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

Sat Mar 5 01:30:02 EET 2016

Totally agree, great work Amr!
Steph

On 2016-03-03 12:14, Kathy Kleiman wrote:
> Hi Amr, I apologize for my belated response to this important email 
> message. As you know, although this week is supposed to be "quiet" as 
> people are traveling, the RDS WG moved forward on a draft work plan 
> that needs significant changes and the response took a lot of time and 
> effort.
>
> As I read below, the only thing I can say now is how grateful I am 
> that you undertook the challenge.  Against the odds, you fought hard 
> for our rights and for the balance this draft charter needs.
>
> From my perspective, it sounds like you moved some mountains. Revising 
> and expanding the Mission and Scope is huge! Expanding the purpose of 
> work of the WG is monumental. Moving our concerns from appendices to 
> main text changes everything!
>
> I will read more closely on the plane, but before I departed, I wanted 
> to share my heartfelt thanks for  putting yourself in an 
> almost-impossible position -- and coming out ahead :-)!!!
>
> Best,
> Kathy
>
> On 2/29/2016 9:53 AM, 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>
>>> *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 
>>> <mailto:council at gnso.icann.org>>
>>> *Cc: *"Mary Wong (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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