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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Thanks Alan for continuing the dialog with some good points.  With regard to 
the 31 Jan 2013 Board motion deadline, I note that it only relates to the IOC & 
RC names, not the IGO names, so it literally does not apply to the IGO names.  
But, if we recommend interim protection for IOC & RC names in case the PDP 
doesn’t finish in time, would it also make sense to consider the something 
similar for other names?

Chuck

From: Alan Greenberg [mailto:alan.greenberg@xxxxxxxxx]
Sent: Friday, November 02, 2012 4:22 PM
To: Gomes, Chuck; Avri Doria; gnso-igo-ingo@xxxxxxxxx
Subject: RE: [gnso-igo-ingo] Reactions to first meeting

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> [ 
mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Avri Doria
Sent: Friday, November 02, 2012 8:14 AM
To: gnso-igo-ingo@xxxxxxxxx<mailto: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