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

Tue Oct 25 01:07:37 EEST 2016

Avri,

If we did not know the history of this type of Donuts-MPAA Agreement, 
but we do. It's SOPA via the backdoor. Literally, we (in the US) fought 
SOPA and defeated the MPAA and RIAA from getting provisions that would 
have led to the misuse of the DNS and the takedown of the wide variety 
of speech and content for which a domain name is used -- including 
webpages, listservs, emails, more.

So when MPAA and RIAA went back to Congress, lawmakers and senior staff 
told them to make "private agreements." These private agreements are now 
being negotiated a) without multi-stakeholder groups being present, b) 
without due process being considered, and c) without fairness or 
balance.  EFF, as Ed pointed out, has launched a campaign against Shadow 
Regulation such as this -- https://www.eff.org/issues/shadow-regulation

If the purpose of this SG is to be concerned about noncommercial speech 
online -- a purpose we have just discussed at length -- then we have to 
be very, very concerned about anything that would take that speech down 
without due process, without appeal, without fairness and balance.

I think we have a strong obligation to speak out...

Best, Kathy

On 10/23/2016 3:40 PM, avri doria wrote:
> Kathy,
>
> Not if it is pre-agreed in a contract and fully consented to in advance.
>
> With there being a wide choice of domain names, people have a choice.
>
> But I agree it is not what I prefer on the internet, and should not, as
> Wendy says become best practice. And also it is critical that the full
> level of this agreement be understood and consented to. That seems to be
> where efforts should lie.
>
> But I see no basis for its prohibition by ICANN.
>
> Avri
>
>
>
> On 23-Oct-16 13:05, Kathy Kleiman wrote:
>> Avri,
>>
>> When content is taken down without due process, without legal grounds
>> and with private rules created without openness, transparency,
>> inclusion and balance -- that's censorship. I would hate to see the
>> Internet move in that direction.
>>
>> Best, Kathy
>>
>>
>> On 10/23/2016 12:33 PM, avri doria wrote:
>>> Hi,
>>>
>>> I agree that we do not wish to see these become best practices, but I do
>>> not not see any reason why they should, or could, be prohibited.
>>>
>>> What I think is most important is that any registrant know before
>>> engaging a sld in one of these names, that this is the condition they
>>> will be governed by.
>>>
>>> avri
>>>
>>> (note SOI, I do have a small research contract I do for Donuts, but it
>>> has nothing to do with this policy of theirs and I have no binding to
>>> support their policy causes, I have never discussed this issue with
>>> Donuts.)
>>>
>>> On 23-Oct-16 11:10, Wendy Seltzer wrote:
>>>> Thanks for raising this, Kathy and Mitch. It is hugely important that
>>>> these takedowns not become part of ICANN's common framework or "best
>>>> practices" for registries or registrars.
>>>>
>>>> --Wendy
>>>>
>>>> On October 20, 2016 3:17:40 PM PDT, Kathy Kleiman
>>>> <kathy at kathykleiman.com> wrote:
>>>>> 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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