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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.


Am 30.01.2013 um 22:06 schrieb "Jonathan Robinson" 

> 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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