RE: [council] potential annex to Jeff's draft letter
Appreciate the effort that you have put in here. Others, please be aware
that we are very close to the end of January, the time in which I promised
to reply to Heather.
On a related note, Brian, I now see that I overlooked your comments on the
initial letter. Apologies, it seems that they got overlooked in the run-up
to the holidays at the end of the year.
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Winterfeldt, Brian
Sent: 30 January 2013 01:16
Subject: RE: [council] potential annex to Jeff's draft letter
As you may already be aware, I have a different point of view on the
Council's response to the GAC with respect to the ongoing IGO-INGO PDP.
Having informally spoken to GAC representatives about this issue, here are
some personal comments, that are shared by IPC leadership, as well as a
proposed redline that I would like to have on record and I hope the Council
will take into consideration.
o The rather broad scope of the current IGO INGO PDP, which considers
"whether there is a need for special protections at the top and second
level" of all gTLDs, has the practical effect of second guessing GAC advice
with respect to international legal norms and public policy. In other
words, whether intentional or unintentional, the impact of the instant PDP
is to challenge, or at least question, not only the GAC's proposed criteria
for protection, but also the GAC's determination to advance protection for
the specific two organizations that meet that criteria.
o Please bear in mind that the GAC was careful to propose protections for
Red Cross designations, Olympic words and a finite list of IGO acronyms for
new gTLDs only. I cannot recall anyone ever recommending or requesting such
protection in all existing gTLDs as well. Thus, the Council's response to
the GAC needs to fully explain any underlying rationale for the unilateral
decision to broaden the scope of the instant PDP well beyond GAC advice to
include existing gTLDs.
o The Council's current draft response to the GAC seems to suggest that
the GNSO's primary remit of policy development relating to the IOC/Red Cross
is "to determine what, if any, exceptions (i.e. for pre-existing,
non-commercial, and/or geographical use) should apply in the domain name
context-particularly at the second level and in both new and existing TLDs."
If this is ultimately our position as a Council, then I believe it is best
to gently back away from the current PDP, at least with respect to the Red
Cross designations and Olympic words, in favor of something much more
expeditious and narrow.
o As you may recall, the original IPC position on this issue is that
IOC/Red Cross protection should not be subject to a PDP. That position is
not reflected in the letter, and it should be reflected, even if it is
reflected as a minority view.
o The proposed definition of "policy" in the letter is overbroad,
subjective and particularly inappropriate in light of the recent policy
versus implementation discussion framework published by ICANN policy staff.
I believe it is better to simply admit that there is no bright line test and
recognize that this issue is ripe for further discussion within the ICANN
o To clarify, I do not believe that the GAC is asking for protection of
the entire .INT list of names. Rather, it is my understanding that the list
of IGOs that qualify under the GAC's criteria (i.e. are treaty-based
organizations) is a discrete list of around only 200 acronyms.
o Finally, the Council should not support anything, regardless of its
substance, that may be interpreted as a legal opinion on intermediary
liability, such as the statement that, "(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.)" Conclusions such as these should be fleshed out and
substantiated with objective facts, research or citations.
Please contact me if you would like to discuss any of these comments or
proposed amendments further.
Brian J. Winterfeldt
+1 202 429 6260 direct
+1 202 903 4422 mobile
+1 202 429 3902 fax
Steptoe & Johnson LLP - DC
1330 Connecticut Avenue, NW
Washington, DC 20036
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From: <mailto:owner-council@xxxxxxxxxxxxxx> owner-council@xxxxxxxxxxxxxx on
behalf of Jonathan Robinson[ <SMTP:JONATHAN.ROBINSON@xxxxxxxxxxx>
Sent: Monday, January 28, 2013 1:32:24 AM
To: 'Thomas Rickert'; 'GNSO Council List'
Subject: RE: [council] potential annex to Jeff's draft letter Auto forwarded
by a Rule
Many thanks Thomas,
I'll certainly plan to review today.
Jeff (as lead) and others, please note that this is due for completion this
week since I told Heather we'd reply to her in January.
From: <mailto:owner-council@xxxxxxxxxxxxxx> owner-council@xxxxxxxxxxxxxx [
On Behalf Of Thomas Rickert
Sent: 27 January 2013 17:29
To: GNSO Council List
Subject: [council] potential annex to Jeff's draft letter
as discussed, please find attached a text that could be used as an Annex to
the draft letter prepared by Jeff in response to the GAC to illustrate the
complexity of the matter. The intention was to keep it very brief (a bit
over a page), but still show that there are some issues that need to be