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

  • To: Victoria McEvedy <victoria@xxxxxxxxxxxx>
  • Subject: Re: [gnso-lockpdp-wg] Documents for today's meeting
  • From: "John Berryhill, Ph.d., Esq." <john@xxxxxxxxxxxxxxxxx>
  • Date: Thu, 10 May 2012 13:09:48 -0400




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.pdf .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-staff-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

//

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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.

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*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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