Re: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting

[<franks@xxxxxxxx>]

Having watched this process quietly,  I coldn't agree more with your statement 
Tim..

  ----- Original Message ----- 
  From: Tim Ruiz 
  To: Mike Rodenbaugh 
  Cc: Rosette,Kristina ; gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W 
  Sent: Wednesday, May 16, 2007 9:38 AM
  Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting


  Mike,

  While it may seem that the world is ruled by IP interests, I would like to 
think that isn't true (although this WG may be). But maybe I'm just an 
idealist. The fact of the matter is that there is a difference between the 
privilege of *defensively* protecting rights and the mechanisms that resolve 
disputes after the fact. The UDRP is a very cost effective way to do the latter.

  The privilege of being granted defensive protection mechanisms not provided 
for in local or national law should not come at everyone elses expense. If the 
legislative process, or some or other regulatory process can be gamed to 
provide for that, so be it. I guess we'll meet you on the Hill. But as ICANN 
repeatedly claims, it is not a regulatory body, does not control prices, and 
the #7 you propose is not within ICANN's scope to mandate by their own repeated 
claims. The recent attempts by registrars and others in regards to the current 
registry agreements should make that clear.

  And why should registries be concerned with improving your bottom line at the 
expense of their own. That argument just doesn't hold water. You are the IP 
holder. The cost of protecting your IP is yours. 


  Tim 




    -------- Original Message --------
    Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's
    Meeting
    From: "Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>
    Date: Tue, May 15, 2007 7:58 pm
    To: "Tim Ruiz" <tim@xxxxxxxxxxx>,  "Smith, Kelly W"
    <kelly.w.smith@xxxxxxxxx>
    Cc: "Rosette, Kristina" <krosette@xxxxxxx>,  <gnso-pro-wg@xxxxxxxxx>


    Currently, as far as I know, registries and registrars are the only 
businesses in the world who purport to charge any other entity to complain that 
the first party is or likely will be infringing or materially contributing to 
the infringement of the second party's legal rights.  That needs to stop, and 
eventually logic will prevail and it will stop, through policy, legislation 
and/or litigation.  The hope was that ICANN stakeholders could agree to some 
binding policy rather than pursue other avenues.

    As a potential political compromise up to this point, realizing how long 
the registries and registrars have been benefiting so nicely from this reality, 
I have been willing to accept that maybe they could seek to recover up to half 
of their costs of this from complaining parties.  This I thought generous, and 
despite the fact that every other business in the world must provide these 
complaint mechanisms as a cost of doing business, and accordingly charge their 
customers more.  Registries and registrars should do that too, their customers 
benefit from a cleaner domainspace and so do the registration providers.  These 
businesses certainly should not be arguing that rights protection mechanisms 
should be a profit center for themselves.  They even seem unwilling to agree to 
a general policy principle that their pricing should be reasonably based on 
their costs?  

    Unreasonable, unjustified costs will lead to less adoption of any rights 
protection mechanism, therefore to more abusive registrations.  Abusive 
registrations have high social and financial cost to the public and impose 
higher litigation costs upon businesses.  Registries and registrars need to 
accept more of the burden of minimizing abusive registrations which they enable 
and profit from, and need to spread that cost among their registrants, rather 
than seeking to profit from rights protection mechanisms.

    I support this as principle/policy stmt #7:

    The fees charged by a gTLD for participation in its RPM MUST be reasonably 
close to their actual or expected costs.

    I also support Kelly and Avri's other principles as stated.

    Mike Rodenbaugh

    Sr. Legal Director

    Yahoo! Inc.


    NOTICE:  This communication is confidential and may be protected by 
attorney-client and/or work product privilege.  If you are not the intended 
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    From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx] On 
Behalf Of Tim Ruiz
    Sent: Tuesday, May 15, 2007 1:51 PM
    To: Smith,Kelly W
    Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx
    Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting

    Currently, Registries are not required to justify most of their price 
increases, and in fact, make no justification for their existing prices 
whatsoever. I would be interested in knowing what basis or precedent there is 
for any holder of legal rights of any kind to expect special treatment and 
require justification of or a basis for Registry pricing from new gTLD 
entrants. I propose this alternative language for #7:

    gTLD registry operators MAY charge fees for participation in its RPM. The 
amount of such fees MUST be at the gTLD registry operator's sole discretion.

    Also, many of the suggested *principles* (which are actually proposed 
policies) use the phrase Prior Rights. The SOW uses the phrase legal rights. 
There is a considerable difference. The latter does not, IMHO, refer solely to 
the rights of TM holders, famous names, etc. Whereas the implications of Prior 
Rights as is used in most of these policy statements implies that distinction. 
I propose that all suggested principles/policy statements use the phrase Legal 
Rights instead of Prior Rights to be consistent with our SOW.


    Tim 




    -------- Original Message --------
    Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's
    Meeting
    From: "Smith, Kelly W" <kelly.w.smith@xxxxxxxxx>
    Date: Tue, May 15, 2007 3:13 pm
    To: "Rosette,  Kristina" <krosette@xxxxxxx>,  <gnso-pro-wg@xxxxxxxxx>

    All, 
      
    I propose the following alternative language for principle #7 (new language 
in red): 
      
    The fees charged by a gTLD for participation in its RPM SHOULD be 
reasonable and each gTLD applicant MUST identify in its application the basis 
of its fee calculation. on which it anticipates charging fees.  
    I propose the following language regarding validation (revised from #8, 
which we did not agree on).  If we cannot reach agreement, I believe this at 
least has support:
    The Prior Rights on which a party bases its participation and seeks to 
protect in an RPM SHOULD be subject to actual validation, at least if the 
validity of such rights is challenged validated.  
    I propose the following new principle (based on the questionable inclusion 
of U.S. registrations as a rights basis in the .asia launch), and am happy to 
hear suggestions regarding alternative language:
    To the extent a gTLD is intended for/targeted to a particular geographic 
region, the Prior Right on which a rights owner bases its participation in the 
RPM SHOULD originate from the laws of a country in that region.
    Finally I agree with Avri's comments concerning applicability to IDNs, and 
perhaps we can use this language, as the final principle:
    The aforementioned principles should equally apply to both ASCII/LDH TLDs 
and IDN TLDs. 
    Kristina, let me know if you'd like me to reflect these in a further 
redline, or if you'll be collecting everyone's comments into a new version 
before the call tomorrow.
    Thanks 
    Kelly Smith 
    Intel Corporation 
    ________________________________ 
    From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx] On 
Behalf Of Rosette, Kristina 
    Sent: May 14, 2007 2:29 PM 
    To: gnso-pro-wg@xxxxxxxxx 
    Subject: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting 


    All, 
    Attached is an updated proposals chart that reflects the discussion today.  
I have also attached a redline.  As you will see, I have indicated the current 
level of support (based on my notes) for the proposals we discussed and as we 
discussed revising them.  Please review them and let me know ASAP if I have 
mischaracterized the "revised" proposal and/or the level of support.  
    Tim, once you've had a chance to review, would you please post whether any 
of these specific points could be used instead of your principles 1-6?  I will 
create a consolidated proposals chart shortly before our call on Wednesday.
    Kristina 
    <<Redline PRO WG Proposals Chart.DOC>> <<05142007 PRO WG Proposals 
Chart.DOC>>