[PC-NCSG] Motion on RPMs & overall thoughts on the amount of work coming onto the GNSO table.

[Kathy Kleiman]

Amr,
First, I truly, truly appreciate all you are doing on this. Second, I 
would really need to sit down with you and go through the Staff Report 
and our extensive comments -- and I can do that after Tuesday. But 
third, I am concerned about putting most of the NCSG 
concerns/issues/ideas in the Annex B/Potential Issues to be Reviewing -- 
"kitchen sink" category.  Every WG has the core issues that it is forced 
to address and then other issues it may address. In my experience, WG 
virtually never get to the issues they "may" address -- only the core 
issues they MUST address because that is already overwhelming.

This WG MUST be asked to assess what happens when trademark owners abuse 
the system (reverse domain name hijacking); they MUST assess whether the 
"procedural rules" voluntarily adopted by the arbitration WITHOUT GNSO 
OVERSIGHT are and have been fair and neutral or help largely those who 
chose and pay them (the trademark owner/complainants). There are more in 
our list/our comments that involve fairness and balance - freedom of 
expression & fair use versus Rights Protection Mechanisms.

In fact, that should even be reflected in the title. If we are only 
dealing with Rights Protection Mechanisms, then by the title, we only 
listen to one side. Why can't even the title of this WG be balanced?

Question: so the staff is Not Mandating that we do URS/TMCH first -- but 
that the WG can decide for itself whether it does UDRP or URS/TMCH 
first?  That would be OK. The reason I ask is that IPC wants few changes 
to UDRP and all of them to URS -- which is a hugely unfair, 
no-due-process system in and of itself (which is why we, NCSG, made it 
so, so narrow).  UDRP is the system with a) fairer notice b) fairer time 
for Panelist evaluation. Go to URS first and all the IPC wants is 
"transfer" -- moving a losing domain name to themselves: virtually no 
fairness and no due process.

The best way (and virtually the only way) to defend registrants is to 
assess the UDRP first, make it fairer for all, and then look at the URS 
(which will seem trivial in comparison). Do it the other way, assess the 
upper floors of the building before evaluating the foundation, and you 
have to put a lot more changes into the upper floors.

I will be offline this weekend through Tuesday, but happy to talk, work, 
support, research as of Wednesday -- if that is OK.

I don't think we can compromise with procedure, Amr, because in it lies 
all we care about....
Best and huge tx,
Kathy


On 2/3/2016 2:30 PM, Amr Elsadr wrote:
> Hi,
>
> I never received this message in my inbox, so resending.
>
> Thanks.
>
> Amr
>
>> On Feb 2, 2016, at 5:17 PM, Amr Elsadr <aelsadr at egyptig.org> wrote:
>>
>> Hi,
>>
>> I wanted to follow up on this thread. Following my withdrawal of the motion to launch the RPMs review PDP, I?ve been working with staff to address NCSG's concerns. Specifically, the discussion has been on issues identified in the NCSG comment on the preliminary issues report that were not included in the final report, in addition to the 2-phase method approach to working through this PDP; with a review of the RPMs developed for the new gTLDs being conducted before the the review of the UDRP. This is what we came up with:
>>
>> First, the issues identified by the NCSG will be included in the Annex B of the final issues report (http://gnso.icann.org/en/issues/new-gtlds/rpm-final-issue-11jan16-en.pdf). These issues have already been documented in the staff report of the public comments. NCSG?s comments begin on row 68 of the table found here: https://www.icann.org/en/system/files/files/report-comments-rpm-prelim-issue-02dec15-en.pdf. Including these in Annex B places them in the ?List of Potential Issues for Review? to be discussed by the PDP WG.
>>
>> Second, on the methodological approach, I?ve agreed with staff that the charter will be amended to inform the PDP WG that there were divergent views on the method to follow. The same two-phase method will still be the method outlined in the charter, however, the charter will instruct the WG to develop a work-plan, and in doing so, consider reviewing or amending the method while discussing the views of different stakeholders.
>>
>> I would appreciate feedback on this now, so that I have a clear picture of the views on this before proceeding with this item of Council business. Personally, I believe this is a fair compromise. I hope I?m not missing anything.
>>
>> Thanks.
>>
>> Amr
>>
>>> On Jan 19, 2016, at 5:17 PM, Kathy Kleiman <kathy at KATHYKLEIMAN.COM> wrote:
>>>
>>> I support deferral - and substantial re-write. As you know there are *many* things missing from this report that we advocated -- or thrown into a remote corner of the "miscellaneous" section and unlikely to be visited or reviewed by any WG.  Reverse domain name hijacking -- something I wrote into the original UDRP - is now a not-infrequent finding of UDRP (hooray!)  It's trademark owner's bad faith and improper action and yet there is no penalty -- and it is time to impose one.  A Registrant engages in bad faith - loss of domain name; a large brand owner - nothing. Hmm...
>>>
>>> But Amr, just because something should be heard does not mean it has to be heard now. It is a zero sum game and the Whois2 is already rolling. We cannot create more people or time.  We can only create a flow of work that does not a) kill or b) drive away any and everyone with the skills to work on it.
>>>
>>> Best,
>>> Kathy
>>>
>>> On 1/19/2016 7:52 AM, Amr Elsadr wrote:
>>>> Hi Kathy,
>>>>
>>>> Thank you very much for this. I very much agree with you; that the final issue report is poorly balanced in favour of trademark concerns including the two-phased approach. Apart from that there are some issues that the NCSG asked to be included in the final report that (as far as I can tell) are not in it or the draft charter. Examples include reverse domain name hijacking not being included in the draft charter, expanding roles of RPM providers beyond the scope of their work?, and others.
>>>>
>>>> I will, however, try to answer your question on why I submitted this motion. From a procedural perspective, it doesn?t really matter who submits the motion. Issue reports (preliminary and final) are prepped by staff, and need to be reviewed by council. The GNSO operating procedures describes the rules and timelines concerning how these are submitted and managed, and it?s all pretty straight forward. Staff prepared the final issues report for this PDP only a couple of hours before the deadline to submit motions for the January 21st council meeting. They needed a councillor to submit the motion so that the report may be formally considered, and they asked me. Procedurally, it didn?t strike me as a problem to agree. I did, however, make it clear on the council email list that the report was delivered very close to the deadline, and that I had not had a chance to review it prior to submitting the motion, so submitting the motion did not indicate any support for it, but rather agreeing to a staff request. I also immediately forwarded the email and report to both you and Tapani to make sure you knew this was happening. I?m glad I did that. :)
>>>>
>>>> I look forward to discussing this motion on today?s NCSG call, along with other important motions. My suggestion would be for one of our councillors to request a deferral of this motion (as opposed to holding a vote on it), and pointing out what we feel is problematic with it, particularly the draft charter. My hope is that we can give staff clear instructions on what needs to be amended in the report/charter before it comes up for another vote.
>>>>
>>>> On the other hand, I am divided on whether or not it is reasonable to indefinitely delay this PDP. I appreciate the limited amount of time our members have to volunteer on this and other PDPs and CCWGs. It certainly seems impractical to me to delay this until after the new gTLDs subsequent rounds and WHOIS2 PDPs are done. Apart from the UDRP, the other RPMs are not consensus policy developed by the community, but rather forced on us by staff. This (IMHO) always needed to change. Seems to me like this is especially necessary now that a subsequent round of new gTLDs is being discussed.
>>>>
>>>> Those are some of my thoughts, and I would certainly appreciate hearing more on this.
>>>>
>>>> Thanks again, Kathy.
>>>>
>>>> Amr
>>>>
>>>>> On Jan 19, 2016, at 4:59 AM, Kathy Kleiman <kathy at KATHYKLEIMAN.COM> wrote:
>>>>>
>>>>> Amr and All Councilors,
>>>>> I wanted to expand on this. By separating out the UDRP and New gTLD Rights Protection Mechanisms -- and making the New gTLD Protection Mechanisms FIRST -- Staff and the IPC are ensuring that basic facts will not be heard in the right order. IPC and Staff want a stronger URS. The fact is that *even with the advent of many new gTLDs i n 2015,* the UDRP filings went down - and there were not too many URS filings either.
>>>>>
>>>>> By hearing these issues in isolation, with New gTLDs first, there will be a lot of whining about the need for a faster and more effective URS (which NCSG successfully criticized as "Accuse you lose" because it was initially so one-sided) and reforms to the URS will be forced without the full context of the UDRP.
>>>>>
>>>>> Truly, if the world were coming to an end with New gTLDs (as the IPC assured us it would be), then the UDRP filings would have gone up, not down.
>>>>>
>>>>> I think we should be voting No on this RPM Issues Report. I hope you will.
>>>>>
>>>>> Kathy
>>>>>
>>>>> On 1/18/2016 2:13 PM, Kathy Kleiman wrote:
>>>>>> Hi Amr,
>>>>>> I think we talked about this some time ago, but I don't understand why we are making the motion for the RPMs PDP initiation? Our NCSG comments said very clearly that the two-phases proposed by the IPC were Not valid - that there was no way we should review New gTLD protections because a) still pretty early and b) UDRP is the trunk of the tree. Why should we evaluate the branches when we need to evaluate the health of the entire tree?   Why is the world are we, the NCSG, introducing this motion?
>>>>>>
>>>>>> On other thoughts, the idea of RPM, Whois2 and New gTLD PDPs going on at the same time is a nightmare. Every other stakeholder group has professionals -- people who are paid by their companies or clients to participate in these proceedings. We don't and yet we are the ones who are called on to do the drafting, reviewing completely one-sided and self-serving proposals and organize oppositions.
>>>>>>
>>>>>> There must be something that you, Amr and our other Councilors, can do to slow this train down. If not, some of us are going to have to jump off...
>>>>>>
>>>>>> Best regards,
>>>>>> Kathy
>>>