[PC-NCSG] Fwd: UDRP motion
William Drake
william.drake
Thu Nov 17 12:43:43 EET 2011
resending for Mary who says she is unable to
Begin forwarded message:
> From: <Mary.Wong at law.unh.edu>
> Date: November 17, 2011 9:45:23 AM GMT+01:00
> To: <joy at apc.org>, <wendy at seltzer.com>, <k.komaitis at strath.ac.uk>
> Cc: <rafik.dammak at gmail.com>, <wolfgang.kleinwaechter at medienkomm.uni-halle.de>, <william.drake at uzh.ch>
> Subject: RE: UDRP motion
>
> Hi Joy,
>
> I think that we might try to use the first Resolved in Jeff's motion (on IRTP rec 7) as a reason why a phased PDP with the scoping-out by the DT recommended in my motion makes sense.
>
> As for rights protection mechanisms, I think Jeff is referring to the RPMs mandated for the new gTLD program w.r.t. trademark protection, I.e. the TM Clearinghouse, TM Claims Service and URS mechanism.
>
> My main problem with Jeff's motion is that a new Issue Report has to be done 18 months after the first RPM launch in the new gTLD program. That means no work will be done at all on any aspect of the UDRP, except possibly just the IRTP lock issue, for at least another 2-3 years from now, even though many admit the UDRP currently has flaws, some of which are procedural fixes.
>
> Even at that point, I don't see how a PDP can NOT be phased and sub-Teams formed. That's why I thought one tack we can take now is to launch a PDP on the explicit understanding that we may not get to the meat and bones of the UDRP till it's time to review the URS, with the task of scoping things out and recommending time lines given to a drafting team formed for that specific task.
>
> That's the point I hope to make on the call, anyway - hopefully you all can echo and add, if you agree. Btw I will be calling from an airport so there's a slight chance I may not be on Skype or adobe. If worst comes to the worst and i drop off the call, hopefully someone can make that point for me!
>
> Oh and my motion still needs a second :-)
>
> What are we going to do about Berard's points made on behalf of the BC for the outreach motion?
>
> Joy Liddicoat <joy at apc.org> wrote:
>
>
> Hi all ? a comment on this below.
>
> Joy
>
>
>
>
>
> From: Konstantinos Komaitis [mailto:k.komaitis at strath.ac.uk]
> Sent: Thursday, 17 November 2011 6:47 a.m.
> To: Mary.Wong at LAW.UNH.EDU; Wendy Seltzer (wendy at seltzer.com); Joy Liddicoat
> (joy at apc.org)
> Cc: William Drake (william.drake at uzh.ch); Rafik Dammak
> (rafik.dammak at gmail.com); Wolfgang Kleinw?chter
> (wolfgang.kleinwaechter at medienkomm.uni-halle.de)
> Subject: UDRP motion
>
>
>
> Dear all,
>
>
>
> The UDRP motions look as follows now:
>
>
>
> 2. PROPOSED MOTION ON REVIEW OF THE UDRP
>
> Made by: Mary Wong
>
> Seconded by:
>
> WHEREAS, on 3 February 2011 the GNSO Council adopted a resolution
> requesting an Issue Report on the current state of the Uniform Dispute
> Resolution Policy (UDRP) from ICANN staff, to include consideration of: (1)
> how the UDRP has addressed the problem of cybersquatting to date, and any
> insufficiencies/inequalities associated with the process; (2) whether the
> definition of cybersquatting inherent within the existing UDRP language
> needs to be reviewed or updated; and (3) suggestions for how a possible PDP
> on this issue might be managed;
>
> WHEREAS, a Preliminary Issue Report was prepared by ICANN staff and
> released for public comment from 27 May 2011 to 22 July 2011, for which 24
> community comments were received;
>
> WHEREAS, further feedback was received in the form of responses by
> various UDRP providers to a questionnaire issued by ICANN staff, a Webinar
> conducted by ICANN staff, and two UDRP-related sessions held at the 41st
> ICANN meeting in Singapore;
>
> WHEREAS, a Final Issue Report taking into account the community
> comments and public feedback received was prepared by ICANN staff and
> published on 3 October 2011;
>
> WHEREAS, the Final Issue Report illustrates a diversity of views among
> the ICANN community as to a number of UDRP-related issues, such as: (1) the
> advisability of commencing a PDP at this time rather than when the new
> rights-protection mechanisms (RPMs) mandated by the new gTLD program (e.g.
> the Uniform Rapid Suspension (URS) system) are reviewed; (2) whether the
> UDRP, although improved over time in terms of consistency of application and
> streamlining of processes, is fair; and (3) other matters such as whether to
> launch a PDP or form an experts? panel, and whether more formal
> accreditation or contracts between ICANN and UDRP providers is desirable;
>
> WHEREAS, a PDP provides the best means for assessing how to respond to
> this diversity of views, in particular because a PDP can be designed to
> address concerns about the size and complexity of the UDRP review, such as:
> (1) by identifying short-term issues that can be worked on during the launch
> of the new gTLD program and up to the first review of the URS, and other
> issues that may require a longer time frame for work, including any
> process-related or current implementation problems; (2) the formation of
> Sub-Teams within the Working Group to handle different issues, tasks and
> timelines; and (3) the division of the PDP into work phases, including
> possible issues and time frames corresponding to the new gTLD program, if
> appropriate;
>
> WHEREAS, the UDRP is the oldest GNSO policy that has yet to be
> reviewed, and the further postponement of a PDP is unlikely to improve or
> correct some of the flaws and problems with the current UDRP that were
> identified by the ICANN community during the process of preparation of the
> Final Issue Report; and
>
> WHEREAS, the issue of community bandwidth and resource allocation may
> not diminish even after the launch of the new gTLD program and the new RPMs,
> and reviewing such a complex policy as the UDRP together with the URS is
> likely to exert even more pressure on community bandwidth and resources;
>
> Be it RESOLVED, that the GNSO Council approves the initiation of a PDP
> on the UDRP and the establishment of a Working Group on UDRP Review;
>
> RESOLVED, further, that the drafting team that will be formed and
> charged with developing a charter for the Working Group on UDRP Review take
> into account the diverse possibilities for Working Group modalities and work
> phasing; and
>
> RESOLVED, further, that the charter for the Working Group specifically
> task the Working Group with considering: (1) related issues and
> recommendations raised by the Post-Expiration Domain Name Recovery (PEDNR)
> PDP Working Group, which were adopted by the GNSO Council as recommendations
> to the ICANN Board of Directors at its meeting on 21 July 2011; and (2)
> recommendation #7 of the IRTP Part B Working Group, which the GNSO Council
> at its meeting on 22 June 2011 received and agreed to consider when it takes
> up consideration of the Final Issue Report on the Current State of the UDRP;
> and (3) such other similar issues and recommendations as it considers
> appropriate.
> ----------------------------------------------------------------------------
> ----------------------------------------------------------------------------
> ----------------------------------------------------------------------------
> ---------------------------------------
>
> 3. Competiting Proposed Motion on the UDRP PDP
>
> Made by: Jeff Neuman
>
> Seconded by:
>
> Whereas the Registration Abuse Policies Working Group submitted a final
> report the GNSO Council on 29 May 2010 (see
> <http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf>
> http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf),
> recommending an issue report on the current state of the UDRP considering
> both (a) How the UDRP has addressed the problem of cybersquatting to date,
> and any insufficiencies/inequalities associated with the process, and (b)
> Whether the definition of cybersquatting inherent within the existing UDRP
> language needs to be reviewed or updated, and
>
> Whereas, on February 3, 2011, the GNSO Council requested an Issues Report in
> accordance with the recommendations of the Registration Abuse Policies
> Working Group [LINK], and
>
> Whereas, a Preliminary Issue Report was published on 27 May 2011 [LINK] and
> series of webinars and workshops were held soliciting public comment to
> allow for the ICANN community to provide feedback on the analysis and
> recommendations contained therein, and
>
> Whereas, a Final Issue Report was published on 3 October 2011 [LINK] in
> which ICANN staff recommended the GNSO Council consider the ?perspective of
> the majority of the ICANN community, and the advice of the Government
> Advisory Committee (GAC), and the At-Large Advisory Committee? and that ?a
> PDP be delayed until after the New gTLD Uniform Rapid Suspension System
> (URS) has been in operation for at least eighteen months. . . [to] allow the
> policy process to be informed by data regarding the effectiveness of the
> URS, which was modeled on the UDRP, to address the problem of
> cybersquatting.?
>
> RESOLVED, that the GNSO approved the initiation of a PDP and the
> establishment of a Working Group on recommendation #7 of the IRTP Part B
> Working Group concerning the requirement to lock a domain name subject to
> UDRP proceedings, which the GNSO Council at its meeting on 22 June 2011
> received and agreed to consider when it takes up consideration of the Final
> Issue Report on the Current State of the UDRP.
>
> JL: this reads like a ?let?s start with clause? because it limits the scope
> to one issue (domain name locking) so that it can be taken up in the wider
> consideration of the UDRP (assuming the latter happens). If the GNSO did
> agree to a wider review ? would this be a good issue to start with?
>
>
>
> RESOLVED further, the GNSO Council requests a new a new Issue Report on the
> current state of all rights protection mechanisms implemented for both
> existing and new gTLDs, including but not limited to, the UDRP and URS,
> should be delivered to the GNSO Council by no later than eighteen (18)
> months following the delegation and launch of the first new gTLD.
>
> JL: The more I looked at this the more I wasn?t sure what this meant?.For
> example which rights? And which rights protection mechanisms? Would it
> include rights to free speech, freedom of association, and equality ? the
> criminal prosecution in Lebanon of the registrants of www.gaylebanon.org
> for example. Or is it only some rights eg intellectual property rights?
>
> Bill raised a very important point I think: Jeff?s motion recommends the
> initiation of a PDP and the establishment of a WG on recommendation 7 of the
> IRTP Part B WG?.
>
> Mary on the other hand said that a PDP and a WG should be specifically
> created for the UDRP.
>
>
>
> We need to push for Mary?s suggestion if her motion fails. The UDRP should
> not be a subsequent issue for a WG ? a WG should be dedicated to this issue.
> now, for any other substantive issues, I would also suggest we task the WG
> to focus first on procedural issues and then on substantive. We will
> definitely get more support on if we follow this route?.
>
>
>
> JL: Agreed: If Mary?s resolution fails, I would suggest the following
> friendly amendment that would establish the review, start with the WG
> looking at Rec #7, and call for a report on the overall UDRP review 18
> months after the launch of the new gTLDs:
>
> RESOLVED, that the GNSO approved the initiation of a PDP and the
> establishment of a Working Group on the UDRP,
>
> RESOLVED that the Working Group commence with consideration of
> recommendation #7 of the IRTP Part B Working Group concerning the
> requirement to lock a domain name subject to UDRP proceedings, which the
> GNSO Council at its meeting on 22 June 2011 received and agreed to consider
> when it takes up consideration of the Final Issue Report on the Current
> State of the UDRP.
>
> RESOLVED, further, the GNSO Council requests a new Issue Report on the UDRP
> Review be delivered to the GNSO Council by no later than eighteen (18)
> months following the delegation and launch of the first new gTLD.
>
>
>
>
>
> Can you please liaise between you and decide which way you want to go?
>
>
>
>
>
>
>
> Thanks
>
>
>
> KK
>
>
>
> Dr. Konstantinos Komaitis,
>
>
>
> Senior Lecturer,
>
> Director of Postgraduate Instructional Courses
>
> Director of LLM Information Technology and Telecommunications Law
>
> University of Strathclyde,
>
> The Law School,
>
> Graham Hills building,
>
> 50 George Street, Glasgow G1 1BA
>
> UK
>
> tel: +44 (0)141 548 4306
>
> http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulat
> ion-isbn9780415477765
>
> Selected publications:
> http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
>
> Website: www.komaitis.org
>
>
>
>
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