Re: [council] Proposed Response to the GAC regarding November 28th Letter

[Mason Cole <mcole@xxxxxxxxxx>]

I support Jeff's approach as well.  And Thomas makes good suggestions.

One observation on a recommendation by Thomas -- I'm not sure we should ask the 
GAC for its interpretation of policy vs implementation.  I don't know that they 
would provide it in the first place.  More to the point, as Jeff correctly 
points out in his draft, there's no real test for it -- it's implied generally 
by the outcomes of our work and isn't formally a filter for part of 
decision-making.  If the community decides later that it should be, that's one 
thing.  Imposing it is another.  So if we're going to ask the GAC about it, I 
prefer not to do it here -- it will bog down this process, and I believe it 
should be dealt with as a stand-alone issue.

On Dec 6, 2012, at 2:03 PM, Thomas Rickert wrote:

> Jeff, Jonathan, all,
> first of all, thank you Jeff and your colleagues for a well written and 
> thoughtful draft letter. 
> 
> Following Jonathan's proposal, let me respond as follows:
> 
> 1.       Is the approach taken below one which you broadly do or do not 
> support?
> 
> I do support that aproach.
> 
> 2.       If yes to 1 above, please indicate if there are any additional areas 
> not covered or areas that could be improved?
> 
> A.
> 
> I think it would be helpful to add some history, which we have discussed this 
> during the IGO-INGO WG call. We might want to point out that the Reserved 
> Names WG has dealt with this issue a few years back and - while not 
> particularly having discussed the IOC RCRC, there was an intentional decision 
> not to add such designations to the reserved names list. The group wanted to 
> leave the protection to the RPMs. 
> 
> This point should be made IMHO because it underlines that this is a topic 
> that has been part of policy making in the past and that it should not be 
> dealt with differently. Even the IOC, in its letter of February 11, 2011, 
> made a statement that clearly indicates that merely reserving the names is 
> not in their interest and that an exemption procedure is needed, which 
> requires policy work:
> 
> <PastedGraphic-1.pdf>
> 
> 
> The letter can be found here: 
> http://www.icann.org/en/correspondence/lacotte-stupp-to-pritz-stathos-01feb11-en.pdf
> B. 
> 
> Also, I would recommend we state that the original request was made regarding 
> the IOC and RCRC only while stating that these organizations have a unique 
> tapestry of protections, while it has now been opened to other IGO names. 
> Hence, there must be some understanding that changing requirements require 
> more time of analysis. 
> 
> C. 
> 
> ICANN's aim is to be globally inclusive and to serve all stakeholders. That 
> means that, while we take the GAC's concerns and requests (not sure I would 
> call it advice here since GAC Advice is a legal term reserved to the 
> interaction with the Board in my view) seriously, it is imperative for the 
> GNSO being ICANN's BUMS policy making body to also hear the arguments of 
> other stakeholders prior to making recommendations. This is to ensure that 
> legitimate interests of other stakeholders (e.g. legitimate use of 
> designations in question) are also basis for a decision. 
> 
> D.
> 
> In Jeff's proposal it is stated:
> 
> Perhaps we are misunderstanding the distinction between “policy” and 
> “implementation” drawn by the GAC, and, as previously stated, the GNSO 
> Council would welcome further dialogue on this point.  
> 
> I would prefer not to give the impression that WE might be misunderstanding 
> something, but rather invite the GAC to explain their understanding of the 
> distinction between "policy" and "implementation" and that this will help the 
> mutual understanding of approach and processes. 
> 
> E.
> 
> We might wish to make reference to the point mentioned in the joint GAC / 
> Board meeting that this topic shall serve as a case study and therefore 
> invite the GAC to participate in the WG or present the idea of a Liaison, 
> which was recently discussed.
> 
> Thanks,
> Thomas
> 
> 
> Am 06.12.2012 um 19:51 schrieb "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>:
> 
>> Thanks.  We did consider adding something like this to our draft letter, but 
>> in the end decided not to.  It simply isn’t enough or helpful (in our view) 
>> to say the GNSO considered policy development activities on this because the 
>> board told us to do so in their resolution.   After all, then it could be 
>> argued by others that the Board acted erroneously in telling us to consider 
>> it in the first place.
>>  
>> We wanted in a respectful way to point out that this does in fact involve 
>> policy, and we are the appropriate body to consider the policy issues, 
>> whether the Board tells us to or not.
>>  
>> Jeffrey J. Neuman 
>> Neustar, Inc. / Vice President, Business Affairs
>> 
>>  
>> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
>> Behalf Of Jonathan Robinson
>> Sent: Thursday, December 06, 2012 1:42 PM
>> To: 'Brian Peck'; council@xxxxxxxxxxxxxx
>> Subject: RE: [council] Proposed Response to the GAC regarding November 28th 
>> Letter
>>  
>> Many thanks Brian.  That’s helpful.  Jonathan
>>  
>> From: Brian Peck [mailto:brian.peck@xxxxxxxxx] 
>> Sent: 06 December 2012 17:15
>> To: Jonathan Robinson; 'Neuman, Jeff'; council@xxxxxxxxxxxxxx
>> Subject: Re: [council] Proposed Response to the GAC regarding November 28th 
>> Letter
>>  
>> Jonathan,
>> 
>> In response to your question in relation to responding to the GAC on the 
>> issue of what was the impetus for the Council to take up the work on the IGO 
>> name protection issue, it may be helpful to note as background that the 
>> Board in its 11 March 2012 letter formally asked both the GAC and the GNSO 
>> Council for policy advice on the protection of IGO names:  
>> 
>> http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van-gelder-11mar12-en.pdf
>>  
>> 
>> In addition, some of the other considerations taken into account for the 
>> Council requesting the Issues Report on the protection of International 
>> Organization names to include IGO names – including requests from IGOs to 
>> obtain the same level of of any protections provided to the RCRC and IOC, 
>> are noted in the motion adopted to request the Issues Report:  
>> 
>> http://gnso.icann.org/en/meetings/minutes-council-12apr12-en.htm
>> 
>> Thanks.
>> 
>> Best Regards,
>> 
>> Brian 
>> 
>> 
>> On 12/6/12 3:08 AM, "Jonathan Robinson" <jonathan.robinson@xxxxxxxxxxx> 
>> wrote:
>> 
>> Jeff,
>>  
>> Many thanks to you and your colleagues for such a considered and 
>> comprehensive first draft.  I had thought about trying to draw out key 
>> principles from discussion on the list and then drafting.
>> This approach takes it a step further and faster.  Great.
>>  
>> Rather than collectively editing the text at this point, I suggest that 
>> councillors respond along the following lines:
>>  
>> 1.       Is the approach taken below one which you broadly do or do not 
>> support?
>> 
>> 2.       If yes to 1 above, please indicate if there are any additional 
>> areas not covered or areas that could be improved?
>> 
>> 3.       If no to 1 above, please explain why and how you suggest we 
>> approach this differently?
>> 
>> 4.       Are there any other substantive points not already covered in the 
>> letter and not covered in your responses to 1-3 above?
>> 
>> 
>> I trust this will provide a structure for input before we go into a final 
>> drafting mode.  Once we have been through this iteration, we can work on an 
>> approach which tweaks the final text.
>>  
>> One overall question I have relates to the question posed by the GAC and 
>> implicit in our (draft) response to it below.  Both seem to suggest (or 
>> presume) we have chosen as a Council to undertake this policy work.  Is this 
>> actually the case (i.e. did we independently determine to undertake this 
>> work) or does the history indicate that we are in fact responding to a 
>> request from board (or elsewhere)?  Mason helpfully provided sketched series 
>> of events on Friday last week but it is not 100% clear where the primary 
>> impetus for the GNSO undertaking this policy work came from?  In any event, 
>> but along these lines, is it helpful or provocative to provide a sketch 
>> timeline of the key steps in this long process? As an appendix to the letter 
>> perhaps?
>> 
>> Thank-you again Jeff and please indicate whether or not you are willing to / 
>> would like to continue to hold the pen on this?
>>  
>> Jonathan
>>  
>> 
>> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
>> Behalf Of Neuman, Jeff
>> Sent: 05 December 2012 22:42
>> To: council@xxxxxxxxxxxxxx
>> Subject: [council] Proposed Response to the GAC regarding November 28th 
>> Letter
>> 
>> All,
>>  
>> In the past few days, a few of us at Neustar have been thinking about a 
>> proposed response to the November 28th letter from the GAC to the GNSO on 
>> the determination to initiate a PDP on the protection of names of 
>> international organizations.  Given that we should be drafting a response, 
>> we took a stab at coming up with a first draft to get your input on.  
>> 
>> This is just a first draft, but one which we believe sets the right 
>> non-confrontational tone on some issues that we know are sensitive to a 
>> number of GAC members (and ICANN community members alike).  We have also 
>> taken a stab at defining how policy development has traditionally applied to 
>> ICANN activities before the whole onslaught of new gTLD issues.  
>> 
>> Please let me know your thoughts on this letter and whether this serves as a 
>> good starting point to finalize a response.
>> 
>> Thanks!
>>  
>>  
>> +++++++++++++++++++++++++++++++++++++++
>>  
>> Dear Madam Chair:
>>  
>> I am writing in response to your letter dated 28 November 2012 seeking 
>> information about the GNSO’s determination to initiate a Policy Development 
>> Process (PDP) on the protection of the names of international organizations 
>> “in all gTLDs.”  
>>  
>> We are not aware of a bright line test to distinguish “policy” from 
>> “implementation” in general, or in the ICANN context, and believe that this 
>> question might benefit from further review and consideration within ICANN’s 
>> multi-stakeholder processes.  For purposes of responding to your letter, 
>> however, the term “policy development” has traditionally applied to ICANN’s 
>> consideration of an issue that is within the scope of ICANN’s mission 
>> statement and involves developing an approach that (1) is broadly applicable 
>> to multiple situations or organizations; (2) is likely to have lasting value 
>> of applicability; (3) will establish a guide or framework for future 
>> decision-making; and/or (4) implicates or affects an existing ICANN policy.  
>>  The ICANN Board, the ICANN staff, and the GNSO has each concluded at 
>> different points that the question of enhanced protections for international 
>> governmental organizations (“IGO’s”) and international non-governmental 
>> organizations (“INGO’s”) at the top and second level meets the criteria 
>> described above.  
>>  
>> We do not dispute the validity of the GAC’s advice to the ICANN Board in May 
>> 2011 regarding protections for the International Olympic Committee (“IOC”) 
>> and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact 
>> that ICANN received preliminary legal advice that some 60 countries protect 
>> certain intellectual properties of the IOC and RC/RC.   We note, however, 
>> that most such laws – like the Nairobi Treaty on the Protection of the 
>> Olympic Symbol itself - provide exceptions for non-commercial uses, 
>> pre-existing commercial uses, and certain geographic references, among other 
>> things.  (To our knowledge, however, these laws would not create 
>> intermediary liability or impose affirmative obligations on ICANN, 
>> registries, and/or registrars with respect to third party registrations.)  
>> In any case, policy development is needed to determine what, if any, 
>> exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) 
>> should apply in the domain name context – particularly at the second level 
>> and in both new and existing TLDs.  
>>  
>> Likewise, we do not dispute the validity of the GAC’s advice in Toronto with 
>> respect to the use of the current .int registration requirements as a 
>> starting basis for protection of IGO names and acronyms.  We also appreciate 
>> your point that this advice is “complementary” to the provision of the 
>> Applicant Guidebook permitting use of the .int registration criteria as the 
>> basis for IGOs to file a Legal Rights Objection to a new gTLD application.  
>> We do not understand, however, how a prohibition of even non-infringing uses 
>> of an IGO’s acronym at the first or second level is merely an implementation 
>> of the Legal Rights Objection policy, which provides for an independent 
>> panel to determine whether an applicant’s potential use of the applied-for 
>> gTLD would be likely to infringe the objector’s existing IGO name or 
>> acronym.  The views and perspectives of various participants in this 
>> discussion, including those of the Governmental Advisory Committee, have 
>> evolved over time – including quite recently.  
>>  
>> The GNSO believes that the issues identified above fall within the 
>> definition of “policy” used by ICANN.  We understand, of course, that the 
>> policy development process can be time consuming.  We also understand that 
>> some may view resort to policy development as a delaying or blocking tactic. 
>>  With respect to the question of enhanced protections for international 
>> governmental organizations, however, the GNSO has attempted to find 
>> practical solutions to ensure that reasonable protections are in place 
>> during the pendency of the policy discussions.  That approach is reflected 
>> in the ICANN Board’s recent resolutions to create a moratorium on 
>> registration of certain names at the second level pending this policy work.  
>> Perhaps we are misunderstanding the distinction between “policy” and 
>> “implementation” drawn by the GAC, and, as previously stated, the GNSO 
>> Council would welcome further dialogue on this point.  Meanwhile, we do take 
>> seriously our obligation to respond in a collaborative, timely and 
>> transparent way when policy development is necessary.  
>>  
>>  
>>  
>>  
>> Jeffrey J. Neuman 
>> Neustar, Inc. / Vice President, Business Affairs
>> 46000 Center Oak Plaza, Sterling, VA 20166
>> Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
>> jeff.neuman@xxxxxxxxxxx <mailto:jeff.neuman@xxxxxxxxxxx>   / 
>> www.neustar.biz<http://www.neustar.biz/>  
>> 
> 
> ___________________________________________________________
> Thomas Rickert, Attorney at Law
> 
> Managing Partner, Schollmeyer & Rickert Rechtsanwaltsgesellschaft mbH
> www.anwaelte.de
> 
> Director Names & Numbers, eco Association of the German Internet Industry
> www.eco.de
> 
>