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Re: [council] potential annex to Jeff's draft letter
- To: Jonathan Robinson <jonathan.robinson@xxxxxxxxxxx>
- Subject: Re: [council] potential annex to Jeff's draft letter
- From: Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>
- Date: Wed, 30 Jan 2013 19:04:54 +0100
- Cc: "'David Cake'" <dave@xxxxxxxxxxxxxxxxx>, "'Neuman, Jeff'" <Jeff.Neuman@xxxxxxxxxx>, "'Winterfeldt, Brian'" <bwinterfeldt@xxxxxxxxxxx>, council@xxxxxxxxxxxxxx
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Hi Jonathan,
I would support option 1. and request a minority opinion from the IPC to
be attached to the letter.
By doing so we could hit our deadline.
Best,
Volker
All,
I believe we are heading to one of two options:
1.Adopt the substance of Jeff's draft with agreed changes. I believe
that we will need to reflect Brian's / the IPC input on this and so it
may need some changes in order to do so.
2.Write to Heather / the GAC indicating that we are working on this
but need a little more time.
Consider also that want to limit the extent to which we go into the
Policy vs Implementation issue here since this is the subject of a
broader and longer term initiative.
Thanks.
Jonathan
*From:*owner-council@xxxxxxxxxxxxxx
[mailto:owner-council@xxxxxxxxxxxxxx] *On Behalf Of *David Cake
*Sent:* 30 January 2013 17:49
*To:* Neuman, Jeff
*Cc:* Winterfeldt, Brian; council@xxxxxxxxxxxxxx
*Subject:* Re: [council] potential annex to Jeff's draft letter
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in such a way that it would no longer represent the views of the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
<mailto: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:
oWe 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.
oI 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.
oI 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.
oThe 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.
oOn 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>
[mailto:owner-council@xxxxxxxxxxxxxx
<mailto:council@xxxxxxxxxxxxxx>]*On Behalf Of*Winterfeldt, Brian
*Sent:*Tuesday, January 29, 2013 8:16 PM
*To:*council@xxxxxxxxxxxxxx <mailto: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.
oThe 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.
oPlease 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.
oThe 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.
oAs 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.
oThe 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.
oTo 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.
oFinally, 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 <mailto:bwinterfeldt@xxxxxxxxxxx>
Steptoe
+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
www.steptoe.com <http://www.steptoe.com/>
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*Steptoe & Johnson LLP -- New York*
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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 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>[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
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