[gnso-sti] Review of draft recommendations - v2

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

From Olivier and me (despite the comments starting with "I").

These comments are over and above those previously sent. Sorry about 
the length. Although I do ask a number of questions here, In cases 
where I suggest alternate wording, I do not *think* that I altered 
the intent of the group. If I have erred, I trust someone will point it out.
A glossary of terms might be useful, but perhaps no time for that. If 
not, do we need to define Registrant and Complainant?
Regarding minority opinions, I think that we should either delete 
them from the last column of the document and have them in separate 
minority statements, or leave them there but with the caveat at the 
top that "Those minority opinions that were know at the time the 
report was written were included. Others may be appended by 
Stakeholder Groups."
Clearinghouse

We talk about provider(s) for the Clearinghouse, but do we need to 
explicitly say that this should be an outsourced service and not 
operated by ICANN?
7.1 talks about post-launch claims, but the title "No required IP 
Claims Notices" does not seem to be relevant. Perhaps "Post-Launch IP 
Claims". Also, I would suggest the text of the recommendation be 
"Provision of a post-launch IP Claims service is not mandatory". The 
implication is that the TC could offer such a service (under the 
terms already described in 6.1) but is not required.
URS

Intro paragraph: the last sentence ends with "provided that the 
procedure includes appropriate safeguards to protect registrants who 
may engage in legitimate uses of domain names." We suggest removing 
the word "may" as the procedures protect people who ARE engaging in 
legitimate use, not those who say that they will someday.
2.3 I suggest removal of the explicit to Nominet. For a number of 
reasons, it may not help our case to explicitly reference them here. 
removing "from Nominet" suffices. If we feel we need to justify the 
concept of safe harbors, we can follow this sentence with "Such safe 
harbors have been successfully used in similar processes in other 
jurisdictions".
3.2 Instructing staff to implement language provisions in the most 
"efficient" manner is not sufficient. At the very least, it must be 
"in an efficient and effective manner". Preferably, though we should 
be explicit as per the discussions we had and use "in an efficient 
and effective manner; Specifically, the notice should be in the 
language used by the registrant during the registration process."
4.1 This is a comment that will be repeated in a number of places. We 
have the habit of assuming that a domain name is just used for the 
web and we should ensure that our language does not do this. In this 
section, we suggest replacing "but the domain name still resolves and 
other features would function (e.g. e-mail). " by "but the domain 
name still resolves to the original IP address and all features would 
function (e.g. web, e-mail)."
4.2 This recommendation is incorrect as a domain does not get taken 
down at Default, but rather after a Decision is rendered. The effect 
of filing an answer after default is covered in section 5 so 4.2 
should be deleted.
5.1 For clarity, at the end of the recommendation, add "prior to 
being declared in default"
5.2/3 Several problems: "timely" is not defined; the fee between 20 
days and the decision being rendered is not defined; the title 
Default Answer Fee does not quite address the issue.
I suggest changing "No answer fee will be charged if the Registrant 
files its answer in a timely manner." to "No answer fee will be 
charged if the Registrant files its answer prior to being declared in 
default, or not more than thirty (30) days following a Decision. For 
answers filed more than thirty days after a decision, the respondent 
should pay a reasonable fee prior to re-examination."
5.x The section currently numbered 8.1 includes text that should be 
actually be here, as it is not part of the appeal practice (this 
mis-placement probably happened due to a side-conversation between 
Alan and Liz). My text is from the strawman.
Title: Filing Answer After Default
Recomendation: If respondent fails to file an answer within twenty 
(20) days and the panelist rules in favor of complainant, respondent 
could seek de novo review by filing an answer at any time.  Upon such 
an answer being received, Domain Name to resolve immediately to 
original IP address."
Comment: Do we want to comment on that case of a response being filed 
after 20 days but before the examiner reviews the case?  We could 
either incorporate the answer into the dossier, or let the judgement 
be rendered and the re-do it. I suggest we leave this as an 
implementation detail.
6.1 Replace "twenty (2)" by "twenty (20) days". In the next sentence, 
we mix cases - "A decision ... they should be...". I suggest 
replacing "they should be completed" with "a decision should be rendered".
6.2 "with legal background" should be deleted as it is redundant and 
included in 6.3.
6.3 Do we need to be more specific about what the examiners should be 
trained and certified in??  I guess that needs to be in the contract 
but not here.
6.4 I suggest that at the start of the recommendation we replace 
"ICANN" with "The URS implementation and contracts". On an ongoing 
basis, ICANN should not be a party to the process.
6.5 I think that we decided that the grounds for not using a 
particular Examiner should be wider than just language or 
malfeasance, since for example, not delivering in a timely manner is 
not really malfeasance. Mark had some good language at our last meeting.
Also in 6.5, I think that "ICANN Staff has the discretion to 
determine whether this feature is implementable" is not what we said. 
Avoiding gaming was a critical part of our unanimous consensus. ICANN 
staff can determine if round-robin is feasible, or even working from 
a overall common pool, but the principle of eliminating forum 
shopping was not negotiable as I remember it.
7.1 The again uses "website" and does not include the concept of the 
domain name pointing to a URS provider splash page saying that the 
domain was suspended (and perhaps saying how to remedy this if the 
registrant never answered). I suggest replacing "If the complainant 
prevails, the domain name should be suspended for the balance of the 
registration period and would not resolve to the original website." 
with "If the complainant prevails, the domain name should be 
suspended for the balance of the registration period and would not 
resolve to the original IP address. Instead, it would point to the 
URS provider which will provide an informative web page and no other services."
8.1 This section should be removed as the content has been moved 
earlier in the document.
8.3 The parenthetical is incorrect and should be deleted (it applied 
to the late answer and not the appeal). In the middle sentence, 
"down" should be replaced by "suspended" (both occurrences). The last 
sentence should be changed from "If the domain name resolves because 
of a decision in favor of the Registrant, it continues to resolve." 
to "If the domain name resolves to the registrant's IP address 
because of a decision in favor of the Registrant, it continues to resolve."
NOTE: There are two sections numbered 8.3

8.4 I suggest that the first sentence about the ombudsman be deleted. 
It's presence will only cause extraneous comments, and according to 
Amy, it was just a suggestion that could be examined. We did not 
specify what happens if the two parties cannot agree on which form of 
panel to use.
9.1 Do we need to specify who will be judging whether there was abuse 
(will the Examiner be asked in each case if in his/her judgement t 
here was abuse?). Regardless of who judges, do we need to specify who 
will track this. Since there will likely be more than one URS 
provider, who will track the union of all URS cases?
9.1 (the second one!) If I understand the intent, the word "panelist" 
should be replaced by "Examiner". And we have a similar problem 
regarding who judges and who tracks.
10.1 I don't think the intent of our consensus was to just say there 
will be no automatic termination after one year. I think that 
replacing "one year" by "a set period of time" reflects what was said.
Annex IX - Trademark Notice

The language in the square brackets is confusing. Certainly, local 
language should not be used only in the case of IDN.
Annex X - Evaluation

The term "respondent" is used here and was never used in the original 
document (we always used "registrant".
The first paragraph refers to "the following factors". I think that 
these are later referred to (under Issuing a Decision) as the three 
elements. We should be consistent.
Numbering the sections of this annex would be nice if time permits.