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Re: [council] Regarding Letter from American Intellectual Property Law Association

Ross,

On schedule as expected!

I would be very happy to introduce you to any number of operators that are unconcerned about Formulation 1 as it relates to their core business. Unfortunately, there aren't many (if any) of them that participate in ICANN's policy development process, so they are relatively unheard in the process. (On a slightly related not, it seems that the ISPCP website has been taken offline by your provider and that many of the associations counted as members are defunct. Presumably, this makes it extremely difficult for interested parties to get involved with the ISPCP.) 

The core business of operators can hardly revolve around what happens
to WHOIS, no one ever stated that. WHOIS information is but one
useful resource that we see no need to hide or do away with it. It is
comforting to see that you are vigilant over our website and it's contents.
There is work in progress going on there.

Moreover, I should also clarify that I am not pretending to speak for these operators. Rather, I'm passing on my observation that based on the conversations that I have almost daily with them about this and other related operational issues, that they don't seem to share the views espoused by those in the ISPC and other GNSO constituencies who opposed Formulation 1. 

OK they are entitled to have a different viewpoint, and so?

Yes, you are correct - this is my opinion. But please don't forget that my opinions are mostly shaped by your position. If my interpretation of the position of your constituency is incorrect, I welcome the opportunity to learn more and form new opinions based on that. However, I'm not sure that it is incorrect. The ISPC is quite clear that unfettered whois access must be preserved in order to ensure that issues related to content can be resolved by network operators. Of course, IP issues are only a subset of content issues (which also includes phishing, DDOS attacks, etc.) but I'm not sure that this changes my basic understanding or assertion.


This is a complete misrepresentation of fact. The ISPCP never refused
to consider alternatives to unfettered access to WHOIS data. The
subject of tiered access began to be discussed quite some time ago in
the TF (possibly you were not around at that time), and was put aside
for later work, we did not oppose tiered access as a concept.

Speaking of opinions, I believe that we both have them ;) To the point, I was once asked what I thought might be the best way to deal with the Whois policy issue and I made the mistake of half-seriously replying that personally, I thought the easiest solution to the policy problem was to turn it off entirely. For very understandable reasons, you - and others - continue to quote this out of context. It has never been the formal policy position of Tucows or the Registrar constituency that Whois should be eliminated - it is of tremendous value to my company, my customers and the registrars I represent. The cost issue that we are seeking to avoid has nothing to do with the status quo solution (which truth be told is a non-material element in terms of our annual operating budget). It is a reaction to Tiered Access "solution" that some continue to advocate for. The technical solutions proposed are not practical, nor affordable. This was the main motivation behind the oPOC proposal that our constituency tabled, going back as far as the Mar del Plata meeting. We believe that by rationalizing the level of data presented in Whois and building in additional accountabilities, that a new focus on contactability can be built into Whois that provides a broad range of users with a "best possible compromise" solution. If this approach is too "aggressive" for you, I sincerely apologize.

I fail to see how highlighting a rather evident fact is equivalent to speaking
out of context, it rather helps to see what we are talking about in the midst
of all the noise...I did not know you said this, but thanks for the confirmation!
Your actions speak for themselves, my opinion is unimportant. The OPOC
solution is a pretty lame suggestion, fully in context with the Formulation 1
which you successfully voted through. And thanks for confirming the
'technical solutions proposed are not practical, nor affordable' with regards
to tiered access. And by the way it is not that particular approach that is 'too
agressive', but your continuous vehemence and intolerance which at least I
find unacceptable.

I'm not sure that there is anything cooperative about the current task force or the GNSO's policy development process. Your comments, and most of those made in opposition to Formulation 1, perfectly illustrate the problem. Instead of assessing the needs of the other stakeholders as it relates to the needs of your constituency and identifying where compromise might possibly be had, the representatives of the ISPC, BCUC and IPC have instead focused on advocating a single, immutable position. This advocacy consumes most of the time available to the task force and is the primary reason why little progress has been made on this issue.


You are quite right, there is nothing cooperative about the current TF or the
GNSO's policy development process. I would simply reply that you have
described, in utter perfection, the attitudes you express in your frequent
interventions, and your total unwillingness to accept disagreement with your
positions. If little progress has been made, I would not deny you your
ample share of the credit.

It is not by accident or because of weighted voting that Formulation 1 received support necessary within the task force and at Council. The sole reason that this proposition was successful was because it represents the best middle ground that many parties with differing goals and needs could find. This middle ground was only found because these parties, the registries, noncommercials, nominating committee reps and registrars, actually talked to one another and worked through their respective differences until a consensus view was found. I believe an effort was made on several occassions to include the rest of the constituencies in this dialog, but the outreach never bore fruit. 

It is a falsity that outreach was made to, at least, our constituency.
In fact, as you may recall in Luxembourg I attempted this, and was
rewarded later with a document containing......the OPOC !

I keep bringing this up in our calls, and I apologize if it has become boring for you, but we need alternatives and suggestions for compromise from your constituency and those of the IPC and BC - not advocacy. Without it, this criminal lack of progress will continue. 

It has nothing to do with boredom, and as far as advocacy.....

Tony Harris





----- Original Message ----- From: "Ross Rader" <ross@xxxxxxxxxx>
To: "Anthony Harris" <harris@xxxxxxxxxxxxx>
Cc: "Council GNSO" <council@xxxxxxxxxxxxxx>; <gnso-dow123@xxxxxxxxxxxxxx>
Sent: Wednesday, June 21, 2006 7:43 PM
Subject: Re: [council] Regarding Letter from American Intellectual Property Law Association


Anthony Harris wrote: 
Ross,

I think you have a valid point when you say:
"it would extremely helpful if stakeholders limited
themselves to speaking for themselves."

And thus am rather surprised at your conclusion that:
"The definition also seems to meet the needs
of web host and ISP operators,"

If it does, I have yet to meet one...

I would be very happy to introduce you to any number of operators that are unconcerned about Formulation 1 as it relates to their core business. Unfortunately, there aren't many (if any) of them that participate in ICANN's policy development process, so they are relatively unheard in the process. (On a slightly related not, it seems that the ISPCP website has been taken offline by your provider and that many of the associations counted as members are defunct. Presumably, this makes it extremely difficult for interested parties to get involved with the ISPCP.)

Moreover, I should also clarify that I am not pretending to speak for these operators. Rather, I'm passing on my observation that based on the conversations that I have almost daily with them about this and other related operational issues, that they don't seem to share the views espoused by those in the ISPC and other GNSO constituencies who opposed Formulation 1.


As to your remark:
"(and other related parties such as those that place a
higher relative value on intellectual property considerations than they
do on privacy, convenience and cost considerations such as the GNSO's
BCUC and ISPC.)"

This is your opinion. Not necessarily a fact.

Yes, you are correct - this is my opinion. But please don't forget that my opinions are mostly shaped by your position. If my interpretation of the position of your constituency is incorrect, I welcome the opportunity to learn more and form new opinions based on that. However, I'm not sure that it is incorrect. The ISPC is quite clear that unfettered whois access must be preserved in order to ensure that issues related to content can be resolved by network operators. Of course, IP issues are only a subset of content issues (which also includes phishing, DDOS attacks, etc.) but I'm not sure that this changes my basic understanding or assertion.


Nonetheless, I beleive it an opportune occasion to point out that you
have neglected to declare a pretty obvious fact, and that is that the
whole content of this very prolongued (and in your personal
case, very agressive) discussion, seeks to eliminate WHOIS
entirely and rid you of the cost and trouble of providing it.

Speaking of opinions, I believe that we both have them ;) To the point, I was once asked what I thought might be the best way to deal with the Whois policy issue and I made the mistake of half-seriously replying that personally, I thought the easiest solution to the policy problem was to turn it off entirely. For very understandable reasons, you - and others - continue to quote this out of context. It has never been the formal policy position of Tucows or the Registrar constituency that Whois should be eliminated - it is of tremendous value to my company, my customers and the registrars I represent. The cost issue that we are seeking to avoid has nothing to do with the status quo solution (which truth be told is a non-material element in terms of our annual operating budget). It is a reaction to Tiered Access "solution" that some continue to advocate for. The technical solutions proposed are not practical, nor affordable. This was the main motivation behind the oPOC proposal that our constituency tabled, going back as far as the Mar del Plata meeting. We believe that by rationalizing the level of data presented in Whois and building in additional accountabilities, that a new focus on contactability can be built into Whois that provides a broad range of users with a "best possible compromise" solution. If this approach is too "aggressive" for you, I sincerely apologize.

The task force is a vehicle to do this piece by piece, since
you have the weighted voting advantage when it comes to that.
This is something I can understand, and I am sure there must
be a suitable solution for it, that can be discussed in a civil,
cooperative atmosphere, without insulting our intelligence in
the process.

I'm not sure that there is anything cooperative about the current task force or the GNSO's policy development process. Your comments, and most of those made in opposition to Formulation 1, perfectly illustrate the problem. Instead of assessing the needs of the other stakeholders as it relates to the needs of your constituency and identifying where compromise might possibly be had, the representatives of the ISPC, BCUC and IPC have instead focused on advocating a single, immutable position. This advocacy consumes most of the time available to the task force and is the primary reason why little progress has been made on this issue.


It is not by accident or because of weighted voting that Formulation 1 received support necessary within the task force and at Council. The sole reason that this proposition was successful was because it represents the best middle ground that many parties with differing goals and needs could find. This middle ground was only found because these parties, the registries, noncommercials, nominating committee reps and registrars, actually talked to one another and worked through their respective differences until a consensus view was found. I believe an effort was made on several occassions to include the rest of the constituencies in this dialog, but the outreach never bore fruit.

I keep bringing this up in our calls, and I apologize if it has become boring for you, but we need alternatives and suggestions for compromise from your constituency and those of the IPC and BC - not advocacy. Without it, this criminal lack of progress will continue.

If you are seriously interested in making progress, then please reconsider the request I made of you and Marilyn on the last call: how can the existing proposals that have been tabled be changed so that they are suitable for the needs of the stakeholders you represent?

Regards,

--

                       -rr








                "Don't be too timid and squeamish about your actions.
                                           All life is an experiment.
                            The more experiments you make the better."
                        - Ralph Waldo Emerson


Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org




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