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RE: [council] potential annex to Jeff's draft letter
- To: "VGREIMANN@xxxxxxxxxxxxxxx" <VGREIMANN@xxxxxxxxxxxxxxx>
- Subject: RE: [council] potential annex to Jeff's draft letter
- From: "Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>
- Date: Wed, 30 Jan 2013 09:59:28 -0700
- Accept-language: en-US
- Acceptlanguage: en-US
- Cc: "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>
- List-id: council@xxxxxxxxxxxxxx
- Sender: owner-council@xxxxxxxxxxxxxx
- Thread-index: Ac3/CypulRINfsErRY+NIGJiXGxWUg==
- Thread-topic: [council] potential annex to Jeff's draft letter
Dear Volker:
Thank you for these thoughts. Here are some quick responses in line with your
email below.
Best regards,
Brian
Brian J. Winterfeldt
Partner
bwinterfeldt@xxxxxxxxxxx<mailto:bwinterfeldt@xxxxxxxxxxx>
Steptoe
-------------------------------------------
From: Volker Greimann[SMTP:VGREIMANN@xxxxxxxxxxxxxxx]
Sent: Wednesday, January 30, 2013 4:02:52 AM
To: Winterfeldt, Brian
Cc: council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Subject: Re: [council] potential annex to Jeff's draft letter
Auto forwarded by a Rule
Dear Brian,
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.
Under this scope, the PDP would not only examine the need for special
protections in new gTLDs but also under the existing ones. One may argue
whether this is necessary or distracting (see the next point), but I do not see
it as directly challenging the GAC advice.
I personally would have preferred a more direct reference to the level of
protections required. After all, the term "special protections" is not
particularly conclusive as to what these protections are actually supposed to
be, and also the GAC has been rather opaque on what kind of protections they
envision. It is the duty of the GNSO to fill the GAC advice with life and I
agree that the language describing the scope of the PDP should have been more
clear on that.
I thought the GAC was fairly clear about its request for second-level
protection in its September 14, 2011
letter<https://gacweb.icann.org/download/attachments/1540128/GAC+advice+on+IOC+and+Red+Cross+Sep.+2011.pdf?version=1&modificationDate=1317031625000>.
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.
While I also cannot recall any such request or recommendation, I fail to see
why new gTLD should be treated differently from existing gTLDs. If it is
determined that a form of special protection is necessary, why would such a
need not also apply to existing TLDs?
If that is the reason why the PDP encompasses existing gTLDs, then it should be
added to the response to the GAC. It is just a guess, but perhaps their
proposal was limited to new gTLDs to avoid overreaching or conflicts with
existing interests in second-level registrations.
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.
Would it not be the job of the PDP to make exactly that determination as part
of their deliberations?
If this is the only issue, or the primary issue, with respect to these
entities, then perhaps something other than a full PDP was in order, such as a
"policy guidance working group" as suggested in staff's proposed policy versus
implementation framework.
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.
I would not call it inappropriate just because there is no clear line in the
sand.
Perhaps I am wrong, but I think we can all agree that there is a strong
divergence of opinion within the community on the definition of "policy." I
thought it best to acknowledge that in our response to the GAC. In endorsing
this letter as it is written, does everyone intend to endorse Jeff's definition
of policy?
Best,
Volker Greimann
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