RE: [gnso-sti] Review of draft recommendations - v2
Alan, Thank you very much for your detailed comments and your review of the final version of the document - they have been really helpful. NCSG generally agrees with your comments, with some exceptions. Where KK are my comments which have been discussed with the NCSG/STI group. Best wishes Konstantinos -----Original Message----- From: owner-gnso-sti@xxxxxxxxx [mailto:owner-gnso-sti@xxxxxxxxx] On Behalf Of Alan Greenberg Sent: Monday, December 07, 2009 3:22 AM To: GNSO STI Subject: [gnso-sti] Review of draft recommendations - v2 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." KK: Agreed 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? KK: Generally, it might be a good idea to keep the original language. It appears that this language is also compatible with the IRT recommendation: " The IP Clearinghouse must be operated by a neutral service provider that is not currently in a direct contractual relationship with ICANN to provide domain name registration services including that of a gTLD registry, registrar or other technical provider of domain name services to a gTLD registry or registrar. The IP Clearinghouse must commit to a strict code of conduct that, among other things, requires it to provide equitable access to its services by all entities seeking to use the IP Clearinghouse".(page 14) 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. KK: Agreed 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. KK: Agreed 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". KK: Generally, it might be important to keep the original language as well here for two reasons: (i) providing the relevant background of these safe harbors is vital in order to gain the trust of the wider community. The STI did not come up with this language, rather there is precedent, based on the successful Nominet system;(ii) most of the language for the safe harbors has been copied verbatim from the language of Nominet's policy and due to copyright issues it might be necessary to keep reference to the Nominet system. 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." KK: Agreed 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)." KK: Agreed 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. KK: We suggest we keep the original language for this section. 5.1 For clarity, at the end of the recommendation, add "prior to being declared in default" KK: We also suggest we keep the original language for this section. 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." KK: I see your point here Alan, but I believe that this becomes a problem only if these two subsections are read outside the context of section 5. We suggest keeping the original language here as well. 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." KK: Agreed 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". KK: Agreed. 6.2 "with legal background" should be deleted as it is redundant and included in 6.3. KK: Here we suggest we keep the original language. 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. KK: NCSG has suggested we add 'trained and certified in URS proceedings'. 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. KK: But isn't the case that ICANN will inevitably be part of this process, being in a contractual relationship with the URS service providers? We suggest we keep the original language. 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." KK: Agreed 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." KK: For issues of clarity we suggest we keep the original language. 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. KK: Agreed. 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? KK: My understanding and the practice of the UDRP has been that the examiner (or panelist for the purposes of the UDRP) examines abuse on a case-by-case basis. If during the examination process the examiner feels that abuse has taken place, s/he should mention it and take into consideration when rendering the decision. 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. KK: Agreed 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. KK: We suggest we keep the original language. We have discussed the scenario of what will happen should the UDRP not work properly after a year - ICANN will either have to fix it or pull the plug. 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.