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

[David Cake <dave@xxxxxxxxxxxxxxxxx>]

I am supportive of Jeff's position - I'm in favour of sending the letter as it 
was drafted (with the suggested changes from Thomas in the appendix). I believe 
Brian's suggestions would change the letter in such a way that it would no 
longer represent the views of the majority of council. 

Regards

        David

On 30/01/2013, at 6:54 AM, "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx> wrote:

>  
>  
> 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.
>  
> Best regards,
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 
>  
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
> Behalf OfWinterfeldt, Brian
> Sent: Tuesday, January 29, 2013 8:16 PM
> To: council@xxxxxxxxxxxxxx
> Subject: RE: [council] potential annex to Jeff's draft letter
>  
> 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
> 
> Steptoe
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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
>  
>  
>