RE: [Fwd: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6]

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Mawaki,

Please don't think that we are not interested.  Like you, I think all of
us are just trying to explore ways to reach consensus.

Chuck Gomes
 
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> -----Original Message-----
> From: owner-gtld-council@xxxxxxxxxxxxxx 
> [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Mawaki Chango
> Sent: Sunday, July 01, 2007 7:45 PM
> To: robin@xxxxxxxxxxxxx; gtld-council@xxxxxxxxxxxxxx
> Cc: 'Milton Mueller'; Ray Fassett
> Subject: Re: [Fwd: RE: [gtld-council] modifications to new 
> gTLD recommendations #3 and 6]
> 
> I've been trying to help, but I wonder if anyone is really 
> interested :)
> 
> The classification that Ray points to -- "string" criteria, 
> "applicant" criteria, and "process" criteria -- is 
> interesting and tempting. I understand that might have been 
> the committee intention. I believe however that the logical 
> fix proposed for
> rec.#3 does not at all overide that categorization and the 
> nature of that rec., i.e. a string criterion.
> 
> Indeed the quintessence of this rec. is the string, and both 
> its _proposal_ and its _rejection_ must be subject to the 
> existing rights of the others, be it trademark or freedom of 
> expression, etc.
> 
> The confusion came from the fact that people initially talked 
> about process or string evaluation. We should strike out of 
> our mind those expressions; this is not at all a process, but 
> something very punctual, one clearly delineated element 
> although that element may be one inside the overall 
> evaluation process.
> _Proposal_ and _rejection_ are at same level of analysis, 
> both equally tied to the string itself.
> 
> That symetry is needed in rec.#3 because it expresses well 
> the balance that is sought here. Moving one part of that 
> balance in another rec. (e.g., rec.#1) makes it less 
> meaningful while the
> rec.#3 itself will lose its equilibrium.
> 
> Now, it's up to you virtuosos of the English language to 
> draft and wordsmith this rec.#3 as you see fit, but I just 
> figure that a phrase like "Proposal and rejection of a 
> string, etc." may clarify and feature there to address Ray's 
> concern that this rec. is really about the fate of the 
> string, from both pro's and con's perspectives.
> 
> My 2 cents,
> 
> Mawaki
>  
> 
> --- Robin Gross <robin@xxxxxxxxxxxxx> wrote:
> 
> > Only a minor wording change is sought so Rec #3 makes sense.
> > 
> > The current recommendation - which does attempt to protect free 
> > expression - should be logically worded.
> > 
> > The way #3 is currently worded is to say that a string may not 
> > infringe existing legal rights.
> > 
> > The problem is that a string cannot infringe free 
> expression, but the 
> > rejection of a string could - and that is what the 
> recommendation is 
> > trying to guard against.
> > 
> > If Rec. #1 is the only place we can address process 
> concerns, perhaps 
> > we should put our free expression concern there.
> > 
> > Thanks,
> > Robin
> > 
> > 
> > Ray Fassett wrote:
> > 
> > >Page 30 of the Final Report Part A:
> > >
> > >http://gnso.icann.org/drafts/pdp-dec05-fr-a-18jun07.pdf
> > >
> > >states that "Three main elements have emerged in relation to
> > string criteria
> > >- "string" criteria, "applicant" criteria, and "process"
> > criteria.
> > >
> > >Recommendation 1 pertains to process criteria:
> > >
> > >"The evaluation and selection procedure for new gTLD
> > registries should
> > >respect the principles of fairness, transparency and
> > non-discrimination."
> > >This recommendation cites relevant sections of ICANN's
> > mission and core
> > >values in support of this committee recommendation.
> > >
> > >The work of the committee produced Recommendations 2, 3, 4, 5
> > & 6 that
> > >pertain to "string" criteria, not "process" criteria.
> > >
> > >I believe the NCUC is confusing Recommendation 3 to be about
> > "process"
> > >criteria when this was not the original intent or purpose for
> > this committee
> > >recommendation.  While it is tempting to word smith and
> > outright challenge
> > >high level recommendations at this late stage dating back to
> > December 2005,
> > >I believe it is important for all participants to be very
> > familiar with the
> > >comprehensive documents produced by staff that underlie the
> > current status
> > >of the committee recommendations and implementation
> > guidelines (notably
> > >Final Reports A & B).  
> > >
> > >Recommendation 1 pertains to "process" criteria.  I do not
> > believe we should
> > >be debating at this stage that the origin of Recommendation 3
> > pertains to
> > >"string" criteria.  While I do not want to speak for Liz, I
> > can agree that
> > >morphing Rec 3 into "process" criteria adds subjectivity that
> > was not
> > >originally intended by the committee from this
> > recommendation.  In this
> > >light, I see Liz's comment as facilitating the discussion at
> > this late stage
> > >based upon comprehensive documentation produced by ICANN
> > staff of the
> > >committee's work.
> > >
> > >Ray Fassett
> > >
> > >
> > >-----Original Message-----
> > >From: owner-gtld-council@xxxxxxxxxxxxxx 
> > >[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin
> > Gross
> > >Sent: Sunday, July 01, 2007 12:05 AM
> > >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@dul1wnexmb01.vcorp.
> ad.vrsn.co
> >m>
> > 
> > ><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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> > >3:10 PM
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> > >
> > >
> > >  
> > >
> > 
> > 
> 
>