RE: [council] potential annex to Jeff's draft letter
- To: "Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>, "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>
- Subject: RE: [council] potential annex to Jeff's draft letter
- From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>
- Date: Wed, 30 Jan 2013 09:54:48 -0500
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- Acceptlanguage: en-US
- Cc: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>
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- Thread-topic: [council] potential annex to Jeff's draft letter
Thank you for this Brian. I think we face a dilemma here because your
revisions not only gut the letter that was written by us, but also in many
respects represents a complete reversal of the positions taken by most of the
members of council on the previous council calls. We can of course make some
updates based on the new paper ICANN staff just released, but remember that
that was not out when I initially sent the letter.
So, we now have two versions of the letter which I do not believe cannot be
reconciled. If it just the IPC that supports this new version, then we should
send the original version and allow the IPC to include comments as a minority
report. If, however, there is other support for this version, then we have an
issue to work through.
With respect to the comments raised in the e-mail below:
o We disagree with the notion that "the impact of the instant PDP is to
challenge, or at least question, not only the GAC's proposed criteria for
protection," or "the GAC's determination to advance protection for the specific
two organizations that meet that criteria." This was carefully considered by
the Council when it chose to implement the PDP and rejected by those voting in
favor of the PDP.
o I don't believe we said that the sole remit of the PDP was to look at
exceptions, but rather, that was listed as an example.
o I have no objection of including a footnote that the IPC did not support
the PDP, but to change the entire letter simply because one constituency didn't
agree to not seem to be the right approach.
o The policy framework put out by ICANN staff is still under discussion and
should not be used for any other purpose until that document has been
thoroughly vetted. We appreciate the fact that the IPC believes that the
definition of policy is overbroad, but we have taken this definition from what
has been used in the past by ICANN in actual situations to look at actual
issues to determine whether it is in scope for the policy process. It is the
only community accepted definition that there is.
o On the legal issue of intermediary liability, I could cite a number of
legal cases in the US, including the Lockheed Martin case, Brookfield, etc. but
we wanted to keep the letter short and to the point. I also have a case we
litigated in Belgium that states the same thing that could be cited involving
the droit.biz domain name.
In short, we as a council need to decide what to do. The registries are in
favor of sending the letter as it was drafted (with the tweaks from Thomas on
the Appendix). The IPC comments would drastically change the letter in a way
that defers to the GAC on everything policy-related, which we believe
represents a contravention of the ICANN Bylaws (where the GNSO is charged with
policy making for gTLDs) and a potential break down of the multi-stakeholder
process. Don't get me wrong, the governments are vital for the
multi-stakeholder process to work and we believe their opinions/advice should
be weighed heavily. But they cannot be the "be-all-end-all" of policy with
respect to gTLDs. This is not only an issue with respect to the IOC/RC and
IGOs, but also Whois, law enforcement activities, etc.
We need to find a way to all work together.
Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Winterfeldt, Brian
Sent: Tuesday, January 29, 2013 8:16 PM
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
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
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 community.
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
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From: owner-council@xxxxxxxxxxxxxx<mailto: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
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.
[mailto: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 resolved.