[council] Fwd: [PC-NCSG] memory refreshment on telling you circumventing community consensus policy was wrong

[David Cake <dave@xxxxxxxxxxxxxxxxx>]

Robin asked that this be forwarded to council.

Regards

        David

Begin forwarded message:

> From: Robin Gross <robin@xxxxxxxxxxxxx>
> Subject: [PC-NCSG] memory refreshment on telling you circumventing community 
> consensus policy was wrong
> Date: 10 April 2013 11:23:43 PM AWST
> To: Fadi Chehade <fadi.chehade@xxxxxxxxx>
> Cc: NCSG-Policy Policy <PC-NCSG@xxxxxxxxxxxxx>, Ray Plzak <plzakr@xxxxxxxxx>, 
> Steve Crocker <steve@xxxxxxxxxxxx>, Jonathan Robinson 
> <jonathan.robinson@xxxxxxxxxxx>
> 
> Dear Fadi,
> 
> Since you told the GNSO Council on Sunday that no one had ever told you it 
> would be wrong for you to do an end run around community consensus policy by 
> going forward with the TMCH meetings in Brussels (and then LA), I thought I 
> should refresh your memory of at least 2 people who told you that what you 
> were setting out to do was wrong: a Stakeholder Group Chair and a 
> Constituency Chair.  Please see the emails below from myself and Bill Drake 
> warning you about this to refresh your memory.
> 
> Because you told the GNSO Council that no one told you it was wrong, I 
> request that my and Bill's emails below should also be forwarded to the GNSO 
> Council to tell our side of the story.
> 
> Thank you,
> Robin Gross
> 
> Begin forwarded message:
> 
>> From: Robin Gross <robin@xxxxxxxxxxxxx>
>> Date: October 26, 2012 5:11:14 PM PDT
>> To: Fadi Chehade <fadi.chehade@xxxxxxxxx>
>> Cc: William Drake <william.drake@xxxxxx>
>> Subject: Re: why holding the meeting in Brussels next week to consider 
>> unraveling community consensus policy is a really bad idea for ICANN
>> 
>> Dear Fadi,
>> 
>> Thank you for responding to Bill since much of what you say below is exactly 
>> the kind of clarification that I am asking for regarding this Brussels 
>> meeting.
>> 
>> I am extremely grateful to your commitment to uphold the proper development 
>> process and your commitment that the meeting will not re-open previously 
>> negotiated GNSO policy.  However it is also important to understand that by 
>> "reviewing the IPC/BC proposal", the meeting *is* considering re-opening 
>> matters that were decided by the GNSO in the STI.  So while you may have no 
>> intention of over-riding GNSO-approved policy, that is what several of the 
>> points of IPC/BC's proposal ask for and apparently it is on the agenda.
>> 
>> Furthermore, every person I have spoken with who knew about this meeting has 
>> stated a different understanding of its purpose, another reason a 
>> clarification from you to the community would be appropriate.  One 
>> participant said his understanding was it was to "deal with only TMCH 
>> issues," another said it was only "an educational opportunity for ICANN 
>> staff to better understand how the technology and encryption work".  When 
>> you and I spoke, you said it was "resolve IPR and new gtld issues and hammer 
>> out a framework for a solution".    I understand that the IPC/BC are busy 
>> working now in 3 different working groups this week to develop new proposals 
>> to present to you next week on matters beyond technical or implementation 
>> details, and on both TMCH and URS.  Several of these proposals have already 
>> been rejected by the community, but be prepared to see them again next week, 
>> when NCSG can't be there.
>> 
>> Once this meeting was scheduled, even if only originally for technical 
>> implementation white boarding, certain constituencies have seized upon it as 
>> an opportunity to hit you with new demands at a time when NCSG will not be 
>> there to present the other side of the argument.  Without clear parameters 
>> placed around this meeting, aggressive lobbyists will use it accordingly, 
>> despite the intentions behind the originator that it not turn into a lobby 
>> session.
>> 
>> When you say you were inviting the "impacted constituencies" to Brussels, 
>> please understand that non-commercial users are every bit as impacted by 
>> these rules as the IPC.  These rights are two sides of the same coin, and 
>> when you give more rights to the IPC, you are taking them away from the 
>> general public including noncommercial users -- and a balance must be struck 
>> in that bargain.  NCSG is every bit as impacted as IPC on the implementation 
>> of these rules and should have equal participation rights in the discussion 
>> as commercial users.
>> 
>> Unlike the CSG, NCSG operates on a SG-wide basis on policy matters.  It is 
>> explicitly stated in the NCSG Charter that policy positions are taken by the 
>> NCSG Policy Committee, not individual constituencies within the NCSG.  So 
>> the NCSG Policy Committee is the proper venue to take policy proposals (such 
>> as the IPC-BC proposal) to for consideration in the NCSG.  I know CSG 
>> operates based on constituencies, but NCSG develops policy positions on a 
>> SG-level so that difference should be factored in to how one approaches NCSG 
>> on policy.
>> 
>> Unfortunately no one in the CSG shared the IPC-BC's proposals with the NCSG 
>> Policy Committee, or with the NCUC, and I haven't seen any discussion of it 
>> on the NPOC mailing list either, so any CSG commitments to socialize their 
>> proposal with the rest of the GNSO are missing some gigantic holes.  NCSG 
>> only knows about it because you called to tell me about the Brussels meeting 
>> and the related 8-point demand letter a couple days ago.  Now we are 
>> scrambling to respond and will file a formal response early next week, but 
>> the community was circumvented and has yet to be approached by the 
>> proponents of last week's proposals.
>> 
>> It is unfortunate the Brussels meeting is happening without a balance of 
>> participation from all of the impacted stake-holders.  And NCSG definitely 
>> will take you up on your offer to meet with us separately about these issues 
>> and we agree it is only appropriate for an 'equal time meeting' given these 
>> circumstances.  We can hold your meeting with NCSG in the US, perhaps a 
>> couple weeks after after the Brussels meeting? (as soon as possible, but 
>> with many people in Baku I know that will be difficult).
>> 
>> I understand that you are not knowingly going into the Brussels meeting 
>> intending to change GNSO Policy, but others will, so I hope you will prepare 
>> accordingly, including make a clear announcement in advance that changing 
>> GNSO-approved-policy is not on the table for Brussels.  
>> 
>> Of course I'm available to discuss this matter further at any time and look 
>> forward to scheduling the "equal time meeting" for NCSG at your earliest 
>> opportunity.  Thank you very much.
>> 
>> Best,
>> Robin
>> 
>> 
>> 
>> On Oct 26, 2012, at 2:37 PM, Fadi Chehade wrote:
>> 
>>> Hi Bill,
>>> 
>>> Good to hear from you. I truly appreciate your comments. Let me clarify. 
>>> 
>>> 1. I am the one who called for the meeting. No one lobbied me on this 
>>> matter. I received a high-level briefing on complex issues and realized I 
>>> needed to learn more.
>>> 
>>> 2. This is intended to be an informal white board brainstorming session to 
>>> generate new thinking that advances TMCH discussions. The aim is to 
>>> generate straw man proposals that can be shared with the broader community 
>>> for discussion and consideration.
>>> 
>>> 3. The session will include the following items (accorded equal time/focus):
>>> •   Design implementation solution for trademark registration
>>> •   Design implementation solution for trademark sunrise management
>>> •   Design implementation solution for trademark claims management
>>> •   Review IPC/BC proposal
>>> •   Review framework for contract with the Clearinghouse providers with the 
>>> parties in direct operation with the Clearinghouse. The contract will be 
>>> publicly posted.
>>> 
>>> 4. Given the informality of the session, I asked representatives of the 
>>> constituencies directly impacted with the implementation and contractual 
>>> implications of the Clearinghouse to help me develop a proposal. 
>>> 
>>> 5. I am personally facilitating the white board discussion (partly to learn 
>>> and partly to birth a solution design rapidly). 
>>> 
>>> 6. On the issue of the RPMs: I wish to assure you that I am extremely 
>>> respectful of the policy process and I will not come back with a solution 
>>> that undermines the multi-stakeholder consensus without following proper 
>>> process.  This is my personal commitment to you and to our great community 
>>> that has labored very hard to reach this point.
>>> 
>>> 7. The new requests from the IPC/BC constituencies have been made public 
>>> and I wanted to better understand them - so I used the opportunity we were 
>>> all together to hear them out. I also personally contacted Robin on Skype 
>>> to invite someone from your constituency on this item of the agenda -- so 
>>> your community can participate initially and, more importantly, prepare for 
>>> the public discussion on the matter. Given that the IPC/BC proposal 
>>> discussion will only occupy a 1/5 of our two days (3 hours), i suggested 
>>> that your representative can join via video-link from the ICANN office or 
>>> Skype. Accommodation of time zones is always difficult and the arrival of 
>>> certain parties is dictating the agenda timing but we will do our best to 
>>> accommodate time zones of remote participants.  I also offered Robin that 
>>> if you all wished to meet with me first to share your views without the 
>>> other stakeholders present, that I would be happy to take the time.
>>> 
>>> I hope the above helps clarify my intent and assure you that your input 
>>> below was helpful and appreciated.  I am here at your service to make this 
>>> a success. 
>>> 
>>> Sincerely,
>>> Fadi
>>> 
>>> p.s. if helpful, you are welcome to share my clarifications with your 
>>> colleagues.
>>> 
>>> 
>>> From: William Drake <william.drake@xxxxxx>
>>> Date: Thursday, October 25, 2012 6:42 AM
>>> To: Fadi Chehade <fadi.chehade@xxxxxxxxx>
>>> Cc: "Gross, Robin" <robin@xxxxxxxxxxxxx>
>>> Subject: Re: [Kabob] why holding the meeting in Brussels next week to 
>>> consider unraveling community consensus policy is a really bad idea for 
>>> ICANN
>>> 
>>> Hello Fadi
>>> 
>>> I couldn't agree more with Robin's message.  The repeatedly demonstrated 
>>> penchant of powerful stakeholders to do end runs around the consensus based 
>>> community processes whenever they don't get their maximum preferred 
>>> outcomes has been one of the most sustained and pernicious threats to the 
>>> multi-equal stakeholder model you champion.  People who have issues should 
>>> bring these back to the community processes from which they came, rather 
>>> than undermine collective trust internally and leave ICANN (rightfully) 
>>> open to all kinds of accusations externally.  I believe the correct way to 
>>> deal with such ploys would be to simply turn down requests for such 
>>> meetings and ask for written inputs to which the community can respond 
>>> asynchronously and in full.
>>> 
>>> Best,
>>> 
>>> Bill
>>> 
>>> 
>>> On Oct 25, 2012, at 2:28 AM, Robin Gross wrote:
>>> 
>>>> Dear Fadi,
>>>> 
>>>> Thank you for informing me of a possible meeting in Brussels next week to 
>>>> consider re-opening the issues related to trademark protections for new 
>>>> gtlds that were previously agreed to by the entire community.   However, 
>>>> NCSG is extremely concerned about the proposed Brussels meeting and I 
>>>> don't believe any compromise hammered out in Brussels next week will 
>>>> withstand any serious public scrutiny. 
>>>> 
>>>> Surely we learned something from the bad IRT experience and won't repeat 
>>>> it in Brussels next week with a one-sided, hastily thrown together at the 
>>>> last minute meeting to unravel years of negotiated compromise from many 
>>>> communities, and all to please a single interest.  Changes proposed by the 
>>>> BC and IPC include big substantive changes to existing policy, not purely 
>>>> minor implementation details.   It would be a huge mistake for ICANN to go 
>>>> ahead with the Brussels meeting next week and subject ICANN to criticism 
>>>> that GNSO policy is again thrown-out by last-minute, end-run lobbying by 
>>>> the strongest army.
>>>> 
>>>> Even if throwing-out GNSO agreed policy is not a concern, the lack of 
>>>> balance among impacted interests of the participants allowed to 
>>>> participate in Brussels, is another concern.  Unbalanced inputs obviously 
>>>> lends to unbalanced outcomes.  I understand that at least 4 members of the 
>>>> Intellectual Property Constituency plus several more from the Business 
>>>> Constituency will be present in the Brussels meeting to advocate for 
>>>> making these changes to the Applicant Guidebook.  One single member from 
>>>> the Non-Commercial Stakeholders Group (NCSG) has been invited to attend -- 
>>>> that is already an imbalance of at least 7 in the CSG to 1 in the NCSG in 
>>>> the make-up of those invited to participate in the discussion over the 
>>>> expansion of rights of those 7 against that 1.   7 vs. 1 is a long way 
>>>> from equality among stakeholders.   The lack of equality of participation 
>>>> in Brussels among the interests who negotiated the compromise this meeting 
>>>> is set to unravel is untenable.
>>>> 
>>>> And realistically, without travel support from ICANN, no members of the 
>>>> NCSG will be able to fly to Brussels next week to engage in these 
>>>> negotiations to re-work the rights of all registrants.  Unlike the CSG 
>>>> which advocates for commercial industries, NCSG does not have any industry 
>>>> support that will fly NCSG members around the world to represent the 
>>>> rights of noncommercial users in ICANN policy.  NCSG is, by definition, 
>>>> non-industry considerations of policy matters, so cannot match 
>>>> participation levels of enormous industries with huge budgets.  NCSG's 
>>>> budget is $0 and always has been.  No one pays for the public interest 
>>>> perspective to be at the table.  Although NCSG represents the interests of 
>>>> all non-commercial users of the Internet, which is everyone at one moment 
>>>> or another of the day, these considerations won't make their way into the 
>>>> final policy because participation is prohibitively expensive for the 
>>>> noncommercial interest.
>>>> 
>>>> It is theoretically possible for someone from NCSG - on the other side of 
>>>> the world from Brussels - to join the meeting via a remote link in the 
>>>> middle of their night in their pajamas, but it is not possible to be 
>>>> effective when your body is in the middle of its night.  You've worked at 
>>>> your real job all day and will have to again tomorrow.  How to really 
>>>> participate in a meeting in the middle of the night?   We can't.  Not in a 
>>>> meaningful way.  Thus there will be no meaningful participation by even a 
>>>> single NCSG member to represent the views of 1/4 of the GNSO - the part 
>>>> that represents the public interest in ICANN policy.
>>>> 
>>>> Without any meaningful representation from the public interest, or the 
>>>> rights of registrants, or the rights of nom-commercial users, this meeting 
>>>> is entirely one-sided and will be guaranteed to produce a one-sided result.
>>>> 
>>>> NCSG members have expressed concern to me over the lack of any kind of 
>>>> public announcement of this meeting by ICANN so they don't know if they 
>>>> can talk about it publicly and begin to get the public engaged in the 
>>>> discussion.  How can we be considering holding a meeting to decide if we 
>>>> throw out years of hard fought compromises without a public announcement 
>>>> that there will be such a meeting and explaining its purpose and who is 
>>>> invited to participate?  It is important for ICANN's commitment to 
>>>> transparency that the public be informed of this proposed discussion and 
>>>> its importance to the new gtld process and allowed to react.
>>>> 
>>>> NCSG members are concerned about the lack of clear purpose for this 
>>>> Brussels meeting - what is the agenda and what on the table for 
>>>> discussion?  Is a chance to re-argue old policy battles?  The GNSO makes 
>>>> policy recommendations.  Not a group of trademark attorneys lobbying staff 
>>>> in such a way that no other voice will be heard, ensuring that the GNSO's 
>>>> policy recommendations will be cast aside.  The entire GNSO unanimously 
>>>> approved the trademark recommendations in the STI Report - including the 
>>>> BC and IPC.  All sectors of the community participated in those working 
>>>> groups and hammered out those compromises.  Everyone lost something - that 
>>>> is supposed to be the nature of compromise.  The STI work is now regarded 
>>>> as the cross-community poster-child example for how to do it right to 
>>>> achieve a community consensus.  We can't throw that result out in favor of 
>>>> the disaster IRT model, a one-sided effort that produced proposals the 
>>>> community soundly rejected and the poster child example for "how NOT to 
>>>> make policy".   Surely we have learned from that experience and won't try 
>>>> to reproduce it next week!
>>>> 
>>>> Going forward with the Brussels meeting only creates an incentive, even 
>>>> rewards those stakeholders who abandon their commitments, while punishes 
>>>> those who are willing to honor their commitments.  It is so obvious that 
>>>> is a bad path for ICANN to go down - even with the enormous pressure of 
>>>> the trademark lobby.  At some point someone at ICANN has to find the 
>>>> strength to tell the trademark industry "enough" to the constant clawing 
>>>> for greater and greater rights at the expense of other legitimate 
>>>> interests.  Otherwise there will be no end to the lobbying and constant 
>>>> manipulations.
>>>> 
>>>> I'm not opposed to discussing these issues.  But it shouldn't be in 
>>>> Brussels next week in a way that is sure to return a one-sided result.  We 
>>>> can hold calls, video meetings, discussions on mailing lists, etc to 
>>>> hash-out any truly non-substantive implementation details.  But by its 
>>>> exclusionary design, the Brussels meeting is sure to produce a one-sided 
>>>> result favoring the IPC and excluding the rights of registrants and 
>>>> non-commercial interests including the public interest.   It will open a 
>>>> Pandora's box, set the precedent to lobby the CEO for changes to 
>>>> GNSO-agreed-to policy, and subject ICANN to criticism that things haven't 
>>>> really changed as we'd hoped.  Let's learn from past mistakes (the IRT) 
>>>> and uphold community-wide consensus policies (the STI).  This is a crucial 
>>>> issue for ICANN to get right and show it can follow its own rules and 
>>>> processes in the face of pressure.
>>>> 
>>>> Of course I'm happy to talk with you further about this proposed meeting 
>>>> and will continue to try to find some way to include a noncommercial user 
>>>> in it is some way.  I just wanted to share with you the initial feedback 
>>>> I've received from members while we scramble to react to the IPC/BC 
>>>> proposal.  Thanks again for alerting NCSG that this meeting had been 
>>>> proposed for next week, but please try to understand why we think it is a 
>>>> bad idea to actually hold this meeting in this way at this time.  Thank 
>>>> you.  Now back to the World Series.
>>>> 
>>>> All best,
>>>> Robin
>>>> 
>>>> 
>>>> IP JUSTICE
>>>> Robin Gross, Executive Director
>>>> 1192 Haight Street, San Francisco, CA  94117  USA
>>>> p: +1-415-553-6261    f: +1-415-462-6451
>>>> w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx
>>>> 
>> 
>> 
>> 
>> 
>> IP JUSTICE
>> Robin Gross, Executive Director
>> 1192 Haight Street, San Francisco, CA  94117  USA
>> p: +1-415-553-6261    f: +1-415-462-6451
>> w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx
>> 
>> 
>> 
> 
> 
> 
> 
> IP JUSTICE
> Robin Gross, Executive Director
> 1192 Haight Street, San Francisco, CA  94117  USA
> p: +1-415-553-6261    f: +1-415-462-6451
> w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx
> 
> 
> 
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