RE: [gnso-lockpdp-wg] Documents for today's meeting

[Victoria McEvedy <victoria@xxxxxxxxxxxx>]

John --thank you. It's very helpful.

You and some other members of the WG may have substantial knowledge on these 
issues and the background to some or other of them ---but for those who do not 
(myself) one is very conscious of being in the dark against a body of prior 
history, experience and work product.

I don't know if there is a way to deal with that --I am prepared to make the 
time to read things (though finding them is the challenge!).


Thanks again and best,

Victoria McEvedy

McEvedys Solicitors and Attorneys Ltd.

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-----Original Message-----
From: John Berryhill, Ph.d., Esq. [mailto:john@xxxxxxxxxxxxxxxxx]
Sent: 10 May 2012 18:10
To: Victoria McEvedy
Cc: Neuman, Jeff; Marika Konings; gnso-lockpdp-wg@xxxxxxxxx
Subject: Re: [gnso-lockpdp-wg] Documents for today's meeting



There is an additional problem with thinking the URS and UDRP are two breeds of 
the same species, to which Mr. Neuman alluded, and may help to flesh out.

The URS is stated as a free-standing policy to be implemented by registries. 
That is, the obligation to implement it, is one between ICANN and the registry. 
End of story.

The UDRP is stated as a mandatory contract provision in the agreement between 
the registrar and the registrant. That is the reason for the "we / you" 
language of it. The complainant is something of a limited third party 
beneficiary (see below) to that contract provision, and the UDRP provider is 
assigned the task of interpreting the relevant provisions of that part of the 
registrar-registrant contract.

The problem generally faced in these kinds of discussions is that the UDRP is 
viewed as a vehicle for imposing operational requirements on registrars. But it 
is an odd sort of contract in which I (the registrar) say to you (the 
registrant), "I will do X, Y, and Z. But if I don't do those things, it will 
inure to your benefit." In other words, a domain registrant is not going to 
claim breach by the registrar, if the registrar fails to transfer the domain 
name to someone else.

That hole is patched over by the general obligation stated in the RAA to the 
effect of "the registrar must comply with the UDRP". But as noted previously, 
the UDRP is not "special" in relation to the other simultaneous obligations of 
the registrar in relation to a domain name (e.g. WHOIS accuracy and the RAA 
3.7.7.3 "proxy clause"). In situations where the registrar has not complied 
with the UDRP, it becomes an RAA enforcement issue between the registrar and 
ICANN. The complainant does not have third party beneficiary status in the RAA 
(RAA 5.10; Register.com v. Verio, 356 F.3d 393 (2d Cir. 2004) (in which ICANN 
itself filed an amicus brief to make this precise point, and the court so 
ruled). So the best the complainant can do is to whine to ICANN compliance and 
hope they do something about it.

John Berryhill, Ph.d. Esq.
204 East Chester Pike
First Floor, Suite 4
Ridley Park, PA 19078
+1.610.565.5601
+1.267.386.8115 fax
john@xxxxxxxxxxxxxxxxx


On 5/10/2012 11:18 AM, Victoria McEvedy wrote:
>
> Thanks Jeff-very helpful.
>
> I note you say it was decided to delay considering the other issues
> until 18 months after the delegation of the first new gTLD. This is
> also what I had understood.
>
> Do you now say that it was decided not to wait the 18 months and there
> will be no further report?
>
> Otherwise it seems pretty clear from the plain language that our work
> won't be considered until that report to come.
>
> Do you mind if I ask -whether there has been any discussion or
> consideration of the desirability of having different lock provisions
> for the URS and the UDRP? **
>
> Thanks again and best,
>
> Victoria McEvedy
>
> //
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> *From:*Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]
> *Sent:* 10 May 2012 15:55
> *To:* Victoria McEvedy; Marika Konings; gnso-lockpdp-wg@xxxxxxxxx
> *Subject:* RE: [gnso-lockpdp-wg] Documents for today's meeting
>
> Victoria,
>
> I agree with you that the wording may be a little confusing and could
> have been better. The intent of the language I proposed was that the
> GNSO Council agreed in June 2011 to take up the issue of
> Recommendation 7 of the IRTP report when we discussed the Final Issue
> Report on the UDRP. We discussed the Final Issue Report on the UDRP in
> December 2011 at which time we decided to move forward with the PDP on
> recommendation #7 and delay considering the other issues which were
> raised in the Final Issue Report on the PDP until 18 months after the
> delegation of the first new gTLD.
>
> To your last question, no, I do not believe that the lock issue will
> be more informed by experience with the URS. I believe what is known
> now is sufficient for policy making with respect to the UDRP. If you
> believe additional clarity is needed from the Council, then perhaps
> you can raise this with the GNSO Council Liaison to the group (who I
> believe is Joy) and they can raise this with the Council.
>
> Thanks.
>
> *Jeffrey J. Neuman**
> **Neustar, Inc. / Vice President, Business Affairs*
>
> *From:*Victoria McEvedy [mailto:victoria@xxxxxxxxxxxx]
> *Sent:* Thursday, May 10, 2012 10:42 AM
> *To:* Neuman, Jeff; Marika Konings; gnso-lockpdp-wg@xxxxxxxxx
> <mailto:gnso-lockpdp-wg@xxxxxxxxx>
> *Subject:* RE: [gnso-lockpdp-wg] Documents for today's meeting
>
> Thanks Jeff-perhaps you can clarify the timing issue.
>
> On 15 December it was RESOLVED, that the GNSO approves the initiation
> of a PDP and the establishment of a Working Group on recommendation #7
> of the IRTP Part B Working Group concerning the requirement to lock a
> domain name subject to UDRP proceedings, which the GNSO Council at its
> meeting on 22 June 2011 received _and agreed to consider when it takes
> up consideration of the Final Issue Report on the Current State of the
> UDRP _(which is to be delivered to the GNSO Council by no later than
> eighteen (18) months following the delegation of the first new
> gTLD).**
>
> **
>
> This was " . . to allow the policy process to be informed by data
> regarding the effectiveness of the URS, which was modeled on the UDRP,
> to address the problem of cybersquatting."
>
> So (forgive me if I should know this) but has a new gTLD has been
> delegated and (which and) when?
>
> Is our work not to be informed by the URS experience on locking?
>
> Best,
>
> Victoria McEvedy
>
> //
>
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> *From:*Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]
> *Sent:* 10 May 2012 15:36
> *To:* Marika Konings; Victoria McEvedy; gnso-lockpdp-wg@xxxxxxxxx
> <mailto:gnso-lockpdp-wg@xxxxxxxxx>
> *Subject:* RE: [gnso-lockpdp-wg] Documents for today's meeting
>
> Victoria,
>
> As a Vice Chair of the Council, although I am not a direct member of
> this Working Group, I am an observer. I will note that Marika is
> correct that the Council decided to review this one aspect separate
> and apart from everything else with respect to the UDRP. I was the
> originator of that motion and perhaps we could have used better words
> and documented this a little better. I hope this helps.
>
> Best regards,
>
> *Jeffrey J. Neuman**
> **Neustar, Inc. / Vice President, Business Affairs*
>
> *From:*owner-gnso-lockpdp-wg@xxxxxxxxx
> <mailto:owner-gnso-lockpdp-wg@xxxxxxxxx>
> [mailto:owner-gnso-lockpdp-wg@xxxxxxxxx] *On Behalf Of *Marika Konings
> *Sent:* Thursday, May 10, 2012 9:04 AM
> *To:* Victoria McEvedy; Gnso-lockpdp-wg@xxxxxxxxx
> <mailto:Gnso-lockpdp-wg@xxxxxxxxx>
> *Subject:* Re: [gnso-lockpdp-wg] Documents for today's meeting
>
> I'm not really sure how it is contrary. The resolution that was
> referenced concerns the initiation of a PDP of the review of the UDRP.
> The Council decided that one part of that review should take place now
> (locking of a domain name subject to UDRP Proceedings) while all the
> rest should commence at a later date together with a review of the
> other rights protection mechanisms. Happy to try and explain this in
> further detail on the call today if it is still not clear.
>
> Best regards,
>
> Marika
>
> *From: *Victoria McEvedy <victoria@xxxxxxxxxxxx
> <mailto:victoria@xxxxxxxxxxxx>>
> *To: *Marika Konings <marika.konings@xxxxxxxxx
> <mailto:marika.konings@xxxxxxxxx>>, "Gnso-lockpdp-wg@xxxxxxxxx
> <mailto:Gnso-lockpdp-wg@xxxxxxxxx>" <Gnso-lockpdp-wg@xxxxxxxxx
> <mailto:Gnso-lockpdp-wg@xxxxxxxxx>>
> *Subject: *RE: [gnso-lockpdp-wg] Documents for today's meeting
>
> Thanks Marika.
>
> I don't believe I've seen that GNSO resolution before.
>
> Given it is directly contrary to the recommendation of the final
> report -is there further GNSO material on the origin and progress of
> that recommendation?
>
> In fact -all document references relevant to that recommendation would
> be helpful.
>
> Thank you.
>
> Regards,
>
> Victoria McEvedy
>
> //
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> *From:*Marika Konings [mailto:marika.konings@xxxxxxxxx]
> *Sent:* 10 May 2012 13:51
> *To:* Victoria McEvedy; Gnso-lockpdp-wg@xxxxxxxxx
> <mailto:Gnso-lockpdp-wg@xxxxxxxxx>
> *Subject:* Re: [gnso-lockpdp-wg] Documents for today's meeting
>
> Dear Victoria,
>
> Please note that in reference to IRTP Part B Recommendations #8 and #9
> that these, including the referenced staff proposals, have both been
> adopted by the ICANN Board and are in the process of implementation
> (see
> http://www.icann.org/en/groups/board/documents/resolutions-06may12-en.
> htm#1.5
> and
> http://www.icann.org/en/groups/board/documents/resolutions-16mar12-en.htm#1.2).
> Although the Council decided to commence an overall review on the UDRP
> and other rights protection mechanisms at a later date, it did decide
> to start a PDP on the specific issue of locking a domain name subject
> to UDRP Proceedings as this issue was raised both in the context of
> the IRTP Part B as well as the Issue Report on the UDRP (see
> http://gnso.icann.org/resolutions/#201112).
>
> With best regards,
>
> Marika
>
> *From: *Victoria McEvedy <victoria@xxxxxxxxxxxx
> <mailto:victoria@xxxxxxxxxxxx>>
> *To: *Marika Konings <marika.konings@xxxxxxxxx
> <mailto:marika.konings@xxxxxxxxx>>, "Gnso-lockpdp-wg@xxxxxxxxx
> <mailto:Gnso-lockpdp-wg@xxxxxxxxx>" <Gnso-lockpdp-wg@xxxxxxxxx
> <mailto:Gnso-lockpdp-wg@xxxxxxxxx>>
> *Subject: *RE: [gnso-lockpdp-wg] Documents for today's meeting
>
> Further to our call last week, some of the documents I was referring
> to are below. I also have some questions.
>
> _Documents _
>
> 1. The feedback from UDRP providers at
> http://gnso.icann.org/issues/udrp/udrp-final-issue-report-03oct11-en.p
> df .See the comments on locking at: NAF pp.54-55, 75; ADNDRC p.61; CAC
> p.68.
>
> 1.2, There was constituency out reach on locking and statements are at
> *gnso*.icann.org/drafts/*final*-*report*-irt-policy-09apr08.pdf . See
> pages14, 20-22.
>
> 2.3. More recently and more importantly I note there was also
> constituency outreach during the IRTP Part B PDP
> *gnso*.icann.org/issues/transfers/*irtp*-b-*final*-*report*-*30may*11-
> en.pdf . The issues that IRTP Part B Policy Development Process
> addresses
> include:
>
> d. Whether standards or best practices should be implemented regarding
> use of Registrar Lock status (e.g., when it may/may not, should/should
> not be applied);
>
> e. Whether, and if so, how best to clarify denial reason #7: A domain
> name was already in "lock status" provided that the Registrar provides
> a readily accessible and reasonable means for the Registered Name
> Holder to remove the lock status.
>
> And the following questions were asked of Constituencies:
>
> a)Whether standards or best practices should be implemented regarding
> use of a Registrar Lock status (e.g. when it may/may not,
> should/should not be applied);
>
> b)Whether, and if so, how best to clarify denial reason #7: A domain
> name was already in 'lock status' provided that the Registrar provides
> a readily accessible and reasonable means for the Registered Name
> Holder to remove the lock status.
>
> See pages 8,26-27 and as to the outreach pages 30 and 31:
>
> "The public comment period ran from 14 September 2009 to 5 October
> 2009. Seven (7) community submissions from six different parties were
> made to the public comment forum. ....A summary of all comments can be
> found here: http://forum.icann.org/lists/irtp-b/msg00007.html. The
> public comments on this forum are archived at
> http://forum.icann.org/lists/irtp-b/.
>
> 6.2 Constituency / Stakeholder Group Statements
>
> The Constituency Statement Template was sent to all the constituencies
> and stakeholder groups. Feedback was received from the Registrar
> Stakeholder Group, the Registry Stakeholder Group, Business and
> Commercial Users' Constituency and the Intellectual Property Interests
> Constituency....
>
> 6.3 Constituency / Stakeholder Group Views
>
> The full text of the constituency statements that have been submitted
> can be found on the IRTP Part B WG Workspace. These should be read in
> their entirety. The following section attempts to summarize key
> constituency views on the issues raised in the context of IRTP Part B
> PDP. In order to facilitate the review of the comments received, the
> WG developed this analysis grid in which the WG's response and views
> to each of the comments can be found."
>
> 4. Indeed it seems the discussion of the desirability of a
> standardized policy on locking continued with
> http://gnso.icann.org/issues/transfers/irtp-recommendation-8-icann-sta
> ff-16feb12-en.pdf
> . See:
>
> 1.Recommendation #8 concerning the standardization and clarification
> of Whois status messages regarding Registrar Lock status and
> recommendation; and
>
> 2.Recommendation #9 part 2 concerning a new provision to lock and
> unlock domain names).
>
> These became the subject of Staff proposals:
>
> 1.ICANN Staff Proposal on IRTP Part B Recommendation #8
> http://gnso.icann/org/issues/irtp-b-8-staff-proposal-22nov11-en.pdf ;
>
> 2.ICANN Staff Proposal on IRTP Part B Recommendation #9 part 2 [PDF,
> 490 KB] and published these for public comment
> http://gnso.icann/org/issues/irtp-b-9-staff-proposal-22nov11-en.pdf
>
> _Questions _
>
> I must say I am confused by the language in the Final Report on IRTP
> Part B Policy Development (as above
> *gnso*.icann.org/issues/transfers/*irtp*-b-*final*-*report*-*30may*11-
> en.pdf
> ) at page 20
>
> "Recommendations for Issue D
>
> *Recommendation #7*: The WG recommends that *if *a review of the UDRP
> is conducted in the near future, the issue of requiring the locking of
> a domain name subject to UDRP proceedings is taken into consideration"
> (emphasis added).
>
> Given that it was resolved not to look at the UDRP -I assume that our
> mandate can only go to the Recommendation 8& 9 issues?
>
> That is we should not be looking at anything to do with locking and
> the UDRP at all?
>
> Michele-I see that you were the Chair of that WG and that that the
> Final Report was authored by Marika -perhaps you can explain the UDRP
> exclusion and where we are? If this is the case -then I expect we are
> really looking at the Staff Proposals and we should review the
> existing outreach rather than redo?
>
> _Grumbles _
>
> I would note that tracking down these documents took me a morning that
> could have been more profitably spent on other tasks. Further, I doubt
> the above is comprehensive.
>
> I would also note that I expressly asked in the Charter Drafting Team
> for this WG (and on our last call) for a reading list of relevant
> material. The documents above appear to me to be highly pertinent to
> scope for the drafting of the Charter.
>
> Best,
>
> Victoria McEvedy
>
> //
>
> /McEvedys Solicitors and Attorneys Ltd. /
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> This email and its attachments are confidential and intended for the
> exclusive use of the addressee(s). This email and its attachments may
> also be legally privileged. If you have received this in error, please
> let us know by reply immediately and destroy the email and its
> attachments without reading, copying or forwarding the contents.
>
> This email does not create a solicitor-client relationship and no
> retainer is created by this email communication.
>
> *From:*owner-gnso-lockpdp-wg@xxxxxxxxx
> <mailto:owner-gnso-lockpdp-wg@xxxxxxxxx>
> [mailto:owner-gnso-lockpdp-wg@xxxxxxxxx] *On Behalf Of *Marika Konings
> *Sent:* 03 May 2012 21:59
> *To:* Gnso-lockpdp-wg@xxxxxxxxx <mailto:Gnso-lockpdp-wg@xxxxxxxxx>
> *Subject:* [gnso-lockpdp-wg] Action items from today's meeting
>
> Dear All,
>
> Please find below the action items from today's UDRP Domain Name Lock
> WG meeting. Attached you'll find the mind map in which I've attempted
> to capture some of the notes of today's meeting. If there is anything
> missing, please let me know.
>
> With best regards,
>
> Marika
>
> *_Action Items_*
>
>   * *WG Leadership: *Michele Neylon was nominated to serve as the
>     Working Group Chair. Alan Greenberg was nominated to serve as the
>     Working Group Vice-Chair. If there are any other candidates, or
>     support for / objections to these candidates, please share those
>     with the mailing list prior to the next meeting. If there are no
>     other candidates or objections, the GNSO Council will be requested
>     to confirm these appointments.
>   * *Best Practices Paper*: Sharing of latest published draft of draft
>     advisory concerning registrar best practices to protect
>     registrants upon initiation of a UDRP complaint - Please find
>     attached the paper that was the basis for the discussion at the
>     Sydney meeting (see http://syd.icann.org/node/4051). As mentioned
>     on the call, the paper is broader than just locking. The sections
>     that address locking (directly or indirectly) appear to be the
>     following:
>
>       o Upon notification of a domain name dispute filed through an
>         ICANN Approved Dispute-Resolution Service Provider
>         ("Provider"), the registrar should immediately place the
>         domain name on registrar lock to prevent cancellation,
>         transfer or changes to the domain name and notify all parties.
>         In arbitration cases, the registrar should subsequently
>         receive a verification request from the Provider".
>       o A UDRP proceeding commences when the Provider has notified the
>         Complainant, the Respondent and the concerned Registrar(s), of
>         the commencement of the response period. During this time, the
>         registrar should not take any action involving transfer or
>         cancellation of the domain name until receiving direction from
>         the dispute resolution provider of a decision or other
>         resolution of the complaint, which could be a withdrawal among
>         other things.
>       o If the Provider notifies the registrar of such a suspension
>         and/or transfer, then the registrar may transfer the domain
>         name to the Complainant on the respondent's behalf but must
>         prevent any further transfer of the domain name pending the
>         termination or withdrawal of the proceeding.During this
>         period, it is not advisable to allow the registrant access to
>         a mechanism that would allow transfer or cancellation of the
>         domain name. In addition, the registrar should only accept
>         notification of suspension directly from the Provider.
>       o If the registrar receives notice of a termination or
>         withdrawal from the Provider, the registrar should immediately
>         restore control of the domain name to the agreed upon
>         registrant as stated by the Provider and notify the
>         Complainant, Respondent and Provider. The registrar should
>         only accept terminations/withdrawals directly from the Provider.
>       o Also, upon receiving a communication from a Provider about a
>         UDRP complaint, registrars should carefully review all
>         registrant requests to transfer domain names subject to the
>         complaint to a different registrant, as such transfers may be
>         restricted by paragraph 8 of the UDRP
>
>   * *Outreach*: Develop questions to obtain input from registrars /
>     registries - Matt Schneller has volunteered to develop a first
>     list of questions
>   * *Outreach*: Review proposed public comment forum draft (All)
>
>
>
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The message was checked by ESET NOD32 Antivirus.

http://www.eset.com



__________ Information from ESET NOD32 Antivirus, version of virus signature 
database 7127 (20120510) __________

The message was checked by ESET NOD32 Antivirus.

http://www.eset.com