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

["Marilyn Cade " <marilynscade@xxxxxxxxxxx>]

Thanks, Bill. I am a little mystified about how the motions approach developed 
since it was after my tour of duty as a Councilor, and before we added the 
Oolicy Staff. . It is very UN like in language, as well. It was probably an 
evolutionary improvement to document the flow and history of what has 
transpired since the Council now has a very busy and detailed working agenda, 
that typically takes months per topic, and history of actions is important. 
Zahid has been on Council for several years-- he may recall the history on how 
the formalized motions came about. We had motions, but wrote them ourselves as 
councilors, so they tended to be more functional. Still, documenting linkages 
and supporting materials for a motion is important. 

Still, I do have sympathy for your view. 
Sent via BlackBerry by AT&T

-----Original Message-----
From: Smith  Bill <bill.smith@xxxxxxxxxxxxxx>
Date: Fri, 11 Nov 2011 17:31:20 
To: <bc-gnso@xxxxxxxxx>
Subject: Re: [bc-gnso] UDRP Motions (competing) for GNSO Council call

As the resident renegade/cynic, I'll ask:
 
 Why do we accept and perpetuate a system that requires resolutions to 
establish a group that will develop a charter whose group-specific content is 
almost certainly shorter than the resolution to create the group? Presumably 
this charter must then go back to the group (Council) that chartered the first 
group (Drafting Team) for approval, and no doubt requires a similarly lengthy 
resolution to establish the group to perform whatever work was originally 
desired.
 
 It seems to me that we're process heavy and in a manner that is not bottoms-up.
 
 On Nov 10, 2011, at 3:49 PM, Phil Corwin 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&lt;http://www.jamilandjamil.com 
<http://www.jamilandjamil.com&lt;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]&lt;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&lt;http://www.jamilandjamil.com/ 
<http://www.jamilandjamil.com&lt;http://www.jamilandjamil.com/> >
 
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