RE: [gnso-igo-ingo] IGO-INGO - Final Report

["Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx>]

All:

I agree with Chuck as well.  According to the “consensus tool” attached to 
Berry’s last email, 8 out of the 10 groups did not support these proposals.  
Only the IGOs and Poncelet Ileji supported these proposals.  I know that this 
is not a mechanical voting process, and determining a consensus result is more 
nuanced than merely counting noses.  Nonetheless, the results of the consensus 
call deserve great weight, and the difference between one level of consensus 
and the next should shift in the “gray areas” and not where a clear consensus 
(in either direction) emerges.

As a matter of substance, and not semantics, how can you say that a  tally like 
that supports “Divergence” as a conclusion?  As a matter of substance, and not 
semantics, how is “Consensus Against” a “mis-characterization” of such a tally? 
 As a matter of substance, and not semantics, how can you say that such a tally 
represents a “lack of consensus”?

I think it would diminish the credibility of the Working Group and the WG 
process if the consensus “name” did not accurately reflect the consensus 
result.  “Divergence” is a state where there is not strong support for any 
particular position.  How does a tally where 8 of 10 did not support a proposal 
equate to such a state?  8 out of 10 would seem to me to support “Consensus.”

I must also take issue with the statement that “Each member of this Working 
Group is aware that there is no actual “Consensus Against”.”  As with Chuck, I 
am also aware of no such thing.  It might be fair to say that “there is no 
semantic “Consensus Against” (i.e., that the consensus scale doesn’t formally 
recognize such a thing).  But this is not a semantic exercise.  It is an 
exercise in accurately reflecting the will of the group.  To say that there is 
no actual “Consensus Against” in this particular instance is just wrong.  I 
will give Joanne the benefit of the doubt that she is referring to the formal 
consensus scale, and not somehow accusing the WG of a willful mislabeling of 
the level of support for these proposals.

Finally, I think we can all be sympathetic with the idea that a group that 
feels most “directly impacted” should somehow be given more weight in the 
process.  Most if not all groups have argued that at one point or another in 
ICANN.  Unfortunately, that concept is anathema to the multistakeholder model.  
If any group wants its positions to be given more weight at any point in the 
multistakeholder model, the path to that involves participation, persuasion, 
dedication, and superior marshaling and sharing of facts and arguments to move 
“hearts and minds” and ultimately the consensus.

I say all this as someone who has been sympathetic to the acronym proposal, and 
as one who in fact supported the acronym proposal within the IP constituency’s 
discussion of the matter.  However, I accepted the overall level of consensus 
in my constituency, and I suggest that the IGOs should do the same here.   The 
IGO position is clearly a minority view, and the IGOs have appropriately 
provided a minority statement in that regard.  However,  it is not appropriate 
to drag the consensus needle back to the middle position of divergence where 
that minority position stands almost alone, and nearly every other group has 
formed a consensus opposite to that position.

That’s enough for the moment.  I’ve stated my thoughts on this topic first in 
an email on September 18th and at length in my email of October 30 (not 
responded to by any IGO reps) and on several calls, most recently our call of 
October 30 (not participated in by any IGO reps).  I look forward to any 
responses here, both to this email and my email of October 30.

Greg

Gregory S. Shatan
Partner
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
212.549.0275 (Phone)
917.816.6428 (Mobile)
212.521.5450 (Fax)
gshatan@xxxxxxxxxxxxx
www.reedsmith.com



From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
Behalf Of David W. Maher
Sent: Tuesday, November 05, 2013 11:55 AM
To: Gomes, Chuck; Teng, Joanne; Berry Cobb; gnso-igo-ingo@xxxxxxxxx
Subject: Re: [gnso-igo-ingo] IGO-INGO - Final Report

+1
Well stated responses.
David Maher

From: <Gomes>, CHUCK GOMES <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>
Date: Tuesday, November 5, 2013 11:37 AM
To: "Teng, Joanne" <joanne.teng@xxxxxxxx<mailto:joanne.teng@xxxxxxxx>>, Berry 
Cobb <mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>>, 
"gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>" 
<gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>>
Subject: RE: [gnso-igo-ingo] IGO-INGO - Final Report

Joanne,

Please see my responses below.  I submit them not as a leader of the group but 
rather as a participant just like Avri.

Chuck

From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Teng, Joanne
Sent: Tuesday, November 05, 2013 4:23 AM
To: Berry Cobb; gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: RE: [gnso-igo-ingo] IGO-INGO - Final Report

Dear colleagues,

We were dismayed to receive the below email message of November 4, 2013 
regarding Section 3.5 and the change made to indicate “Consensus Against” for 
General Recommendations 1 and 2.
[Chuck Gomes] I don’t recall rather you participated in the WG call when this 
was discussed.  If not, I strongly encourage you to do so because we spent 
quite a lot of time discussing this.  I think it was last week’s call but it 
could have been the one before that.

Changing the level of support to “Consensus Against” at this very late stage is 
highly inappropriate.
[Chuck Gomes] I think it would only be inappropriate if there was not good 
evidence that there was ‘consensus against’.  Note that we are not saying that 
there is ‘full consensus’ against.  Judging by WG participant positions and 
public comments, I personally think that there is fairly clear evidence 
supporting a ‘consensus against’ position, but I will leave that final decision 
to our leaders.  Also, I think that reporting it that way provides clarity in 
terms of the results of our work and the comments we received.

  It is also misleading, as it masks the clear positions in favor of top-level 
and second-level protections for acronyms expressed by the OECD, UPU and WIPO 
throughout this Working Group process.  With these three immediately concerned 
Working Group members indicating that they are in favor of top-level and 
second-level protection of exact match acronym identifiers, the level of 
support recorded for Recommendations 1 and 2 in Section 3.5 cannot in good 
faith be characterized as “Consensus Against”.
[Chuck Gomes] The fact that three groups who are all IGOs and are all directly 
impacted by the recommendation does not mean that there is not ‘consensus 
against’.  I repeat again that we are not saying there is ‘full consensus 
against’.  It is important to look at the total responses from all WG 
participants and to look at all public comments received in making this 
assessment. The purpose of minority statements is to allow individuals or 
groups to communicate how they differ from broader group positions and that has 
been done in the report.

Far more than any other constituency represented in the Working Group, it is 
IGOs themselves that are affected by any ICANN failure to grant the requisite 
preventive protection to their names and acronyms.
[Chuck Gomes] Are you suggesting that because IGOs are impacted directly that 
they should have greater influence than other impacted parties? To use just the 
acronym issue as an example, there are hundreds of non-IGO organizations that 
have acronyms identical to IGOs and moreover I would venture to say that in 
many cases the public is more familiar with the non-IGO acronyms than with the 
IGO acronyms.  Should governmental organizations be granted superior rights to 
non-governmental organizations?  I presume you would say yes, but I would only 
agree that that is the case if international law was explicit in that regard; 
in my opinion, international law is not sufficiently explicit and I know you 
likely disagree with that.

  IGOs strongly oppose mis-characterization of the level of support for General 
Recommendations 1 and 2 as “Consensus Against”, particularly in light of the 
Working Group leadership’s earlier statements of September 20, 2013 about the 
inappropriateness of changing the terminology of the consensus scale. [Chuck 
Gomes] The terminology of the WG procedures was not changed. The fact that we 
used another term to describe what was strong opposition in the WG and in 
public comments does not mean that we changed the consensus scale.  Most 
members of the working group think that we should clearly communicate that 
there was ‘strong opposition’; simply using the term ‘divergence’ does not 
sufficiently make that clear in our opinions.  Again, I encourage you to listen 
to the extensive discussion that occurred on this.

Each member of this Working Group is aware that there is no actual “Consensus 
Against”.
[Chuck Gomes] I am not aware of that. If you think that is true then I 
challenge you to prepare an objective summary of the groups in the WG and the 
public comments showing how many support and oppose the recommendations you are 
concerned with.

  Given their stake, the three IGO Working Group members have an entirely 
reasonable expectation that this lack of consensus be accurately reflected in 
the Final Report as “Divergence” as was originally done by the Chair.  A 
failure to do so would diminish the credibility of the Final Report on this 
issue (and indeed, the Working Group leadership itself has recently argued that 
“a last minute change to the consensus levels might let the process appear not 
having been reliable”), and the three IGOs will not fail to point this out to 
the GNSO Council, the ICANN Board and other stakeholders.
[Chuck Gomes] Using the WG guideline definition, divergence is the applicable 
term and in fact it is reported as such if you look at the part of the final 
report for IGOs in Section 3.6, Unsupported Proposals. Not only was this 
reported as divergence originally by the chair but it is still reported that 
way in the IGO table in Section 3.6.  I somehow get the impression that you 
have not thoroughly read the final report.  Moreover, I fully expect you to 
make your point to the Council, the Board and other stakeholders.  They need 
all the information possible in evaluating the process and the facts in terms 
of levels of support.

We look forward to hearing the Working Group leadership’s response.

Best regards,

WIPO, OECD, UPU

Jo Teng and Berly Lelievre Acosta on behalf of the Working Group 
representatives from WIPO, OECD and UPU


From:owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx]<mailto:[mailto:owner-gnso-igo-ingo@xxxxxxxxx]>
 On Behalf Of Berry Cobb
Sent: Monday, November 04, 2013 6:39 AM
To: gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: [gnso-igo-ingo] IGO-INGO - Final Report

WG Members,

Please find attached the latest version of the IGO-INGO Final Report.  Versions 
1.1 to 1.3 reflect changes as a result of moving the recommendations section to 
the top of the report.  I accepted those changes to reduce the amount of 
red-line.  V1.4 contains the red-line of the substantial changes.  It will be 
best for readers to read the report in the Final view, but please make sure to 
also review comments that are appended on the side of the report as they 
contain questions or comments that the WG should consider.  The following 
sections should be reviewed closely:

·         Recommendations now in sections 3.1 to 3.5

·         Section 3.5 now reflects “Consensus Against” for the no reservation 
protections of acronyms recommendations at the top and second level

·         Section 3.5 also includes a recommendation for the SCI of the GNSO 
Council to review the Consensus Scale per WGG

·         Unsupported proposals now reside in section 3.6, which also contains 
tables of proposals for each organization that did not receive support

·         Implementation considerations on incumbent gTLDs is section 3.7 and 
includes reference to an IRT

·         Annex 4 contains a completed template for requesting an Issue Report 
for a PDP

Please review the report in preparation for our review on Wednesday.  I will 
accept suggested edits until 23:59, 5 Nov for this round.  This will allow me 
time to collate all changes into the master.  When submitting any suggestions, 
please use the red-line track changes feature within v1.4 of the Word document. 
 If you are unable to submit changes, we will have a second round after our 
Wednesday meeting.

Note that we do have 1 hour meetings setup 7 & 8 November at 14:00 UTC for one 
hour should we need those times to discuss any issues with the Final Report.  
We have until 23:59, 10 Nov 2013 to submit the report to the GNSO Council.

I will send along an agenda on Tuesday.  Thank you.  B

Berry Cobb
Internet Corporation for Assigned Names & Numbers (ICANN)
720.839.5735
mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>
@berrycobb




World Intellectual Property Organization Disclaimer: This electronic message 
may contain privileged, confidential and copyright protected information. If 
you have received this e-mail by mistake, please immediately notify the sender 
and delete this e-mail and all its attachments. Please ensure all e-mail 
attachments are scanned for viruses prior to opening or using.



* * *

This E-mail, along with any attachments, is considered confidential and may 
well be legally privileged. If you have received it in error, you are on notice 
of its status. Please notify us immediately by reply e-mail and then delete 
this message from your system. Please do not copy it or use it for any 
purposes, or disclose its contents to any other person. Thank you for your 
cooperation.

* * *

To ensure compliance with Treasury Department regulations, we inform you that, 
unless otherwise indicated in writing, any U.S. Federal tax advice contained in 
this communication  (including any attachments) is not intended or written to 
be used, and cannot be used, for the purpose of (1) avoiding penalties under 
the Internal Revenue Code or applicable state and local provisions or (2) 
promoting, marketing or recommending to another party any tax-related matters 
addressed herein.

Disclaimer Version RS.US.20.10.00