[PC-NCSG] Fwd: [NCSG-Discuss] GAC comments - and a note on support for diversity of views in our community

Mon May 13 22:38:07 EEST 2013

Ditto and thanks again Milton et al!

Mary W S Wong
Professor of Law
Faculty Chair, Global IP Partnerships
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong at law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php

>>> 

From:  
Avri Doria <avri at acm.org> 

To: 
NCSG-Policy Policy <pc-ncsg at ipjustice.org> 

Date:  
5/13/2013 3:36 PM 

Subject:  
Re: [PC-NCSG] Fwd: [NCSG-Discuss] GAC comments - and a note on support
for diversity of views in our community 

I support NCSG sending the statemen

avri

On 13 May 2013, at 20:13, Robin Gross wrote:

> Oops - should have sent this "last call for changes" to the NCSG
Policy Committee email list.
>
> Thanks,
> Robin
>
>
> Begin forwarded message:
>
>> From: Robin Gross <robin at IPJUSTICE.ORG>
>> Subject: Re: [NCSG-Discuss] GAC comments - and a note on support for
diversity of views in our community
>> Date: May 13, 2013 11:06:10 AM PDT
>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
>> Reply-To: Robin Gross <robin at IPJUSTICE.ORG>
>>
>> Folks:
>>
>> The edited version of the draft is at:
>>
https://docs.google.com/document/d/1d6GT0zqLjU6e7Js-TE2Gjlm_-B5xvhE5CrRPZSV3oV4/edit
>>
>> As a compromise to the few objections on the earlier drafts, the
current version states it does not take a position on the amazon and
patagonia applications.  (Remember we are not commenting on individual
applications in this stmt, we are commenting on GAC process).
>>
>> The deadline for NCSG filing these comments is tomorrow so I will be
filing them in 24 hours unless there are any other strong objections.  
Thanks to Milton and others for all the redrafting and compromising to
get a statement we can submit as a group.
>>
>> Thank you,
>> Robin
>>
>>
>> On May 13, 2013, at 8:32 AM, Fl?vio Rech Wagner wrote:
>>
>>> I fully endorse Kathy's analysis and suggestions regarding Amazon
and Patagonia. And I think it is entirely possible to find the right
language to represent all of our views.
>>>
>>> Flavio
>>>
>>>
>>>> All,
>>>> There is a vital split of our community, and I think that is OK. I
remember talking with Robin about the split of the NCSG on the Closed
Generics issues, and she celebrated it -- diversity is good in a
community like ours, she said.  I found that an encouraging response.
>>>>
>>>> Here too we are split on an important issue -- whether the GAC
intervened appropriately on various areas of its GAC Advice? There are
some in our community who did not believe the GAC had the right to
intervene at all on these New gTLD policy issues. There are others of us
(myself included) who believe that the New gTLD Applicant Guidebook
expressly reserved the right for the Governments/GAC to intervene at
this moment in time -- and to speak on substantive matters, including
why some applications for New gTLDs should not be granted.
>>>>
>>>> In the Applicant Guidebook, we wrote a specific provision for GAC
Advice: "The GAC may provide public policy advice directly to the
>>>> ICANN Board on any application."  (full section below - 1.1.2.7 of
the Applicant Guidebook).  We also made it almost impossibly hard - we
required "consensus of the GAC" -- an almost impossible threshold. Yet,
the GAC did it.  They met longer than anyone in Beijing, starting the
Thursday before the meeting and continuing to work on their Advice until
11pm Wednesday, six days later! I give them great credit for that.  If
the goal of a multistakeholder group is that everyone does their part
with hard work and good faith according to the rules we have
established, then my personal view is that the GAC did it and did it
well.
>>>>
>>>> Does that mean that I agree with everyone they said-- no. I don't
like categories, per se, but I like much of the advice there on specific
applicantions. I think Communities need more support (IV.e). I don't
like Closed Generics (Appendix 1). And I don't like trademark owners
registering Patagonia and Amazon over the objections of their regions.
>>>>
>>>> What I see happening is a fight over the scope of trademark law
and New gTLDs.  That's the issue with Closed Generics and it's also the
issue here.  Generic and Geographic terms have special standing in
trademark law -- these words have special protection under the fair use
provisions.  Does it stop a company from getting a trademark? Not in
many cases.  Does it stop it from using that trademark in a way that
hurts the generic and geographic communities, businesses and sectors,
Yes. Is a New gTLD ambiguous on this issue? -- double Yes.  So ample
room for our multistakeholder community -- including our governments and
civil society to weigh in!
>>>>
>>>> And they have-- on both sides. It is very clear that civil society
has weighed in to protect Patagonia and Amazon, and the governments have
responded to a civil society request -- a noncommercial community
request -- from these regions.  I think the GAC spoke clearly and within
its scope when it asked that ICANN: "not proceed beyond Initial
Evaluation with the following strings." Section IV.c., GAC Advice.
>>>>
>>>> I would ask that Milton work with Carlos, as he worked with me, to
find the right language in the statement that represents all of our
views.  Some of us are procedural people, some of us are substantive
ones -- all of us are NCSG.  It's a hard path, but we can do it!
>>>> Best,tx and regards,
>>>> Kathy
>>>> p.s. This may be easier than we think because upon review, the
Patagonia/Amazon GAC Advice is section IV.c. and the public comment asks
for input on section IV.b. and Annex I (the categories).  Patagonia and
Amazon aren't even raised in Annex I at all!
>>>>
>>>> p.p.s. The text of Applicant Guidebook, Section 1.1.2.7:
>>>>
>>>> 1.1.2.7 Receipt of GAC Advice on New gTLDs
>>>> The GAC may provide public policy advice directly to the
>>>> ICANN Board on any application. The procedure for GAC
>>>> Advice on New gTLDs described in Module 3 indicates that,
>>>> to be considered by the Board during the evaluation
>>>> process, the GAC Advice on New gTLDs must be submitted
>>>> by the close of the objection filing period. A GAC Early
>>>> Warning is not a prerequisite to use of the GAC Advice
>>>> process.
>>>>
>>>> If the Board receives GAC Advice on New gTLDs stating
>>>> that it is the consensus of the GAC that a particular
>>>> application should not proceed, this will create a strong
>>>> presumption for the ICANN Board that the application
>>>> should not be approved. If the Board does not act in
>>>> accordance with this type of advice, it must provide
>>>> rationale for doing so.
>>>>
>>>> See Module 3 for additional detail on the procedures
>>>> concerning GAC Advice on New gTLDs.
>>>> ****
>>>> :
>>>>> I have checked with Flavio and others, and we agree with Kathy's
proposal. I think Flavio has made clear why we see it as problematic.
>>>>>
>>>>> --c.a.
>>>>>
>>>>> On 05/09/2013 10:09 PM, Kathy Kleiman wrote:
>>>>>> Hi All,
>>>>>> As we move towards a common denominator, I support not
including
>>>>>> anything in the statement about .amazon and .patagonia (just as
Milton
>>>>>> has graciously agreed not to include anything on closed
generics).
>>>>>> Best, Kathy
>>>>>>
>>>>>> :
>>>>>>> I haven't seen any statements from civil society organizations
from
>>>>>>> South America supporting the approval of the .amazon and
.patagonia
>>>>>>> applications. Exact on the contrary. Civil society in South
America is
>>>>>>> definitely against the approval of these applications, as you
can see,
>>>>>>> for example, from the list of organizations signing the
document sent
>>>>>>> by Carlos Afonso in a previous message. Let's stop assuming
that this
>>>>>>> is just a matter of governments and "empty political
statements".
>>>>>>>
>>>>>>> In a few cases, governments may reflect the position of the
civil
>>>>>>> society ...
>>>>>>>
>>>>>>> Regards
>>>>>>>
>>>>>>> Flavio
>>>>>>>
>>>>>>>
>>>>>>>> I've not seen yet any valid argument or study from the
Argentinean
>>>>>>>> government why .patagonia should not be approved, not that I'm
in
>>>>>>>> favor but claiming ownership or sovereignty with empty
political
>>>>>>>> statements IMHO has no weight in the evaluation process and
the board
>>>>>>>> can disregard the GAC advice.
>>>>>>>>
>>>>>>>> I agree with Milton that because government X say so is not a
solid
>>>>>>>> argument to deny an application.
>>>>>>>>
>>>>>>>> -Jorge
>>>>>>>>
>>>>>>>> On May 9, 2013, at 4:01 PM, "Carlos A. Afonso" <ca at CAFONSO.CA>
wrote:
>>>>>>>>
>>>>>>>>> While I agree with most of the doc, I do not agree (along
with many
>>>>>>>>> civil society orgs & movements) with the arguments in the
>>>>>>>>> paragraph  mentioning .amazon and .patagonia. Please leave
these
>>>>>>>>> arguments to  the commercial interest groups.
>>>>>>>>>
>>>>>>>>> fraternal regards
>>>>>>>>>
>>>>>>>>> --c.a.
>>>>>>>>>
>>>>>>>>> sent from a dumbphone
>>>>>>>>>
>>>>>>>>> On 9 May 2013, at 14:18, Robin Gross <robin at IPJUSTICE.ORG>
wrote:
>>>>>>>>>
>>>>>>>>>> I agree.  These are solid comments and NCSG should endorse
them.
>>>>>>>>>>
>>>>>>>>>> Thanks very much, Milton, for the difficult work of drafting
and
>>>>>>>>>> re-drafting to incorporate the views of others.
>>>>>>>>>>
>>>>>>>>>> Best,
>>>>>>>>>> Robin
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> On May 9, 2013, at 10:49 AM, McTim wrote:
>>>>>>>>>>
>>>>>>>>>>>
>>>>>>>>>>>
>>>>>>>>>>> On Thu, May 9, 2013 at 1:27 PM, Milton L Mueller
<mueller at syr.edu>
>>>>>>>>>>> wrote:
>>>>>>>>>>>> Today in domain incite the writer starts his blog post
with:
>>>>>>>>>>>> " For the last few weeks I've been attempting to write a
sensible
>>>>>>>>>>>> analysis of the Governmental Advisory Committee's advice
on new
>>>>>>>>>>>> gTLDs without resorting to incredulity, hyperbole or
sarcasm"
>>>>>>>>>>>>
>>>>>>>>>>>> Exactly what I felt when I took on the task!!
>>>>>>>>>>>>
>>>>>>>>>>>> So it took him a few weeks to work it out of his system.
Can you
>>>>>>>>>>>> all forgive me - or perhaps respect me - for taking only
one week?
>>>>>>>>>>>>
>>>>>>>>>>>> I have revised the GAC comments. They are tamer. They
eliminated
>>>>>>>>>>>> one mistake that Kathy pointed out to me. the bow to
division
>>>>>>>>>>>> within NCSG regarding closed generics. But they still
drive home
>>>>>>>>>>>> what are absolutely essential points that MUST be made,
and
>>>>>>>>>>>> made  strongly, in this important comment period. Please
take a
>>>>>>>>>>>> fresh look.
>>>>>>>>>>>>
>>>>>>>>>>>>
https://docs.google.com/document/d/1d6GT0zqLjU6e7Js-TE2Gjlm_-B5xvhE5CrRPZSV3oV4/edit?usp=sharing
>>>>>>>>>>>>
>>>>>>>>>>>
>>>>>>>>>>>
>>>>>>>>>>> I am happy with the re-write in terms of tone and
substance.
>>>>>>>>>>>
>>>>>>>>>>> It is important that we make a solid statement about this
to the
>>>>>>>>>>> Board, as it gives them political "cover" to say no to the
GAC.
>>>>>>>>>>>
>>>>>>>>>>>
>>>>>>>>>>> --
>>>>>>>>>>> Cheers,
>>>>>>>>>>>
>>>>>>>>>>> McTim
>>>>>>>>>>> "A name indicates what we seek. An address indicates where
it is.
>>>>>>>>>>> A route indicates how we get there."  Jon Postel
>>>>>>>>>>
>>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
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>>>>>>> This message was sent using IMP, the Internet Messaging
Program.
>>>>>>
>>>
>>
>
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