RE: [council] Comments regarding the strawman

["Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>]

Dear Mason:

Thank you for repeating and clarifying the RrSG position.  I am happy to repeat 
the IPC position, for convenience to the list, and add some personal comments.

The IPC clearly supports the strawman and limited preventative registration 
proposals.  We are disappointed at the level of disparagement of these 
proposals on the Council in light of the fact that representatives from each 
stakeholder group participated in Brussels and Los Angeles.  Compromises in the 
strawman proposal emerged from give and take negotiation among representatives 
of all stakeholder groups.  Stakeholder groups that now assert that rights 
protection mechanisms should not have been revisited at all cast doubt on the 
good faith of the negotiators they sent to Brussels and Los Angeles.

Looking at the transcript from our teleconference, I realize that I used the 
word “consensus” and that particular word carries a bit of baggage in the ICANN 
community, especially with respect to mandatory “consensus policies” referenced 
in the various contracts in this space.  No one is suggesting that “consensus 
policies” were reached or even discussed in the meetings with Mr. Chehadé.  
Rather, quite the opposite, these were implementation meetings, not 
policy-making meetings.

In addition, no one is suggesting that participation in the meetings with Mr. 
Chehadé formulates complete acceptance of the proposals.  Personally, I think 
the primary point—as articulated by Mr. Chehadé—is that stakeholder 
representatives participated in a collaborative process focused strictly on 
common ground to advance the discussion on implementation solutions.  Rather 
than moving forward together as Mr. Chehadé has asked, it is disappointing to 
see this entire process called into question and the entirety of strawman 
proposal disparaged by Council and stakeholder representatives.

Finally, could you please clarify the statement that the RrSG would not at all 
characterize any meeting on the strawman as a negotiation?  Are we to 
understand that RrSG representatives sat on the sidelines and were there just 
to “listen to staff’s input”?

Best regards,

Brian

Brian J. Winterfeldt
Partner
bwinterfeldt@xxxxxxxxxxx<mailto:bwinterfeldt@xxxxxxxxxxx>
Steptoe



From: Mason Cole <mcole@xxxxxxxxxx<mailto:mcole@xxxxxxxxxx>>
Date: December 28, 2012, 11:33:53 AM EST
To: "council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx> List" 
<council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: [council] Comments regarding the strawman
All --

I don't at all mean to pick on Brian personally, but I became aware earlier of 
a news article covering our most recent council meeting.  (A side note: we 
should remember that the media and others listen in on our call, and our 
conversations are public and could end up in news coverage.)

The article says:

Brian Winterfeldt, Steptoe & Johnson, an IPC representative on the GNSO 
Council, said that the IPC does not agree with all points of the draft 
response. The IPC understood the strawman proposal to be the product of 
negotiations that resulted in a consensus among the participants—including 
representatives from all ICANN constituencies, Winterfeldt said. “Stakeholders 
who now say that rights protections should not be revisited cast doubt on the 
good faith of negotiations.”
For avoidance of doubt, I want to restate the RrSG's understandings.  Our 
representatives in the meeting were there at Fadi's request to discuss the 
trademark clearinghouse and to listen to staff's input on the strawman.  They 
would not at all characterize that (or any meeting on the strawman) as a 
negotiation, nor would they say consensus exists on the content of the 
proposals.  It was clear there would be an opportunity for comment following 
the meetings.  Our participation in those discussions can't be presumed to be 
acceptance of the proposals or the process by which they were considered.

I made that point on our 20 December call, I believe, but thank you for 
indulging my repeating it.

Mason