Re: [bc-gnso] UDRP Motions (competing) for GNSO Council call

["Smith, Bill" <bill.smith@xxxxxxxxxxxxxx>]

+1

Given comments made in the board/GAC open session in Dakar, it would appear 
that there are a number of open, operational issues related to the new gTLD 
process. Opening UDRP at this time would further complicate matters. 

On Nov 11, 2011, at 8:32 AM, Frederick Felman wrote:

> 
> MarkMonitor disagree, we support Jeff's proposal.
> 
> The majority of large business who are our customers tell us that they enjoy 
> the predictability of this tried and tested mechanism. Furthermore, with the 
> dns undergoing so much change they prefer that udrp remains stable and 
> predictable while the community evaluates the effectiveness of proposed new 
> rights protection mechanisms.
> 
> Sent from my mobile +1(415)606-3733
> 
> (please excuse any content I might blame on apple's absurd and comical 
> autocorrect  including but not limited to typos)
> 
> On Nov 10, 2011, at 3:54 PM, "Phil Corwin" 
> <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>> wrote:
> 
> I’m in general agreement with the views that Mike stated. While I believe 
> there’s a middle ground - of the two competing Resolutions, Mary’s is 
> preferable
> 
> 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
> 
> "Luck is the residue of design" -- Branch Rickey
> 
> From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
> [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Zahid Jamil
> Sent: Thursday, November 10, 2011 2:33 PM
> To: Mike Rodenbaugh; BC Secretariat
> Subject: Re: [bc-gnso] UDRP Motions (competing) for GNSO Council call
> 
> Thanks for this. Can I share these thoughts with Steve and an ongoing 
> discussion about this with CSG Councillors?
> 
> 
> Sincerely,
> 
> Zahid Jamil
> Barrister-at-law
> Jamil & Jamil
> Barristers-at-law
> 219-221 Central Hotel Annexe
> Merewether Road, Karachi. Pakistan
> Cell: +923008238230
> Tel: +92 21 5680760 / 5685276 / 5655025
> Fax: +92 21 5655026
> www.jamilandjamil.com<http://www.jamilandjamil.com>
> 
> 
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> From: <icann@xxxxxxxxxxxxxx<mailto:icann@xxxxxxxxxxxxxx>>
> Sender: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx>
> Date: Thu, 10 Nov 2011 11:17:23 -0800
> To: <bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
> ReplyTo: <mike@xxxxxxxxxxxxxx<mailto:mike@xxxxxxxxxxxxxx>>
> Subject: RE: [bc-gnso] UDRP Motions (competing) for GNSO Council call
> 
> Thanks Zahid.  Curious to hear how the discussion went on the BC call this 
> morning on this issue.
> 
> I have a feeling I may be a fairly lone voice, but fwiw, I support Mary’s 
> motion over Jeff’s.  Indeed it was a unanimous recommendation of the RAP-WG, 
> including a bunch of IP attorneys and reps (including me), to do a review of 
> the UDRP since it has been in place for ten years and has not been all that 
> effective as a deterrent against cybersquatting.  Waiting another 2.5 years, 
> or longer if the newTLD program is stalled, is not going to help anything or 
> anyone other than IP attorneys who charge many thousands of dollars to file 
> or defend UDRP cases (again, including me); … oh, and also the bad guys who 
> abuse the DNS and reputable brands with virtually no trouble and no 
> consequence.
> 
> Also I am not holding my breath waiting for URS implementation, as it may 
> never happen and even if it does come into some form or another, it is 
> unlikely to be used much if at all, particularly in just the first 18 mos. 
> after the first new TLD.  I fail to see how it will impact a review of the 
> decade-old UDRP in any way whatsoever.
> 
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax: +1.415.738.8087
> http://rodenbaugh.com
> 
> From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
> [mailto:owner-bc-gnso@xxxxxxxxx]<mailto:[mailto:owner-bc-gnso@xxxxxxxxx]> On 
> Behalf Of Zahid Jamil
> Sent: Thursday, November 10, 2011 7:19 AM
> To: bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>
> Subject: [bc-gnso] UDRP Motions (competing) for GNSO Council call
> 
> Dear BC Members,
> 
> Here are two competing motions that have recently been posted to the Council 
> list for inclusion in the next GNSO Council call:
> 
> 
> ROPOSED MOTION ON REVIEW OF THE UDRP
> 
> Made by: Mary Wong (Non-Commercial SG)
> 
> Seconded by:
> 
>     WHEREAS, on 3 February 2011 the GNSO Council adopted a resolution 
> requesting an Issue Report on the current state of the Uniform Dispute 
> Resolution Policy (UDRP) from ICANN staff, to include consideration of: (1) 
> how the UDRP has addressed the problem of cybersquatting to date, and any 
> insufficiencies/inequalities associated with the process; (2) whether the 
> definition of cybersquatting inherent within the existing UDRP language needs 
> to be reviewed or updated; and (3) suggestions for how a possible PDP on this 
> issue might be managed;
> 
>     WHEREAS, a Preliminary Issue Report was prepared by ICANN staff and 
> released for public comment from 27 May 2011 to 22 July 2011, for which 24 
> community comments were received;
> 
>     WHEREAS, further feedback was received in the form of responses by 
> various UDRP providers to a questionnaire issued by ICANN staff, a Webinar 
> conducted by ICANN staff, and two UDRP-related sessions held at the 41st 
> ICANN meeting in Singapore;
> 
>     WHEREAS, a Final Issue Report taking into account the community comments 
> and public feedback received was prepared by ICANN staff and published on 3 
> October 2011;
> 
>     WHEREAS, the Final Issue Report illustrates a diversity of views among 
> the ICANN community as to a number of UDRP-related issues, such as: (1) the 
> advisability of commencing a PDP at this time rather than when the new 
> rights-protection mechanisms (RPMs) mandated by the new gTLD program (e.g. 
> the Uniform Rapid Suspension (URS) system) are reviewed; (2) whether the 
> UDRP, although improved over time in terms of consistency of application and 
> streamlining of processes, is fair; and (3) other matters such as whether to 
> launch a PDP or form an experts’ panel, and whether more formal accreditation 
> or contracts between ICANN and UDRP providers is desirable;
> 
>     WHEREAS, a PDP provides the best means for assessing how to respond to 
> this diversity of views, in particular because a PDP can be designed to 
> address concerns about the size and complexity of the UDRP review, such as: 
> (1) by identifying short-term issues that can be worked on during the launch 
> of the new gTLD program and up to the first review of the URS, and other 
> issues that may require a longer time frame for work, including any 
> process-related or current implementation problems; (2) the formation of 
> Sub-Teams within the Working Group to handle different issues, tasks and 
> timelines; and (3) the division of the PDP into work phases, including 
> possible issues and time frames corresponding to the new gTLD program, if 
> appropriate;
> 
>     WHEREAS, the UDRP is the oldest GNSO policy that has yet to be reviewed, 
> and the further postponement of a PDP is unlikely to improve or correct some 
> of the flaws and problems with the current UDRP that were identified by the 
> ICANN community during the process of preparation of the Final Issue Report; 
> and
> 
>     WHEREAS, the issue of community bandwidth and resource allocation may not 
> diminish even after the launch of the new gTLD program and the new RPMs, and 
> reviewing such a complex policy as the UDRP together with the URS is likely 
> to exert even more pressure on community bandwidth and resources;
> 
>     Be it RESOLVED, that the GNSO Council approves the initiation of a PDP on 
> the UDRP and the establishment of a Working Group on UDRP Review;
> 
>     RESOLVED, further, that the drafting team that will be formed and charged 
> with developing a charter for the Working Group on UDRP Review take into 
> account the diverse possibilities for Working Group modalities and work 
> phasing; and
> 
>     RESOLVED, further, that the charter for the Working Group specifically 
> task the Working Group with considering: (1) related issues and 
> recommendations raised by the Post-Expiration Domain Name Recovery (PEDNR) 
> PDP Working Group, which were adopted by the GNSO Council as recommendations 
> to the ICANN Board of Directors at its meeting on 21 July 2011; and (2) 
> recommendation #7 of the IRTP Part B Working Group, which the GNSO Council at 
> its meeting on 22 June 2011 received and agreed to consider when it takes up 
> consideration of the Final Issue Report on the Current State of the UDRP; and 
> (3) such  other similar issues and recommendations as it considers 
> appropriate.
> ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
> 
> Competing Proposed Motion on the UDRP PDP
> 
> Made by: Jeff Neuman (Registries SG)
> 
> Seconded by:
> 
> Whereas the Registration Abuse Policies Working Group submitted a final 
> report the GNSO Council on 29 May 2010 (see 
> http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf), 
> recommending an issue report on the current state of the UDRP considering 
> both (a) How the UDRP has addressed the problem of cybersquatting to date, 
> and any insufficiencies/inequalities associated with the process, and (b) 
> Whether the definition of cybersquatting inherent within the existing UDRP 
> language needs to be reviewed or updated, and
> 
> Whereas, on February 3, 2011, the GNSO Council requested an Issues Report in 
> accordance with the recommendations of the Registration Abuse Policies 
> Working Group [LINK], and
> 
> Whereas, a Preliminary Issue Report was published on 27 May 2011 [LINK] and 
> series of webinars and workshops were held soliciting public comment to allow 
> for the ICANN community to provide feedback on the analysis and 
> recommendations contained therein, and
> 
> Whereas, a Final Issue Report was published on 3 October 2011 [LINK] in which 
> ICANN staff recommended the GNSO Council consider the “perspective of the 
> majority of the ICANN community, and the advice of the Government Advisory 
> Committee (GAC), and the At-Large Advisory Committee” and that “a PDP be 
> delayed until after the New gTLD Uniform Rapid Suspension System (URS) has 
> been in operation for at least eighteen months. . . [to] allow the policy 
> process to be informed by data regarding the effectiveness of the URS, which 
> was modeled on the UDRP, to address the problem of cybersquatting.”
> 
> RESOLVED, that the GNSO approved the initiation of a PDP and the 
> establishment of a Working Group on recommendation #7 of the IRTP Part B 
> Working Group concerning the requirement to lock a domain name subject to 
> UDRP proceedings, which the GNSO Council at its meeting on 22 June 2011 
> received and agreed to consider when it takes up consideration of the Final 
> Issue Report on the Current State of the UDRP.
> 
> RESOLVED further, the GNSO Council requests a new a new Issue Report on the 
> current state of all rights protection mechanisms implemented for both 
> existing and new gTLDs, including but not limited to, the UDRP and URS, 
> should be delivered to the GNSO Council by no later than eighteen (18) months 
> following the delegation and launch of the first new gTLD.
> 
> 
> Sincerely,
> 
> 
> Zahid Jamil
> Barrister-at-law
> Jamil & Jamil
> Barristers-at-law
> 219-221 Central Hotel Annexe
> Merewether Road, Karachi. Pakistan
> Cell: +923008238230
> Tel: +92 21 35680760 / 35685276 / 35655025
> Fax: +92 21 35655026
> www.jamilandjamil.com<http://www.jamilandjamil.com/>
> 
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