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[council] A thought on the letter to the GAC

  • To: "Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>, "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>
  • Subject: [council] A thought on the letter to the GAC
  • From: john@xxxxxxxxxxxxxxxxxxx
  • Date: Wed, 30 Jan 2013 11:21:21 -0700
  • In-reply-to: <560B87A6C4C20F4999D73431D61B4847082AAC4C25@SJUSEVS10.steptoe.com>
  • List-id: council@xxxxxxxxxxxxxx
  • Sender: owner-council@xxxxxxxxxxxxxx
  • User-agent: MailAPI 23514


As you likely know, I am a big fan of following policies that are a product of 
experience and asserting that commitment in a spirit of comity.  It is for the 
latter reason that I found Jeff's draft jarring.  It was on solid ground but it 
was unnecessarily aggressive.  Because of that, I think Brian has helped soften 
the delivery of the message in ways we ought to adopt.  

But for as thick a velvet glove as we can wear, the key message we need to make 
-- protections are policy -- is made:

"In any case, the Council believes that policy development is needed to 
determine what, if any, exceptions (i.e., for pre-existing, non-commercial, 
and/or geographic use) should apply in the domain name context – particularly 
at the second level and in both new and existing TLDs."

Even Brian's amendment notes that there is room to maneuver between the laws 
cited by the GAC.  For that reason alone, the GAC ought to appreciate the need 
for the Council to act.  Simply, the PDP we are pursuing is a prudent approach 
to setting ground rules for the protections we all believe are necessary.

I am in agreement with Brian that we need not pick unnecessary fights, 
particularly with the government reps with whom we are seeking to build a more 
effective working relationship.



--------- Original Message ---------Subject: RE: [council] potential annex to 
Jeff's draft letter
From: "Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>
Date: 1/29/13 5:15 pm
To: "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>

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 J. Winterfeldt  

+1 202 429 6260 direct
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Steptoe & Johnson LLP – DC
1330 Connecticut Avenue, NW
Washington, DC 20036

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From: owner-council@xxxxxxxxxxxxxx on behalf of Jonathan 
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.



-----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

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.


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