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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: Thomas Rickert <rickert@xxxxxxxxxxx>
- Date: Wed, 30 Jan 2013 22:10:18 +0100
- Cc: "'Mason Cole'" <mcole@xxxxxxxxxx>, <john@xxxxxxxxxxxxxxxxxxx>, "'David Cake'" <dave@xxxxxxxxxxxxxxxxx>, "'Neuman, Jeff'" <Jeff.Neuman@xxxxxxxxxx>, "'Winterfeldt, Brian'" <bwinterfeldt@xxxxxxxxxxx>, <council@xxxxxxxxxxxxxx>
- In-reply-to: <007201cdff2d$b5873280$20959780$@ipracon.com>
- List-id: council@xxxxxxxxxxxxxx
- References: <20130130112225.a9a203d782c20324abd21efa41e2a5a6.07f0947912.mailapi@email14.secureserver.net> <766598E3-DDC8-4D61-B708-305776EF78E9@5x5com.com> <007201cdff2d$b5873280$20959780$@ipracon.com>
- Sender: owner-council@xxxxxxxxxxxxxx
Well stated, Jonathan!
You have my support for that.
Thomas
Am 30.01.2013 um 22:06 schrieb "Jonathan Robinson"
<jonathan.robinson@xxxxxxxxxxx>:
> I am wondering if I might have to pick up the pen for the final iteration and
> seek to find the middle ground?
>
> After all, my name is likely to be on the bottom of the letter.
>
> Jonathan
>
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
> Behalf Of Mason Cole
> Sent: 30 January 2013 20:28
> To: john@xxxxxxxxxxxxxxxxxxx
> Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian';
> council@xxxxxxxxxxxxxx
> Subject: Re: [council] potential annex to Jeff's draft letter
>
> I too support #1.
>
> I didn't necessarily find Jeff's letter to be over-aggressive. That said if
> the council thinks it's a good idea to make the language relatively more
> diplomatic, I don't object, provided the content of the message isn't changed.
>
>
> On Jan 30, 2013, at 10:22 AM, john@xxxxxxxxxxxxxxxxxxx wrote:
>
>
> I am fully in support of #1. We need to respond substantively, just is a
> less flammable way.
>
> Berard
>
> --------- Original Message ---------
> Subject: RE: [council] potential annex to Jeff's draft letter
> From: "Jonathan Robinson" <jonathan.robinson@xxxxxxxxxxx>
> Date: 1/30/13 10:02 am
> To: "'David Cake'" <dave@xxxxxxxxxxxxxxxxx>, "'Neuman, Jeff'"
> <Jeff.Neuman@xxxxxxxxxx>
> Cc: "'Winterfeldt, Brian'" <bwinterfeldt@xxxxxxxxxxx>,council@xxxxxxxxxxxxxx
>
>
> 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> 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
>
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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
>
>
>
>
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