[Fwd: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6]
-------- Original Message --------Subject: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6
Date: Sat, 30 Jun 2007 23:16:04 -0400 From: Milton L Mueller <mueller@xxxxxxx> To: <robin@xxxxxxxxxxxxx>, "Liz Williams" <liz.williams@xxxxxxxxx> CC: Mawaki <kichango@xxxxxxxxx>, Norbert Klein <nhklein@xxxxxxx>References: <046F43A8D79C794FA4733814869CDF0701E637AF@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx> <9C1CACD2-472C-4B62-837B-D87D5F1EFF33@xxxxxxxxx> <4686D958.7050906@xxxxxxxxxxxxx>
Can you forward to the Council list, please?I am not sure what Liz is driving at by saying that "ICANN itself would become part of the objection process." Does she mean that ICANN would be able to initiate objections to TLD proposals? If so, that is clearly not what was intended nor is it implied by the phrase. Does she mean that people could object to the outcome of an ICANN gTLD string selection process because it violated prior rights? If so, this can and probably will happen regardless of whether Rec. 3 includes the phrase "string selection process" or not. There will always be debate about whether the actual outcome of the process has met the requirements and constraints of the policy. E.g., a trademark owner might complain that their prior rights in a string were not respected by the process and take ICANN to court.
We need that amendment because, as we noted in San Juan, it is impossible for a "string" by itself to violate free expression rights. It is only the _rejection_ of a string that can do so. If an approval or evaluation process rejects strings that people should have a right to use, it raises free expression concerns. Therefore, to accommodate free expression guarantees, one must refer to "string selection process" or something like that. There was talk in San Juan of substituting the word "approval" for "selection." That might make it clearer. We might also say "the rejection of a string". Liz is flat wrong that greater "subjectivity" is introduced. The level of subjectivity is the same with or without the amendment. A "string" does not jump out and say, "I violate trademark rights!" Whether it does or not must be judged and interpreted. Likewise, whether or not a decision to reject a string violates free expression rights requires the same kinds of judgments. Inserting that term does not change the level of subjectivity in the slightest.Finally, it is unfortunate that this needs to be said, but we do need to insist that under the bylaws, policy in the GNSO is made by representatives of constituencies, not by staff. Staff is a facilitator and administrator, not a stakeholder. When constituencies agree--as they seem to have done on this phrase -- it is highly inappropriate for staff to insert their own personal opinion.
-----Original Message-----From: Robin Gross [mailto:robin@xxxxxxxxxxxxx] Sent: Saturday, June 30, 2007 6:30 PM
To: Milton L Mueller; Liz Williams Cc: Mawaki; Norbert Klein Subject: Re: [gtld-council] modifications to new gTLD recommendations #3 and 6 Liz,ICANN staff should not be urging council members to reject NCUC proposals - at least not if you want to claim "neutrality" with a straight face.
Robin Liz Williams wrote:
ColleaguesI would urge you to reconsider carefully the second part of this recommendation. Including the second part means that ICANN itself would become part of the objection process. I am not sure that this is what you intend or how that would be measured. Revising the recommendation on the basis of the recommendation below would cause some significant subjectivity being introduced into the process about "infringement and unfairness". Of course ICANN must, in the selection process, operate in accordance with its bylaws and mission and core values.We have spent a great deal of time on ensuring that we have a pre- published, objective process that is about the applicant and the string.Kind regards. Liz ..................................................... Liz Williams Senior Policy Counselor ICANN - Brussels +32 2 234 7874 tel +32 2 234 7848 fax +32 497 07 4243 mob On 29 Jun 2007, at 15:59, Gomes, Chuck wrote:Regarding Recommendation 3, it seems to me that there are two key elements: 1) strings that may infringe existing legal rights and 2) the selection process that may infringe existing legal rights. If I amcorrect, then we need to include both in this recommendation and I thinkwe started working in that direction yesterday. Chuck Gomes "This message is intended for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Anyunauthorized use, distribution, or disclosure is strictly prohibited. Ifyou have received this message in error, please notify sender immediately and destroy/delete the original transmission."-----Original Message----- From: owner-gtld-council@xxxxxxxxxxxxxx [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross Sent: Thursday, June 28, 2007 2:14 PM To: gtld-council@xxxxxxxxxxxxxx Subject: [gtld-council] modifications to new gTLD recommendations #3 and 6 NCUC proposes the following modifications to new gTLD recommendations #3 and 6: Rec. 3: The process for selecting strings must not infringe existing legal rights that are enforceable under internationally recognized principles of law or the applicant's national law. Examples of these legal rights that are internationally recognized include, but are not limited to, rights defined in the Paris Convention for the Protection of Industrial Property (in particular trademark rights), the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (in particular freedom of expression rights). Rec 6: Strings must not be contrary to legal norms that are enforceable under generally accepted and internationally recognized principles of law. Taking into account the aforementioned limitations, no application shall be rejected solely because the applicant or string is associated with an unpopular or controversial point of view.
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