RE: [gnso-igo-ingo] Reactions to first meeting

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

My comments on Avri and Chucks comments....

At 02/11/2012 03:30 PM, Gomes, Chuck wrote:
> Avri,
>
> I inserted some personal responses to your comments below.
>
> Chuck
>
> From: owner-gnso-igo-ingo@xxxxxxxxx 
> [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Avri Doria
> Sent: Friday, November 02, 2012 8:14 AM
> To: gnso-igo-ingo@xxxxxxxxx
> Subject: [gnso-igo-ingo] Reactions to first meeting
>
> Hi,
>
> Finally got to listen to the first meeting.
>
> Feel like I have missed a fast moving train. 
> This note constitutes my chasing of that runaway train.
> One clue to doing a PDP quickly: don't short 
> change the planning and scheduling stage.
Agreed.

> Some points:
>
> - I think that the start staff made to the 
> charter went in the wrong direction. It is not 
> reasonable to render the subject of IOC, IFRC, 
> RCRC, IGO, and INGO asunder. The first goal of 
> the PDP as I understand it, is to establish the 
> policy bases for special reservation status. 
> This does not mean there its just one basis, 
> there could be several valid bases. Once we have 
> the basis set, then we can figure out who 
> belongs to which qualified category. 
> Specifically, we need the something like the following work items:
> [Gomes, Chuck] Your list of work items make a 
> lot of sense to me for the PDP with the exceptions noted.
Not sure this list should be taken as an 
mandatory ordered list but it is a great laundry 
list on which the WG needs to base its planning and audit its output.


> -- establish the bases under which ICANN should 
> expand its reserved names list, or to create a 
> special reserved names list, to include IOC, 
> IFRC, RCRC, IGO, and INGO related names.
> -- decide on whether the names should be added 
> to the existing reserved names list or a new list(s) should be created.
At the very least, some level of differentiation 
will likely to be needed to allow the 
organization "owning" the reserved name to use 
it. It would be hard to imagine that none of them 
would have an interest in ANY of the new gTLDs. 
It is interesting that the current reserved names 
in theory cannot be registered - wonder what 
would happen if (for example) IANA wanted a 2nf 
level registration on the not-applied-for .trustednetwork.

> -- develop a policy recommendation on how 
> determinations can be made concerning which 
> organizations meet the bases recommended above.
> - this is in addition to the two I already recommended, something like:
>
> -- do an impact analysis on each of the 
> recommendations, if any, for rights, competition etc. as defined in the PDP
> -- determine how incumbent registries should 
> meet the new policy recommendations, if any.
> [Gomes, Chuck] I am not sure this step is needed 
> because any Board approved consensus policy 
> recommendations coming out of the PDP would 
> apply to all registries and registrars, 
> incumbent and new.  PDPs by definition are for 
> all registries and registrars under contract 
> with ICANN, the only exception being any for 
> which the policies do not apply (e.g., some 
> policies approved in the past did not apply to some sponsored gTLDs).
What Chuck says is true, and if the world were 
simple, all of the details could be left as 
implementation details. However, because it is 
likely that if new names are reserved as an 
outcome of the PDP, how to protect the rights of 
the earlier registrants and at the same time 
implement the new policy (in an age where names 
are often not dropped after expiration but rather 
moved to another registrant unrelated to the 
first) may require explicit consensus policy for registrars.


> - note: splitting IOC/RCRC from the rest, its a 
> prediction by the staff of something that should be decided by the WG.
> [Gomes, Chuck] I agree with this for the PDP 
> itself but I do believe that the WG will need to 
> respond to the Board’s request with regard to the IOC/RCRC.
If "respond to Board's request" is a reference to 
the Jan 31 deadline, see my next answer. 
Otherwise, I see no reason to presume that they 
will be split or dealt with in the same recommendation.


> - We shouldn't have a Jan 31 goal. For better or 
> worse those recommendations have been made by 
> the DT. They recommended a moratorium and the 
> doing of PDP that should be done before first 
> delegation. Though I disagreed with that 
> recommendation in part, that is done and in 
> comment review. Why rehash? As Alan says caking 
> that a deliverable is a program for failure.
> [Gomes, Chuck] I do not think we must have a Jan 
> 31 deadline for the PDP but I believe we do need 
> an early January deadline to provide the Council 
> with recommendations regarding how they should 
> respond to the Board deadline.  In my opinion, 
> we need to provide the Council some information 
> well enough in advance of the January Council 
> meeting so that they can take action regarding a 
> response to the Board at that meeting. I believe 
> that the IOC/RC DT has already provided clear 
> recommendations that can be used for part of the 
> response to the Board if the PDP WG supports 
> that approach; I personally think that it would 
> be ashamed to start that work all over 
> again.  If I am correct on that, then I think 
> the other task with an early January deadline 
> would be whether or not there should be any 
> interim protection for other intergovernmental 
> organizations at the second level if the PDP 
> does not finish before new gTLDs are delegated.
Presume that was taking and not caking... ;-)

In my mind, the ONLY involvement with the 31 Jan 
deadline by this WG, is, if there is a strong 
feeling in the WG that the DT's recommendations 
are dangerous and a really bad idea. Not sure 
what the methodology is for a PDP WG to make such 
a recommendation near the start of its work, but 
disregarding mechanisms, that is the only reason 
we need to get into that game. Like the DT's 
recommendations or not, they will address the 
Board's request if the GNSO Council deems to pass them on.
Despite the staff desire to have an approved 
charter in a week, I think that this is not 
practical. I cannot recall any other charter that 
was completed so quickly, even for much simpler 
issues. To complete the charter and then reach a 
final conclusion on the RC/IOC is simply not 
going to happen in the next 6 or so working 
weeks. Even if we had a report VERY soon, we 
could not get it out for public comment in that time.
So unless there is a strong feeling that we need 
to quickly to the DTs work over again, let's let it lie.


> - do IOC and RCRC really want to remain joined 
> at the hip for the work in this PDP?
Certainly from an At-Large perspective, the two 
should be evaluated separately. If the WG comes 
to the same conclusion for both, so be it.

> - just because IOC/RCRC have asserted a claim 
> based on treaties related to their marks, and 
> legal has started that this assertion does not 
> apply to IGOs, does not mean that the assertion 
> has legal bearing on TLDs or registrations at 
> the second level. I find it curious that there 
> has not been any case law presented on the 
> illegality of IOC/RCRC references used in domain 
> names. If indeed these do run contrary to 
> international and national law, where are the 
> non-trademarks cases that defend these 
> assertions? This its perhaps part of the legal 
> research that needs to be done. GAC and IOC/RCRC 
> assert it is _illegal_ to use certain words in 
> domain names - in which cases has this been 
> argued and found to be the case? As I have 
> argued elsewhere while the GAC its many things, 
> it is not an international tribunal; for those 
> in doubt, please go back to the comments made by 
> GAC members during MAPO/REC6 discussions.
I think this is the crux of a lot of the 
discussion. It may well be that the USE of a 
specific name is "illegal". It would be nice to 
have case law in at lest some jurisdictions 
indicating that. Regardless, being illegal to use 
is not the same as may not be registered, just as 
something that is illegal to use may not be 
illegal to manufacture. The connection of the two 
*might* be that if its use is forbidden in so 
many jurisdictions, we might as well save 
everyone time and effort and not allow them to be 
registered. But that sounds like a policy decision to me.

> - speaking of legal review and advice for the 
> PDP, developing the questions to ask should be 
> one of the work items for the PDP. Specifically
> -- determine whether further legal advice its 
> necessary, and if so, develop a set of specific questions.
>
> - as for the organization of the group I 
> recommend a Co-chair arrangement, such as was 
> successfully used in IRTP-C. one took the lead 
> on substance and running the meetings, the other 
> took the lead on process and schedule and of 
> course the backed each other up. I think it is 
> the only way to do a forced march of PDP.
Clearly we need at least a Chair and Vice-chair 
of not two co-chairs. at this point, we don't have any volunteers.
Alan


> ~~~
> avri