[bc-gnso] RE: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)

[Phil Corwin <psc@xxxxxxxxxxx>]

I have no objection to the proposed draft insofar as it relates to COI.

However, I think there is a bigger process question - are we, the BC,  for or 
against various constituencies being able to reopen aspects of the new gTLD 
program at this point in time, between approval in Singapore and opening of the 
application window?

There is a big difference between focusing in on implementation details (as is 
being done within the IAG on the TM Clearinghouse) and proposing significant 
substantive changes to the Applicant Guidebook and registry contract 
requirements, such as what the Regy Constituency has done by proposing a COF to 
substitute for the COI. This continued operational churning of the new gTLD 
program (as well as the political churning we are likely to see at this coming 
week's Senate hearing) create nothing but uncertainty for potential applicants 
being asked to risk significant amounts of capital to enter into a process that 
may not provide them with an answer for years.

But, back to my main point, is the BC against reopening the process at this 
time or are we saying that since the Regy has opened Pandora's box we feel 
empowered to do so as well? While ICANN has stated that improvements in the 
requirements will be made as the program develops, there has been zero 
experience with new gTLDs to justify further tinkering at this point in time.

In that regard, I take note of this proposed portion of the new BC position -

The BC further has identified several inadequacies in the protection and 
safeguards for existing registrants, and users, and will submit, again, a 
request for improvements and changes in the trademark protection mechanisms, 
before the launch of the new gTLD Program.
 Maybe I missed it, but I don't recall any discussion among BC members to take 
such action. If those proposed "improvements" include lowering the burden of 
proof for a URS complaint and allowing transfer of the domain to the 
complainant at the end of its registration period, making URS the functional 
equivalent of UDRP, I will be objecting at every step in the process -- 
especially since NAF and WIPO have said that there is no way they can do a URS 
at the proposed pricing of $300 (for complaints covering multiple domain 
names), and Kurt Pritz concede in Dakar that ICANN was having difficulty 
finding qualified arbitrators and would have to revisit that.
But the broader point is that you can only implement a settled Guidebook, not a 
moving target, and that new gTLD applicants deserve some program certainty at 
this critical juncture.


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] On Behalf Of 
Steve DelBianco
Sent: Friday, December 02, 2011 10:45 PM
To: 'Bc GNSO list '
Subject: [bc-gnso] FW: for expedited review: draft BC comment on registry 
proposal for Continuity Operations Instrument (COI)

Last night, Marilyn Cade submitted extensive edits to our draft comments on the 
Continuity of Operations Fund proposal from the Registries.   See second 
attachment and Marilyn's summary of her comments below.

Per the plan I sent this week, we will now allow 7 additional days of review 
time, with a target date to submit by next Friday 9-Dec.   That would make us 
just one week late for ICANN's comment deadline.

Rapporteur Jon Nevett will take first look at Marilyn's edits and will 
circulate a new version over the weekend.

From: marilynscade@xxxxxxxxxxx<mailto:marilynscade@xxxxxxxxxxx>
To: bcprivate@xxxxxxxxx<mailto:bcprivate@xxxxxxxxx>
Subject: IMPORTANT: SEE PROPOSED CHANGES/EDITS IN THE BC DRAFT: for expedited 
review: draft BC comment on registry proposal for Continuity Operations 
Instrument (COI)
Date: Thu, 1 Dec 2011 10:49:10 -0500

I propose several changes  and an enhancement about why the BC cares about this 
topic, and also note that we would like similar opportunity to achieve changes 
in the new gTLD program -- regarding IPR protections. I will send a separate 
email about that topic, based on discussions with Steve, Sarah, and others 
about the existing call for improvements in that area. [Separate email]. My 
comments are as an individual member of the BC on this BC position statement.

The changes I propose to this draft are consistent with BC's positions 
regarding priority of protecting registrants and users.

See 2, where I added ICANN's responsibiilty to act in the public interest.
3. I explicitly stated that we do not support the Regy proposal. That was 
missing from our statement.
I also said that improvements could be made in the COI. See 4.
5. I also added in that the BC fears a high risk of failure of some of the new 
gTLDs.
6. I added that we expect there to be appropriate legal agreements in the 
contracts that would allow for the protection of registered names.

I deleted the old 7, which seemed to say on the one hand, and then on the other 
hand. The purpose of this statement is to either support the Registry proposal, 
or oppose it. I oppose it, for the reasons I noted in my edits. I do think that 
COI can be improved, especially as it regards 'brands' gTLDs.

I was also concerned in reading the transcript of the actual panel in Dakar -- 
I was not able to attend in person -- the panel looked heavily stacked toward 
supporters of the new gTLD program.  However, the important news may be that if 
ICANN will accept suggested changes form a single constituency, we should be 
aggressively be addressing our call for changes in Trademark protection.

Marilyn Cade




From: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>
Date: Wed, 30 Nov 2011 18:29:48 -0500
To: 'Bc GNSO list ' <bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: FW: for expedited review: draft BC comment on registry proposal for 
Continuity Operations Instrument (COI)

Thanks to all for engaging in the email discussion over these comments.

However, I don't think we've seen any specific edits on the draft circulated 
last Tuesday 22-Nov.

Ron and Phil proposed a more extensive critique of the Guidebook's COI plan, 
but the scope of this comment is reacting to the Registry proposal for an 
alternative mechanism (COF).  I would strongly suggest that Ron and Phil 
individually submit their concerns to ICANN, of course.

Mike Palage advised us to be careful about conflicts of interest, so I propose 
a simple way to do this quickly and transparently:

If any BC member objects to the BC filing the attached draft comment , please 
REPLY ALL and indicate your objection and reason.   If any member objections 
are noted by midnight UTC on 1-Dec, we will extend the process and ask the 
membership to vote on alternate versions of BC comments.   This would mean our 
comments are submitted late, but might still be considered.

If no objections are noted we will post the attached draft to ICANN on the 
closing date of 2-Dec.

Thanks again for engaging in this discussion.

--Steve
(vice chair for policy coordination)


From: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>
Date: Tue, 22 Nov 2011 19:04:17 -0500
To: "'bc-GNSO@xxxxxxxxx<mailto:'bc-GNSO@xxxxxxxxx> GNSO list'" 
<bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: for expedited review: draft BC comment on registry proposal for 
Continuity Operations Instrument (COI)

Per discussion in Dakar and on our 10-Nov member call, here is a draft of BC 
comments on the a proposed alternative to the for Continuity Operations 
Instrument in the new gTLD Program.

Jon Nevett prepared this draft.

This comment period and docs are described 
here<https://www.icann.org/en/public-comment/rysg-proposal-cof-17oct11-en.htm>.

These comments are due 2-Dec, giving us 10 days for review and approval.   This 
is less than the 14-day period required in our charter, so I am requesting an 
expedited review period.  If any member has substantive objections to the 
expedited review, we can go to 14 days and submit our comments after the ICANN 
due date.

All BC members are invited to suggest edits.     Please use track changes and 
circulate to BC list.

Thanks again to Jon for taking the lead on this.


Steve DelBianco
vice chair for policy coordination, BC
________________________________

No virus found in this message.
Checked by AVG - www.avg.com<http://www.avg.com>
Version: 10.0.1411 / Virus Database: 2102/4052 - Release Date: 12/02/11