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Re: [Fwd: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6]
- To: jon.bing@xxxxxxx
- Subject: Re: [Fwd: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6]
- From: Robin Gross <robin@xxxxxxxxxxxxx>
- Date: Sun, 01 Jul 2007 19:30:22 -0700
Hi Jon,
I agree that registries have to follow laws that apply to them and so it will not always be a US standard of free expression. All we are saying is that ICANN should be neutral with respect to expression.
The registry concern you mention shouldn't be a problem because the only registry that serves up ".string" will be the applicant. Registrars can choose not to serve the string, as can ISPs. So a decision by ICANN to permit a string that others don't like doesn't force anyone to do anything, except for IANA, which has to put it in the root.
Thanks,
Robin
jon bing wrote:
Robin Gross wrote:
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".
I am a strong supporter of the freedom of expression, but occasionally
it occur to me that it may be understood in detail differently than in
the US tradition, which I presume is the background the cited
statement was made on. The use of a string as the name of a domain is
not only an expression of the person selecting and putting forwards
the string, it also imply the co-operation of others (registries,
ICANN etc), and the legal liability and ethical responsibility of
these persons, who also has a freedom of expression, including the
negative side of this freedom, not to utter the expression. In my
opinion this make arguments based on the freedom of expression of
somewhat lower priority than if the expression was primary (did not
presume the co-operation of others). This is just a footnote, not
directly addressing the main point in Robin’s cited argument.
bing_signatur*Jon Bing*
Bøgata 7,NO- 0655 Oslo, Norway
T +47 22 67 54 00
F +47 22 67 74 78
M +47 909 67 659
jon.bing@xxxxxxx
-----Original Message-----
From: owner-gtld-council@xxxxxxxxxxxxxx
[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross
Sent: 1. juli 2007 06:05
To: gtld-council@xxxxxxxxxxxxxx
Cc: Milton Mueller
Subject: [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
>
> I 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 am
>> correct, then we need to include both in this recommendation and I
>> think
>> we 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. Any
>> unauthorized use, distribution, or disclosure is strictly
>> prohibited. If
>> you 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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