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<div>It truly is a tricky situation, Kathy. It will be interesting to see how the registrars respond to our queries in this area. The more sophisticated registrars, and those who are paid to represent them, will make exactly the argument you are making. A step back from that, and more convincing from my point of view, will be the argument that freedom of contract should allow parties to make such deals outside the ICANN framework. Of course, we also have the new ICANN Bylaws to contend with.</div>
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<div>Milton referred us earlier in the week to an excellent paper in progress by Anmarie Bridy entitled “Notice and Takedown in the Domain Name System: ICANN’s Ambivalent Drift Into Online Content Regulation (<a href="https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2920805">https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2920805</a> ). I quote from that paper:</div>
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<div>“<em>No matter how vehemently ICANN officials insist that they are minding the limits of their mission, the truth of the matter is that ICANN knowingly created a contractual architecture for the new gTLDs that supports an unprecedented program of private, DNS-based content regulation on behalf of copyright holders and, potentially, other “trusted” parties. Moreover, in creating that architecture, ICANN did nothing to secure any procedural protections or uniform substantive standards for domain name registrants who find themselves subject to this new form of DNS regulation. That omission should be a red flag for those who worry that ICANN’s newly minted independence from the U.S. government will make its internal governance more susceptible to capture by powerful commercial and governmental interests</em>.”</div>
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<div>Yes, Kathy, the new ICANN Bylaws seem to prevent ICANN from getting involved in content. ICANN Bylaws §1.1 clearly states:</div>
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<div>“(c) <em>ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet's unique identifiers or the content that such services carry or provide, outside the express scope of <u>Section 1.1(a)</u>. For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority</em>.”</div>
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<div>Sadly, there is pesky section 1.1(a), which reads, in part:</div>
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<div>“<em>The issues, policies, procedures, and principles addressed in Annex G-1 and Annex G-2 with respect to gTLD registrars and registries shall be deemed to be within ICANN's Mission</em>.”</div>
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<div>With respect to registrars (annex G1) and registries (annex G2) the following is expressly within the scope of ICANN:</div>
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<div>“<em>reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)”.</em></div>
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<div>Further, with regard to registrars (annex G1) and registries (annex G2) the following is to be held within ICANN’s scope:</div>
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<div>“<em>resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names)”</em></div>
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<div>Ms. Bridy writes extensively about the implications of Spec 11, public interest commitments, and the 2013 RAA. Well worth reading.</div>
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<div>Further, and simply put, some aspects of content related to intellectual property are within the express scope of ICANN’s mission statement, via Annex G1 and G2 ported to ICANN’s mission statement through the §1.1 (a) exception to the prohibition of ICANN becoming involved in content through the §1.1(c) prohibition.</div>
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<div>We don’t really know exactly what all of this means. Intellectual property interests will argue that the provision in §1.1 (c) exempting that mentioned in §1.1 (a) (Annex G1 and Annex G2) from the prohibition in §1.1(c) against ICANN regulating content means ICANN can and perhaps should be or demand others to be the global intellectual property police. Others, like myself and most of us, will argue that the exception is a narrow one allowing ICANN to include these issues in an almost abstract and certainly distant way in contracts made with registrars and registers. I think our argument is stronger but we won’t really know with any certainty what this means until disputes in this area result in a complaint to and a decision by an Independent Review Panel (or several of them).</div>
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<div>I think there is less of a question that the new ICANN Bylaws do allow ICANN to become involved in creating or mandating rules for systems created down market to resolve disputes relating to registration of domain names due to alleged intellectual property violations. Per Annex G-1 and G-2 the inclusion of intellectual property in both annexes clearly creates a presumption that intellectual property disputes, which invariably involve use of the domain names, are included in ICANN’s mission as “resolution of disputes regarding the registration of domain names” are within ICANN’s mission per Annex G-1 and G-2 ported into ICANN’s mission statement in Bylaws §1.1.</div>
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<div>So, for example, I do believe it is within ICANN’s mission to be able to create requirements for proper due process safeguards to be built into these down market private agreements, such as the Donuts – MPAA agreement, should it so desire. We can yell about ICANN getting involved in content but the reality is that the new Bylaws do not sadly construct a wall prohibiting ICANN involvement in all types of content disputes nor, fortunately, does it prevent us from demanding ICANN institute certain safeguards for registrants when their interests are threatened by, for example, private agreements made possible by the DNS architecture created by ICANN. </div>
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<div>For now, I’m hopeful that registrars will respond positively to charges that these agreements are a direct challenge to an ecosystem that they have done very well by. Continued subversion of the good faith adherence to ICANN developed policies, as both floors and ceilings, is in their long term interest. Articles like this by NCSG member EFF (<a href="https://www.eff.org/deeplinks/2016/02/mpaa-may-donuts-they-shouldnt-be-copyright-police">https://www.eff.org/deeplinks/2016/02/mpaa-may-donuts-they-shouldnt-be-copyright-police</a> ) may be helpful in causing them to recognize that.</div>
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<div>If not, though, it’s important to realize that there is not a complete prohibition through the Bylaws for getting ICANN involved in all content related issues. Indeed, if we can’t stop this abuse of good faith ICANN involvement by certain registrars, involving ICANN may be our last and best chance to prevent registrants from being abused by agreements made by the industry cartel known as the Domain Name Association. </div>
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<div>Ed</div>
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<div><span style="font-family: tahoma,arial,sans-serif; font-size: 10pt;"><b>From</b>: "Kathy Kleiman" <kathy@kathykleiman.com><br />
<b>Sent</b>: Tuesday, February 28, 2017 2:38 AM<br />
<b>To</b>: ncsg-pc@lists.ncsg.is<br />
<b>Subject</b>: Re: [NCSG-PC] Topics for meetings with RySG & RrSG?</span>
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<p>Maybe. Don't we have a bylaw that says ICANN is to stay out of the content space? We have never wanted ICANN to become the regulator of speech and content, and with the transition, I thought that we affirmed that. So we may be in a Catch-22: we don't want private agreements to bypass speech/expression protections, and this type of regulation does not belong within ICANN. </p>
<p>If that is the case, now what do we do?</p>
<p>Best, Kathy</p>
<div class="moz-cite-prefix">On 2/27/2017 8:44 PM, Rafik Dammak wrote:</div>
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<div class="gmail_extra">Hi Ed,</div>
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<div class="gmail_extra">I was basically suggesting to bring it to ICANN space. we are in violent agreement.</div>
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<div class="gmail_extra">Best,</div>
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<div class="gmail_extra">Rafik</div>
<div class="gmail_quote">2017-02-28 10:41 GMT+09:00 Edward Morris <span dir="ltr"><<a href="mailto:egmorris1@toast.net" moz-do-not-send="true" target="_blank">egmorris1@toast.net</a>></span>:
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<blockquote type="cite"><span class="gmail-"><font color="#000000"><span style="background-color:rgba(255,255,255,0)">with the regard to Healthy Domain Initiative and PIR's SCDRP, can we follow a more positive and proactive approach and asking them to get involved in more Multistakeholder fashion?</span></font></span></blockquote>
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<span style="background-color:rgba(255,255,255,0)"><span class="gmail-">So more multi-stakeholder private agreements outside of ICANN, meaning all we do here is compromise to set industry floors which are then used to build maximalist protection policies threatening free speech with no guarantee of due process or appropriate privacy protection through private agreements with some sort of multi-stakeholder veneer? No thanks. If the real action is going to be the downmarket private agreements who in their right mind will volunteer to do work in ICANN? This process is a direct threat to the ICANN model with the logical end result being progressives calling for government intervention to prevent industry cartels from setting market conditions that threaten every value the NCSG was created to protect. Need I suggest that the day we have to call on the governments of the world to protect our free speech rights online is the day there no longer is such a thing. Of course when what NCSG member Rebecca McKinnon so brilliantly called Facebookistan, when applied to governance of social media by terms of service boilerplate agreements, is extended in a modified fashion to the entire dns there may be no other option.<br />
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The process stinks, the policy stinks and this group needs to stand up for true multi-stakeholder principles and demand industry standards, floors and ceilings, be set inside ICANN, not outside of it. Otherwise the Donuts - MPAA agreement is the beginning of the end of this model of internet governance. <br />
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No compromise, no surrender.<br />
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Ed</span></span></div>
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