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

[Edward Morris]

Thanks Kathy.
  
 As some may recall, at our last PC meeting we set up a small group (consisting of Kathy, Stefania, Anna and myself, with an intention to expand membership once we did some initial organisation and exploration) to begin to examine private agreements like the MPAA-Donuts agreement that threaten in so many ways to usurp the bottom up multistakeholder process (BUMP). It would be nice to have the time to examine things in a more leisurely fashion, to developed a more reasoned approach and comprehensive strategy for this issue, before acting and in time we will. Things are moving too fast, though, for us to act in complete leisure. Kathy's proposal has merit and my full support. 
  
 ?A quick look at the agenda for ICANN 57 shows the scheduling of some rather unusual meetings: 
  
 Saturday 12:15-13:45  Healthy Domains Initiative Committee Meeting 
 Saturday 13:45-15:00  Healthy Domains Initiative Update 
 ?Sunday   15:15-16:15  Domain Name Association Marketing Committee Meeting 
 Tuesday  12:15-13:30  Domain Name Associaton Reg-Ops Committee Meeting  
  
 All but one of these meetings are closed to the public. 
  
 Healthy Domains is an initiative of the Domain Name Association, a private industry trade association. At a time when recognised ICANN groups are having trouble getting Meeting time and space what is a private trade association doing meeting in ICANN space at ICANN's expense during ICANN events pushing private objectives? A marketing committee meeting of a private association on ICANN's tab? I hope our Stakeholder Group and Constituency Chairs and representatives can make inquiries to discover: 1) under whose authority these meetings were booked, 2) whether, unlikely,  the DNA charged for use of ICANN's space and, if not, 3) how NCSG's private  associations may take advantage of ICANN's hospitality and convention space at future meetings. 
  
 The DNA has shown great smarts in how they have pushed Healthy Domains. Many in this community, including some Board members, are under the impression that Healthy Domains are a result of the bottom up multi-stakeholder process. Not. Of course, if the organisation promoting Healthy Domains is getting time to push their private agenda in ICANN meetings using ICANN resources the confusion is a bit more explicable. We're going to have to fight this on a number of fronts. Things are going to get more challenging when Allen Grogan leaves ICANN at the end of the year. Allen has been a leader amongst the ICANN staff in resisting attempts to get ICANN involved in content control.  
  
 All of this is why Kathy's question is so timely. Agreements like the MPAA-Donuts accord are not yet commonplace, are not yet best practices. We need to sound the alarm now, we need to make the Board aware of the danger these types of agreements pose and arm them with the knowledge that these private agreements are just plain bad for ICANN and noncommercial registrants before they become commonplace.   
  
 The question Kathy has proposed is well structured, timely and will allow us to let the Board know that there is another perspective out there other than the ones Donuts and the Domain Name Association are pushing as industry "best practices". A perspective that includes the recognition of fair use and due process, two elements lacking in the MPAA-Donuts agreement and in much of what the Domain Names Association is promoting. I hope we can include Kathy's proposed question  in the group of questions we will be asking Board members at ICANN 57. 
  
 Kind Regards, 
  
 Ed Morris 
  
  
  
  
  

----------------------------------------
 From: "Kathy Kleiman" <kathy at kathykleiman.com>
Sent: Thursday, October 20, 2016 11:17 PM
To: pc-ncsg at ipjustice.org
Cc: mitch at eff.org
Subject: Re: [PC-NCSG] Fwd: FW: NCSG Meeting with the Board : Topics (Constituency Day)   
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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