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

Tue Mar 1 05:08:19 EET 2016

Great summary Amr, and thanks for taking on the fight!  It does seem a 
little hopeless.  Maybe I am just depressed by the frost-bite warnings 
we are getting here on the Eve of March 1....
cheers Steph

On 2016-02-29 9:53, Amr Elsadr wrote:
> 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 <mailto: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 <mailto:council at gnso.icann.org>" 
>> <council at gnso.icann.org <mailto:council at gnso.icann.org>>
>> *Cc: *"Mary Wong (mary.wong at icann.org <mailto:mary.wong at icann.org>)" 
>> <mary.wong at icann.org <mailto: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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