Re: [bc-gnso] Important to hear from members -- Reconfiguring the URS?

[Mike Roberts <mmr@xxxxxxxxxxxxxxxxx>]

Marilyn -

If the Board uses a "summit" to bypass the policy procedures detailed in the 
Bylaws, it risks being sued, etc., as it was in ICM case.

There are lots of things could stand improvement in the GNSO, but going around 
the Bylaws helps no one.

My recommendation is to take fairly strong stand asking for clear statement on 
how any summit would relate to policy making rules contained in By Laws.

- Mike



On May 7, 2012, at 9:35 AM, Marilyn Cade wrote:

> 
> Folks, give us some additional advice: Chris and I will be on budget calls 
> Tues and Wed. 
> 
> If NOT a Summit, or IF a Summit, what? 
> 
> We can't do much on substance on a budget camm, BUT we can say: high concern. 
> Didn't get it right on any front. NOT representative of parties most 
> affected. 
> Sent via BlackBerry by AT&T
> 
> -----Original Message-----
> From: Deutsch  Sarah B <sarah.b.deutsch@xxxxxxxxxxx>
> Date: Mon, 7 May 2012 15:40:50 
> To: <psc@xxxxxxxxxxx>; <marie.pattullo@xxxxxx>; 
> <Elisa.Cooper@xxxxxxxxxxxxxxx>; <marilynscade@xxxxxxxxxxx>; 
> <johnberard@xxxxxxx>; <sdelbianco@xxxxxxxxxxxxx>; <chris@xxxxxxxxxxxxx>; 
> <bc-gnso@xxxxxxxxx>
> Cc: <zahid@xxxxxxxxx>
> Subject: Re: [bc-gnso] RE: Important to hear from members -- Reconfiguring
> the URS?
> 
> I respect Phil and his diligent representation of his domainer clients on 
> this issue but I disagree. The UDRP's preponderance of evidence standard 
> combined with establishing the already high bar of bad faith registration, 
> use or trafficking in domain names has worked well. As someone with 
> experience suing cybersquatters, we can obtain "clear and convincing" 
> evidence usually only after months and sometimes years of litigation through 
> discovery. 
> 
> I agree with Anjali that business owners need to have a real remedy like the 
> do not sell list that prevents registrations of brands at the second level 
> along with a workable URS. The URS problems go way beyond the price. As 
> currently drafted, the process is fatally flawed at $300 and certainly will 
> not get better at a higher price. The issue goes needs a better and fuller 
> reevaluation process with broader participation, including from BC members.
> 
> 
> Sarah 
> 
> 
> Sarah B. Deutsch 
> Vice President & Associate General Counsel 
> Verizon Communications 
> Phone: 703-351-3044 
> Fax: 703-351-3670 
> sarah.b.deutsch@xxxxxxxxxxx
>  
> 
> From: Phil Corwin [mailto:psc@xxxxxxxxxxx] 
> Sent: Monday, May 07, 2012 09:33 AM
> To: Marie Pattullo <marie.pattullo@xxxxxx>; 'Elisa Cooper' 
> <Elisa.Cooper@xxxxxxxxxxxxxxx>; 'Marilyn Cade' <marilynscade@xxxxxxxxxxx>; 
> 'John Berard' <johnberard@xxxxxxx>; 'Steve Delbianco' 
> <sdelbianco@xxxxxxxxxxxxx>; 'Chris at Andalucia' <chris@xxxxxxxxxxxxx>; 'bc - 
> GNSO list' <bc-gnso@xxxxxxxxx> 
> Cc: 'Zahid Jamil' <zahid@xxxxxxxxx> 
> Subject: RE: [bc-gnso] RE: Important to hear from members -- Reconfiguring 
> the URS? 
>  
> 
> 
> Lowering the current burden of proof from "clear and convincing evidence" 
> (strong case) to the same as the UDRP, which is "preponderance of the 
> evidence" (which could be as low as 51/49) is not consistent with targeting  
> "clear cut cases of trade mark infringement". That would bring in "shades of 
> grey" cases that are not suitable for URS (intended for slam dunk, black and 
> white cases) and belong in UDRP. It would also convert URS from a supplement 
> to a substitute vis-à-vis UDRP. 
>   
> No competent examiner can properly weigh the evidence and provide adequate 
> due process in such a case for a fee in the $300 to $500 range, which 
> includes not just their compensation but the administrative costs of the 
> accredited provider. 
>   
>   
>   
> 
> 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 
>   
> Twitter: @VlawDC 
>   
> "Luck is the residue of design" -- Branch Rickey 
>   
> 
> 
> From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
> Marie Pattullo
> Sent: Monday, May 07, 2012 6:55 AM
> To: 'Elisa Cooper'; 'Marilyn Cade'; 'John Berard'; 'Steve Delbianco'; 'Chris 
> at Andalucia'; 'bc - GNSO list'
> Cc: 'Zahid Jamil'
> Subject: RE: [bc-gnso] RE: Important to hear from members -- Reconfiguring 
> the URS? 
>   
> Dear all, 
>   
> AIM's members believe that we definitely need the URS, and as soon as 
> possible. We need it to be a faster and cheaper solution than the UDRP, as 
> the URS was originally meant to be. We also very much support the lowering of 
> the burden of proof to deal with clear cut cases of trade mark infringement. 
>   
> Kind regards 
>   
> Marie 
>   
>   
> 
> 
> From: owner-bc-gnso@xxxxxxxxx <mailto:owner-bc-gnso@xxxxxxxxx>  
> [mailto:owner-bc-gnso@xxxxxxxxx] <mailto:[mailto:owner-bc-gnso@xxxxxxxxx]>  
> On Behalf Of Elisa Cooper
> Sent: lundi 7 mai 2012 4:59
> To: Marilyn Cade; John Berard; Steve Delbianco; Chris at Andalucia; bc - GNSO 
> list
> Cc: Zahid Jamil
> Subject: [bc-gnso] RE: Important to hear from members -- Reconfiguring the 
> URS? 
>   
> I agree - I think without really understanding what it is that they plan to 
> "reconfigure", it's difficult to know whether it's policy or implementation. 
>   
> If we wait and see, will it be too late? 
>   
> What kind of preemptive action could we take here? 
>   
> Best, 
> Elisa 
>   
> 
> 
> From: Marilyn Cade [mailto:marilynscade@xxxxxxxxxxx] 
> <mailto:[mailto:marilynscade@xxxxxxxxxxx]> 
> Sent: Friday, May 04, 2012 9:26 AM
> To: John Berard; Steve Delbianco; Chris at Andalucia; Elisa Cooper; bc - GNSO 
> list
> Cc: Zahid Jamil
> Subject: Important to hear from members -- Reconfiguring the URS? 
>   
> 
> Thanks, John, the discussion about URS needs to include the full BC. 
> 
>   
> 
> Many members have concerns, and I will note that that in the IRT last 
> approach, some BC members were excluded from participation, in favor of 
> others in the community, so we were not balanced in our BC participants. That 
> was a serious challenge within the BC.  
> 
>   
> 
> Whether a URS; WHAT URS, and HOW URS is a serious topic to more than a few BC 
> members. 
> 
>   
> 
> As to whether it is implementation/ and  how that discussion progresses, 
> versus if it is policy, is not clear, right now.  
> 
>   
> 
> What was the policy recommendation that created it?  
> 
> Should that policy recommendation be revised? 
> 
> Is this a change in how to implement a policy recommendation or a proposal to 
> change/modify a policy recommendation? 
> 
>   
> 
> Finally, Summit? What is that? What are the parameters? Did the 
> SO/AC/SG/Constituencies support such a budget proposal, and how and who would 
> be funded to participate? 
> 
>   
> 
> The IPC may love this; the BC and ISPCP need to study it.  
> 
>   
> 
> As to what is 'returned' to Council to provide policy advice on, this is a 
> seriously challenging area for us, I fully agree. 
> 
> We  do want to hear from our broader membership on first this particular 
> issue, and then we will talk further in the BC, probably in Prague, on 'what 
> is policy and what is implementation'. I think that we all need to develop 
> clarity on that for future.  
> 
>   
> 
> Whether the BC would take up a further policy clarity discussion on that 
> latter topic would then come from Steve after the BC members offer views.  
> 
>   
> 
> Short term: My view on this for now: I want to see a staff discussion doc 
> that explains the problems. Curtailing the URS and making it less useful 
> doesn't excite me. paying a bit more an having useful option -- willing to 
> discuss and understand. ICANN staff seem headed in a direction against that. 
> Personal view: pay more/have a viable option. IF not, then no use, so don't 
> proceed with URS.   
> 
>   
> 
> PERSONAL views only in that view. Discussion from informed members critical 
> for next 36 hours.  
> 
>   
> 
>   
> 
>   
> 
> Marilyn Cade, BC Chair 
> 
>   
> 
> 
> ----------------
> 
> Subject: Fwd: [council] Reconfiguring the URS?
> From: johnberard@xxxxxxx <mailto:johnberard@xxxxxxx> 
> Date: Thu, 3 May 2012 16:09:38 -0400
> CC: zahid@xxxxxxxxx <mailto:zahid@xxxxxxxxx> 
> To: marilynscade@xxxxxxxxxxx <mailto:marilynscade@xxxxxxxxxxx> ; 
> sdelbianco@xxxxxxxxxxxxx <mailto:sdelbianco@xxxxxxxxxxxxx> ; 
> chris@xxxxxxxxxxxxx <mailto:chris@xxxxxxxxxxxxx> ; 
> elisa.cooper@xxxxxxxxxxxxxxx <mailto:elisa.cooper@xxxxxxxxxxxxxxx> 
> 
> Do we agree with Phil that this is a policy matter?  My instinct is to say it 
> is not, but... 
> 
>   
> 
> Berard
> 
> Sent from my iPhone 
> 
> 
> Begin forwarded message: 
> 
> From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx <mailto:Jeff.Neuman@xxxxxxxxxx> >
> Date: May 3, 2012 2:09:09 PM EDT
> To: "council@xxxxxxxxxxxxxx <mailto:council@xxxxxxxxxxxxxx> " 
> <council@xxxxxxxxxxxxxx <mailto:council@xxxxxxxxxxxxxx> >
> Subject: [council] Reconfiguring the URS? 
> 
> 
> All, 
>   
> Thanks to Phil Corwin for catching this, but buried in the new budget 
> document 
> (http://www.icann.org/en/news/public-comment/op-budget-fy13-01may12-en.htm) 
> just put out for comment is a note on "reconfiguring" the URS.  Excerpt 
> provided below.   I guess they could not find any URS providers that could do 
> it for the costs that they had projected, so ICANN is holding 2 summits to 
> work on a new model.  My question for the Council, is whether this is really 
> a policy issue that should be referred back to the GNSO Community as opposed 
> to having  ICANN on its own resolving after holding 2 summits.  Given the 
> controversy around this over the past few years, any tweaks to the URS should 
> probably go back to the community in my opinion. 
>   
> ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
>  
> Uniform Rapid Suspension (URS) - $175K 
> At present there is a significant gap between the features specified for the 
> URS procedure and the desired cost. In order to bridge this gap we will: hold 
> two summit sessions to reconfigure the URS to arrive at a lower cost model 
> (one session in FY12 budget and another in this FY13 plan), conduct a process 
> to develop and finalize URS Model in consultation with current UDRP providers 
> and community members; and conduct RFP based on URS Model and select URS 
> providers. The goal is have a URS program in place and providers contracted 
> and onboard by June 2013. 
>   
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 21575 Ridgetop Circle, Sterling, VA 20166
> Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
> jeff.neuman@xxxxxxxxxxx <mailto:jeff.neuman@xxxxxxxxxxx>  / www.neustar.biz 
> <http://www.neustar.biz/> 
>   
> 
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