[PC-NCSG] Fwd: FW: NCSG Meeting with the Board : Topics (Constituency Day)

[Kathy Kleiman]

Hi Tapani,
Tx for the time until end of day. I would like to introduce another 
important and timely question for our NCSG/Board meeting. It is one that 
come from Mitch Stoltz and myself. Mitch is a Senior Staff Attorney at 
the Electronic Frontier Foundation. He works on cases where free speech 
and innovation collide with copyright and trademark law.  For the first 
time, he will be joining us at an ICANN meeting in India!

Currently, MItch is working on concerns about "shadow regulation." 
Shadow regulation is the "secretive web of backroom agreements between 
companies that seek to control our behavior online." (See Fair 
Processes, Better Outcomes, 
https://www.eff.org/deeplinks/2016/09/fair-processes-better-outcomes)

We have just such a shadow regulation here in our gTLD Community. 
Earlier this year, Donuts signed a deal with the MPAA to take down not 
just content, /but entire domain names/, of copyright owners /accused/ 
by the MPAA of violating their copyrights. Although the concept, MPAA as 
a "trusted notifier" was taken from the US Digital Millennium Copyright 
Act, it was taken without any of its fairness, balance, protections and 
appeals. Basically, it's another "accuse you lose" scenario (for anyone 
who remembers the first version of Uniform Rapid Suspension, before we 
fought for huge changes). And Donuts is marketing this agreement as a 
"Best Practice." :-(

Mitch can be with us for the NCSG-Board meeting and we propose the 
following question set:
     ==>  Does the Board continue to agree with Fadi Chehade's statement 
of Summer 2015 that ICANN does not policy content, 
https://www.icann.org/news/blog/icann-is-not-the-internet-content-police.  
Does the Board share our concerns that arrangements like the MPAA-Donuts 
agreement are deeply inappropriate for the Domain Name System?

Likely response:
I think we may find relief from the Board in our asking this question. 
As you may have seen, the IPC leadership is banging on the Board to 
enforce copyright laws through ICANN compliance (See ICANN 
Correspondence).  Steve Crocker has been writing back forcefully to say 
this is not within ICANN's scope and purview.

I think our questions will a) support the effort of the ICANN Board to 
push back on the IPC on its push, b) and share the horrors of the 
Donuts-MPAA private agreement with those members of the Board who have 
not yet heard about it.

Best and tx,
Kathy


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