[PC-NCSG] Fwd: [council] Updated Motion and Charter for RPM Review WG

[Amr Elsadr]

Hi,

Following up on the topic of the RPMs review again. Fellow Councillors will have seen this email from Phil proposing a motion to adopt a charter for the PDP WG.

Negotiations on the Council sub-team did not turn out well at all, as you will have gathered. As Phil reports, the sub-team did not achieve consensus, and the charter remains unchanged in that regard. Let me try to convey my perspective of what?s going on.

First, we have to assume that we are the only group within the GNSO that is not in a rush to get a new round of new gTLDs going. The contracted parties, naturally, have an interest in doing this, and the BC and IPC seem to have an interest in applications for new brand gTLDs. There is concern among all of them that a review of the UDRP has the potential to take years, which would mean if that goes first, it will delay the process for a subsequent round of new gTLDs. The dependancy of the PDP for the new gTLDs subsequent procedures on this one?s review of the RPMs is the major concern.

During the sub-team calls, I?ve had to defend the NCSG?s desire of a UDRP review preceding the review of the RPMs for the new gTLD a number of times, but have also always tried to keep the discussion on the process to review input, rather than the substantive issue. My argument was that the NCSG input hadn?t received the due consideration by the community, as it was not part of the preliminary issues report, which was subject to public comment. We used to have reply periods to public comments, but that is not the case any more.

At this point, the NCSG input has been considered by:

1. Policy staff, in their review of the public comments, and preparation of the final issues report. Staff did note that other options for methods to tackle this PDP were provided, but recommended to proceed with the current two-phased approach. Apart from our input, there was input from the WIPO and INTA recommending that no review of the UDRP be conducted at all, and that the GNSO should limit its review to the new gTLD RPMs.

2. A sub-team of the GNSO Council limited to councillors from the NCSG, IPC and BC.

This is the language I finally proposed as alternative language in the charter under ?Mission and Scope?:

> This PDP Working Group is being chartered to conduct a review of all RPMs in all gTLDs in two phases: Phase One will focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. However, because additional approaches beyond those initially noted in the Preliminary Issue Report had been suggested as part of public comments to that report, the Working Group is requested to perform the following task during the development of its initial Work Plan: consider whether or not reversing Phases One and Two, such that the review of the UDRP takes place during Phase One, is a preferable approach. If there is consensus (as determined by the Working Group chair(s) in consultation with the GNSO Council liaison) to proceed in this manner, the Working Group shall submit a request to amend its Charter to the GNSO Council, who shall consider whether or not to grant the request in light of information it considers relevant, including the progress of the Competition, Consumer Trust and Consumer Choice (CCT) Review Team and the GNSO PDP on New gTLD Subsequent Procedures. In the absence of consensus to change the two-phased approach, the Working Group shall proceed with the two-phased approach already in place. 

This was basically an attempt of mine to ask for the WG to consider the NCSG input, while respecting the input provided by other groups. After considerable debate that was going nowhere, I was hoping this would make the proposal less unappealing to the BC and IPC. They didn?t budge. I suspect that CPH has no interest in budging either. A repeated argument by the IPC was that the NCSG input was being considered by the GNSO Council, and no further consideration is necessary. I don?t agree with this.

What we can do at this point is suggest changes to the charter to the GNSO Council in response to Phil?s motion (below). What would happen then is that the Council would vote on the two versions of the charter (the one we suggest vs. the current draft), with a simple majority of each house required to support either one. I don?t believe we would win this vote. As I said, unless I?m missing something, we have no support within the GNSO on this.

Following this vote, a vote in response to the motion to adopt the charter would take place requiring a very low voting threshold to pass (1/3 of both houses, or 2/3 of one house).

I am certainly open to suggestion on how to proceed, but now the ball is in the full Council?s court. My suggestion is to proceed with suggesting the language I had suggested to the sub-team. I don?t believe we will manage to get this passed, but it is an option. Furthermore, to be honest, if we do somehow pass this on Council, I don?t believe the PDP WG will agree to making the charter change that we are asking for after it is discussed at that level. I?m offering what I believe to be a realistic assessment following about a month of debating this issue.

Since this discussion began, we did get two minor wins:

1. We moved the list of issues to be discussed by the WG (including NCSG?s inputs in our comment) from an annex of the issue report to the charter itself. This was certainly a good thing, although possibly not crucial. The NCSG input was captured accurately in the staff report, and would have been in scope of the PDP under the first scenario, although it may have taken a little bit of a debate to have it considered.

2. This language was added to the background of the PDP in the charter to stress that the purpose of the PDP is not limited to the protection of trademarks:

As a result of the New gTLD Program, several new rights protection mechanisms (RPMs) were developed to mitigate potential risks and costs to trademark rights holders that could arise in the expansion of the gTLD namespace, which included certain safeguards to protect registrants who engage in legitimate uses of domain names. <>

Again?, this is a good thing, but given how the STI group?s final recommendations are phrased, we would have (possibly after another debate on the WG) this part pertaining to protection of legitimate registrations also be given its due respect.

The one change that was truly significant (reversal of the two phases) is the one we didn?t get.

I apologize for the length of this email, but thought to try to keep you all as informed as possible on what?s going on.

Would very much welcome the thoughts of others.

Thanks.

Amr

> Begin forwarded message:
> 
> From: Phil Corwin <psc at vlaw-dc.com>
> Subject: [council] Updated Motion and Charter for RPM Review WG
> Date: February 29, 2016 at 2:32:50 AM GMT+2
> To: "council at gnso.icann.org" <council at gnso.icann.org>
> Cc: "Mary Wong (mary.wong at icann.org)" <mary.wong at icann.org>
> 
> Councilors:
>  
> On behalf of the subgroup which met twice this past week to discuss the best way to conduct a PDP on the review of all RPMs in all gTLDs, I am pleased to forward for your consideration updated versions of the Motion and draft Charter for same. I am hereby proposing them in order to meet the deadline for items to be considered by the Council in Marrakech.
>  
> The Motion has been altered since the version that we adopted at the last Council meeting to include a reference to our subgroup.
>  
> The Charter has been altered to include a new clause in the second sentence of the first paragraph under ?Background?, as follows (new language in Bold):
>  
> As a result of the New gTLD Program, several new rights protection mechanisms (RPMs) were developed to mitigate potential risks and costs to trademark rights holders that could arise in the expansion of the gTLD namespace, which included certain safeguards to protect registrants who engage in legitimate uses of domain names: the Uniform Rapid Suspension System (URS); the Trademark Clearinghouse (TMCH) and the associated availability through the TMCH of Sunrise periods and the Trademark Claims notification service; and the Post-Delegation Dispute Resolution Procedures (PDDRPs).
>  
> That language was offered by Amr and was deemed non-controversial by members of the subgroup.
>  
> The subgroup was unable to reach consensus to include draft Charter language proposed by Amr to subsection (a) of the Mission and Scope portion of the Charter. That language would have delegated to the WG the decision as to whether the two-phased approach should start first with review of new gTLD RPMs or of the UDRP. However, there was general consensus among subgroup members that, as the rationale for such delegation of decision-making was that some public comments had taken positions not included within the three staff options contained in the Preliminary Issues Report, the WG should, if Council does not decide scope and priorities, be free to consider any public comment suggestions beyond the staff options ? which would include the comments of WIPO and INTA that the UDRP should not undergo any review at all.
>  
> It will be up to Amr and other supporters of altering the Charter to decide whether they wish to offer such a decisional delegation amendment to the draft Charter when we meet in Marrakech.
>  
> Let me know if any of you have questions.
>  
> Safe travel to Marrakech, and best regards,
> Philip
>  
>  
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
> 202-559-8750/Fax
> 202-255-6172/cell
>  
> Twitter: @VlawDC
>  
> "Luck is the residue of design" -- Branch Rickey
>  

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