Re: [council] Discussion kick-off on BC/IPC strawman proposal as blogged by Fadi

[Mason Cole <mcole@xxxxxxxxxx>]

I agree with Volker's concerns too an find them to be well stated.

Jeff's email regarding policy vs. implementation is on target as well.  
Unfortunately, the community has looked for and found ways to outright 
circumvent the processes we all agreed to for establishing policy when those 
processes don't suit them.  Doing so robs us all of predictability, which I 
know is of little concern to some, but is very important to most.  The sooner 
we stop playing these games the better.

In Toronto, we heard again accusations that the GNSO is broken, that it takes 
too long to develop policy, that confidence is lacking.  Speaking for myself, I 
don't believe that's correct, but the perception remains.  My belief is we have 
a duty to the council and to the community to address that head on and improve 
our performance.  We can, for example, improve the PDP timeline, not propose 
policy that has little chance to come into effect and thus waste our and 
staff's time, be respectful of the workload the council can actually carry, and 
set priorities.  Councilors and others have discussed these issues before and 
we have yet to see a good result, but, blame the optimist in me, we're all 
smart people and if we build some trust and work together, we can take people 
by surprise and make some changes for the better.  

Until we do, I'm concerned we will continue to see process freelancing like 
this, which may be a short-term gain for some but will continue to erode the 
GNSO model -- that would indeed be a disappointing outcome for the ICANN model 
we all seem to support.


On Nov 29, 2012, at 11:27 AM, Maria Farrell wrote:

> Volker,
> 
> Thank you very much. I share many of your concerns, particularly regarding 
> this 'extra-judicial' process'; its secrecy and its imbalance. 
> 
> I would very much like to have clarity on what the role of the GNSO Council, 
> and the GNSO more broadly, should now be. 
> 
> While I wish to be as constructive as possible regarding the substance of any 
> new proposals formally presented to the GNSO, I do not wish for the GNSO to 
> be asked to rubber-stamp the outcomes of a flawed process. 
> 
> I look forward to learning more about these proposals, including the 
> publication of - at a minimum - who was involved in drawing them up, and what 
> process was invoked to ensure transparency, participation and balance. 
> 
> All the best, Maria
> 
> On 28 November 2012 18:24, Volker Greimann <vgreimann@xxxxxxxxxxxxxxx> wrote:
> 
> Dear fellow councillors,
> 
> frankly, I do not like most of what I am seeing regarding the latest BC/IPC 
> demands. The new proposals re-open and significantly expand upon carefully 
> developed and agreed upon compromise positions beyond their original scope 
> and intent at the last minute and more significantly, outside the established 
> policy making mechanisms. Such a precedent will only serve to open the 
> floodgates for any community or stakeholder group to reopen any nominally 
> closed and agreed process to push their agenda just a little beyond what the 
> community had already agreed upon.
> 
> We should consider the ramifications of the CEO getting involved in what 
> easily could be viewed as policy making decisions and that to me should be 
> the focus of the council now as we look to provide feedback to Fadi about his 
> strawman and what implications it would have on future policy development.
> 
> While I welcome the more hands-on and practical approach of our new CEO, it 
> would be helpful to have more detailed information on how ICANN staff and 
> Fadi arrived at the conclusion that most of these positions are 
> implementation issues rather than policy. However, even if it were 
> implementation rather than policy, this does not mean these suggestions 
> should be implemented without proper process and especially if the majority 
> of the community is in disagreement. Just because you can does not mean you 
> should.
> 
> These proposals need to be vetted by the community, namely the GNSO Council. 
> To quote Steve Crocker from the Toronto public forum:
> 
> "Three more items. The rights protection in new gTLDs. The Intellectual 
> Property Constituency and business constituency reached consensus on further 
> mechanisms for new gTLD rights protection and agreed to socialize these to 
> the rest of the GNSO AND THE BOARD LOOKS FORWARD TO receiving input on these 
> suggestions FROM the GNSO. So that is our plan, so to speak, WHICH IS WE WILL 
> CONTINUE TO LISTEN AND WAIT FOR THIS TO COME UP"
> 
> From what I have seen, the strawman proposal was developed by the IPC and the 
> BC together with ICANN staff. Others made themselves available to discuss 
> them, but it does not seem accuracte to say they actually developed the 
> proposals. It is now our job as the GNSO council to weigh in and make our 
> opinions on these proposals clear. To kick this process off, I will make the 
> first move:
> 
> -Blocking (aka "LPR"): While not directly included in the straw man, I 
> understand this is still on the table. The paper on this proposal is well 
> written and does an excellent job of totally blocking out the actual harms 
> the implementation of this proposal would do. Its arguments only take into 
> account other trademark holders that may apply in the sunrise period whose 
> rights would naturally not be affected. No mention however is made of other 
> legitimate potential registrants whose rights to a non-infringing 
> registration after the sunrise phase would be completely eliminated. These 
> include people with the same name as the mark, trademark holders not 
> participating in the sunrise for whatever reason (newer trademark than 
> permitted, lack of prior knowledge, etc) or companies without eligible 
> trademarks. Frankly, only TM-holders that would otherwise participate in the 
> Sunrise would think this is a good idea. There will likely be a lot of money 
> to be made by implementing this demand but this is not good policy.
> 
> -Claims 2: The extension of Trademark Claims is a service except for a very 
> small part of the community for which there is no need and that will only 
> serve to scare away otherwise legally eligible registrants, slow the 
> registration process and drive up costs of registrations. As many of the new 
> TLDs will initially have a very small market such restrictions will decrease 
> the customer base even further.
> Furthermore, the description of the proposal as  "voluntary" seems to 
> fundamentally misrepresent the nature of the proposal, since it will be 
> anything but voluntary for registrants, registries and registrars. The only 
> parties for whom the optional nature of this proposal applies are its sole 
> beneficiaries.
> This proposal also does not take into account in any way how the technical 
> systems of each individual registrar need to be adapted to set this system 
> up. Having to implement a 60 day temporary system that will have light use 
> (Regular claims) is simpler than a system that will have many more commands 
> running through it and many more TLDs (as it will last for 1 year).
> Finally, the idea that registrars and registries will have to build these 
> systems at their own cost and risk with no guarantee of compensation for 
> their use as Rights Holders could opt out is not appropriate as it creates a 
> definite financial burden for registries and registrars to alleviate a 
> potential burden resulting from the presumed need for protection against 
> infringing registrations.
> 
> -Scope: This proposal is effectively a multiplier of the above issues, i.e. 
> every problem resulting from the above proposals will be multiplied by up to 
> 50 strings per TMCH entry. I also have come to understand that UDRP decisions 
> are not always flawless or beyond reproach as many have been successfully 
> overturned in court, so basing a blocking mechanisms on UDRP decisions seems 
> like an overreach (again).
> 
> -Notice: Of all the new demands put on the table by the IPC and the BC, the 
> only one that I can support without issues is the Sunrise Notice Requirement. 
> This is pure implementation, and makes sense both from a marketing as well as 
> a RPM standpoint. The rest are mostly overreach to benefit a single interest 
> group to the detriment of all others.
> 
> Of course I understand the desire of users of the TMCH to protect their 
> rights against infringements but the proposed measures must end exactly at 
> the point where they begin to infringe upon the legitimate rights rights of 
> others. Of course, there is nothing to prevent any registry from implementing 
> any of these demands voluntarily, but as policy, I heartily disagree with 
> both the process and format in which these proposals have been suggested and 
> discussed as well - to a large degree - their content.
> 
> Like I indicated above, this is a topic that needs to be discussed on our 
> level and given the limited time on our schedules during the monthly council 
> calls and the urgency of the matter, I would like to kick off the discussion 
> with this paper.
> 
> Best regards,
> 
> Volker Greimann
>