di gangi <ipcdigangi at gmail.com>
>>> Cc: Julie Hedlund <julie.hedlund at icann.org>, "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
>>> Subject: [Ext] Re: [GNSO-RPM-WG] Actions & Notes: RPM PDP WG Meeting 16 October 2019
>>> 
>>>  
>>> 
>>> I share your concerns Claudio, I was under the impression that the request for support on the call earlier today was for a final proposal after agreement had been sought from the whole of the small group rather than just an individual proposal, very disappointing.
>>> 
>>> I trust there will be a way of including Claudio’s proposals in the initial report. 
>>> 
>>> I’m fine with discussing 6ter marks after/during the comments, though I think given the importance of the marks involved at a very minimum those responsible for the final proposal should as a matter of courtesy: 
>>> 
>>> (1) if there are any changes to today’s approved proposal, publish the final proposal wording to the working group list.
>>> 
>>> (2) explain under which section any proposal places a mark such as ‘UNHCR’? 
>>> 
>>> Thanks, Paul
>>> 
>>>  
>>> 
>>> On Wed, Oct 16, 2019 at 9:56 PM claudio di gangi <ipcdigangi at gmail.com> wrote:
>>> 
>>> Im not blaming staff Julie, so no worries.
>>> 
>>>  
>>> 
>>> Since the WG was not able to reach resolution, we formed a small group - with Rebecca and I being the only active participants - to flesh out the issues, which generated Rebecca’s proposal and my proposal.
>>> 
>>>  
>>> 
>>> Once that process concluded, we did not allocate time discussing those areas of divergence in order to reach compromise or consensus - please review the transcripts for confirmation of this fact.
>>> 
>>>  
>>> 
>>> We also didn’t conclude the WG’s views or treatment of 3.2.4 on the last meeting, which the transcript will also clearly reflect. That is why I sent the email today of the transcript of the ICANN Meeting when 3.2.4 was discussed, which contained the affirmation of ICANN’s General Counsel on this specific issue. 
>>> 
>>>  
>>> 
>>> We also did not conclude discussions on the list on specific working on 3.2.3., but there is high level agreement on the treatment of certain names during TM Claims and Sunrise.
>>> 
>>>  
>>> 
>>> In either case, Action item #8 needs be updated to include the publication of my proposal in the initial report. There are important areas of divergence that require public comment and there was sufficient support expressed for doing so. It’s as simple as that, so I hope there is no controversy involved here.
>>> 
>>>  
>>> 
>>> Thanks!
>>> 
>>>  
>>> 
>>> Best regards,
>>> 
>>> Claudio
>>> 
>>>  
>>> 
>>>  
>>> 
>>>  
>>> 
>>> 
>>> On Wednesday, October 16, 2019, Julie Hedlund <julie.hedlund at icann.org> wrote:
>>> 
>>> With apologies Claudio, but staff had not seen that you indicated that you would be joining late today, thus the agenda was followed in its original order.  Also, Q8 was discussed on the call on 10 October and based on that discussion it was deemed that no further discussion was necessary on today’s call.
>>> 
>>>  
>>> 
>>> Staff will review the transcripts and recording for the meeting on 10 October to ensure that the results of the discussions are accurately reflected.
>>> 
>>>  
>>> 
>>> Kind regards,
>>> 
>>> Julie
>>> 
>>>  
>>> 
>>> From: claudio di gangi <ipcdigangi at gmail.com>
>>> Date: Wednesday, October 16, 2019 at 4:26 PM
>>> To: Julie Hedlund <julie.hedlund at icann.org>
>>> Cc: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
>>> Subject: [Ext] Re: [GNSO-RPM-WG] Actions & Notes: RPM PDP WG Meeting 16 October 2019
>>> 
>>>  
>>> 
>>> Action item 8 need to be modified to include publishing my proposal in the Initial Report based on the support expressed by various members throughout these discussions.
>>> 
>>>  
>>> 
>>> I sent a note to the list indicating that I was joining late. Frankly, I’m surprised and disappointed that after all the work that was done on this issue, this agenda item was discussed first on the agenda, without the involvement of person who put in the work that was the basis of the agenda item.
>>> 
>>>  
>>> 
>>> Mismanagement aside, please take the appropriate steps as outlined above. Thank you.
>>> 
>>>  
>>> 
>>> Best regards,
>>> 
>>> Claudio
>>> 
>>> On Wednesday, October 16, 2019, Julie Hedlund <julie.hedlund at icann.org> wrote:
>>> 
>>> Dear All,
>>> 
>>>  
>>> 
>>> Please see below the action items captured by staff from the RPM PDP Working Group call held on 16 October 2019 at 17:00 UTC.  Staff will post these to the wiki space.  Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, Zoom chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2019-10-16+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG.
>>> 
>>>  
>>> 
>>> Best Regards,
>>> 
>>> Julie
>>> 
>>> Julie Hedlund, Policy Director
>>> 
>>>  
>>> 
>>> ==
>>> 
>>>  
>>> 
>>> NOTES & ACTION ITEMS
>>> 
>>>  
>>> 
>>> Actions:
>>> 
>>>  
>>> 
>>> Open and Deferred TMCH Questions:
>>> 
>>>  
>>> 
>>> Q7 Design Marks: ACTION: WG agrees to publish Kleiman/Muscovitch and Shatan proposals in the Initial Report for Public Comment.
>>> 
>>> Q8 GIs: ACTION: WG agrees to publish Tushnet proposal in the Initial Report for Public Comment.
>>> 
>>> Q12: ACTION: Staff will work with Maxim to revise the proposal to include context and background, and make it more formal.  Make it clear that this is an implementation recommendation, not policy.  Publish to the WG email list for review.
>>> 
>>> Q15: ACTIONS: 1) WG agrees to publish Karanicolas proposal in the Initial Report for Public Comment. 2) ACTION: Staff to draft a new proposal based on suggestions and circulate it to interested WG members and the Co-Chairs.
>>> 
>>> Q2: Proposal from Martin Pablo Silva Valent: ACTIONS: 1) Martin to revise the proposal with assistance of other WG members and circulate it on the WG email list for review. 2) Staff will check to see if either party to the contract can seek modifications.
>>> 
>>>  
>>> 
>>> Discussion of whether individual URS proposals should be revisited by the WG, and methodology for doing so:  ACTION: WG members are requested to continue discussion on the email list. See the draft survey at:  survey [forms.gle].
>>> 
>>>  
>>> 
>>> Notes:
>>> 
>>>  
>>> 
>>> 1.  Updates to Statements of Interest: No updates provided.
>>> 
>>>  
>>> 
>>> 2. Status of Questions Q7, Q8, Q12, and Q15:
>>> 
>>>  
>>> 
>>> Q7 Design Marks: ACTION: WG agrees to publish Kleiman/Muscovitch and Shatan proposals in the Initial Report for Public Comment.
>>> 
>>>  
>>> 
>>> Q8 GIs: ACTION: WG agrees to publish Tushnet proposal in the Initial Report for Public Comment.
>>> 
>>>  
>>> 
>>> Q12: Proposal from Maxim Alzoba – TMCH Operational Considerations
>>> 
>>> -- Need to improve redundancy and availability of the TMCH.
>>> 
>>> -- Question: Are you referring to the TM database, run by IBM?  Deloitte is the validator and IBM is the maintainer of the database.  Answer: Relates to the provision of the database.  Or could be a issue with the design, it’s hard to say.  Need to review how it works.  Might not be limited to software functions.  Could be dataflow design.
>>> 
>>> -- Need to get background on the cases reported to GDD colleagues.  The validation function is kept separate from the database function.  If the WG wishes to investigate this further this is probably an issue with implementation as to SLA (there are applicable SLAs).  Need also to go back and look at the deliberations concerning the original design of the TMCH and database.
>>> 
>>> -- Information about the SOW with IBM (and for that matter the SLAs with Deloitte) on this Working Group wiki page, under TMCH Contracting: https://community.icann.org/pages/viewpage.action?pageId=61606864
>>> 
>>> 
>>> ACTION: Staff will work with Maxim to revise the proposal to include context and background, and make it more formal.  Make it clear that this is an implementation recommendation, not policy.  Publish to the WG email list for review.
>>> 
>>>  
>>> 
>>> Q15: ACTION: WG agrees to publish Karanicolas proposal in the Initial Report for Public Comment.
>>> 
>>> -- Hoped that we could get consensus. 
>>> 
>>> -- Could allow a limited group to access the data, perhaps a future review team?  Can’t just open up now when those who participate have been assured of confidentiality.
>>> 
>>> -- Question - is there a way for the WG to reach agreement on how to ensure there is some kind of specific, limited access to the data in the TMDB for oversight purposes only (including future reviews)?
>>> 
>>> ACTION: Staff to draft a new proposal based on suggestions and circulate it to interested WG members and the Co-Chairs.
>>> 
>>>  
>>> 
>>> 3. Remaining Deferred Charter Questions (see the attached Status of WG Discussions on Agreed TMCH Charter Questions):
>>> 
>>>  
>>> 
>>> a. Close Discussion: TMCH Category 6: Balance: Charter Question 16: Close discussion.
>>> 
>>>  
>>> 
>>> b. Discussion: TMCH Category 1: Education: Charter Questions 1, 2, and 3 – Proposal submitted by Martin P Valent for Q2 (1 Oct 2019) 
>>> 
>>>  
>>> 
>>> Q1: Close discussion.
>>> 
>>>  
>>> 
>>> Q2: Proposal from Martin Pablo Silva Valent:
>>> 
>>> -- TMCH should educate rights holders; it is already doing outreach and should do more.
>>> 
>>> -- Needs to be revised to be in the form of a recommendation.
>>> 
>>> -- Amendment: this effort would work in conjunction with whatever marketing ICANN is doing to support knowledge around new gTLD program in general and the TMCH.
>>> 
>>> -- Not clear as drafting what is the remit of Deloitte and what falls elsewhere.  Some of this should be done at an ICANN level.
>>> 
>>> -- Not sure involving ICANN at this level is required.
>>> 
>>> -- ICANN is not involved in marketing gTLDs.
>>> 
>>> -- Needs to be some definition/scope.  Don’t see TMCH providing education on RPMs.  We also need to clarify what is meant by “education.” Is this essentially “awareness” or is something more contemplated?
>>> 
>>> -- In the end we need much more in terms of education.  If it’s not in the current contract then it’s worth considering in future discussion.
>>> 
>>> -- Need to be careful how to express this.
>>> 
>>> -- From staff: ICANN Org does not have control over the TMCH provider’s website and information.  The contract was an initial 5-year term that expired on the first anniversary of the entering into force of the new gTLD program, and followed by consecutive 1-year renewal terms unless there’s a 180 day notice of termination. See: https://community.icann.org/pages/viewpage.action?pageId=61606864 .  We are in the 1-year renewal term.
>>> 
>>> -- Should look at what Deloitte already provides on their website. 
>>> 
>>> -- There's a lot of talk about what should be done - but no-one identifying anything actually glaringly missing.
>>> 
>>> -- Maybe it’s more of an outreach question, if the education already exists.
>>> 
>>> -- We should be identifying what’s not being done.  Otherwise, we’re just endorsing education conceptually, or providing a generic roadmap for what could be done that will include many things that are already being done.
>>> 
>>> ACTION: Martin to revise the proposal with assistance of other WG members and circulate it on the WG email list for review.
>>> 
>>> ACTION: Staff will check to see if either party to the contract can seek modifications.
>>> 
>>>  
>>> 
>>> 4. Discussion of whether individual URS proposals should be revisited by the WG, and methodology for doing so.  See the draft survey at:  survey [forms.gle]:
>>> 
>>>  
>>> 
>>> -- Survey does not designate which proposals go into the Initial Report – that will be decided via WG discussion.
>>> 
>>> -- WG members should consider whether or not names and affiliations should be included, although the survey is not a poll.
>>> 
>>> -- WG members will decide what to do with the data.
>>> 
>>> -- Co-Chairs suggest allowing WG members to take the survey as a way to inform, but not direct, WG discussions.
>>> 
>>> ACTION: WG members are requested to continue discussion on the email list.
>>> 
>>>  
>>> 
>>> _______________________________________________
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