[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: Colleagues No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.476 / Virus Database: 269.9.14/882 - Release Date: 6/30/2007 3:10 PM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.476 / Virus Database: 269.9.14/882 - Release Date: 6/30/2007 3:10 PM |