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Re: [council] potential annex to Jeff's draft letter

Brian, all,
I have checked the respective minutes of the GNSO Council meetings and 
confirmed that both the motions on the resolution on the initiation of the PDP 
as well as the adoption of the charter of the WG were carried unanimously. 

Am I correct in understanding that the IPC, while it supported both the 
initiation of the PDP as well as the scope of the work as laid out in the 
charter, now wishes to have its opposition to the PDP reflected in the letter? 
Can you please clarify?


Am 30.01.2013 um 02:15 schrieb "Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>:

> Dear all:
> 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 
> 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.
> Thank you,
> Brian
> Brian J. Winterfeldt  
> Partner
> bwinterfeldt@xxxxxxxxxxx
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> From: 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.
> Thanks,
> Jonathan
> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [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
> All,
> 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.
> Thanks,
> Thomas
> <Draft Council Response re IGO-INGO PDP.doc>

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