RE: [gtld-council] proposed new Rec. #21

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

Thanks much Mawaki.  That helps me a lot.

I believe that the wording revision that Bruce recently sent covers what
you say.  Your thoughts?

Chuck Gomes
 
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> -----Original Message-----
> From: Mawaki Chango [mailto:ki_chango@xxxxxxxxx] 
> Sent: Tuesday, July 03, 2007 9:43 PM
> To: Gomes, Chuck
> Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> Subject: RE: [gtld-council] proposed new Rec. #21
> 
> Chuck,
> 
> That last point relates to my previous post you said you 
> concur with, particularly the paras. 1, 2, 3 in its last 
> part. This is not about any specific phase of the application 
> review process (ARP). The question is from the first to the 
> last step of the ARP, does ICANN reserve the right to reject 
> an application string for reasons other than the stable 
> operation of the DNS (technical criteria)? If so, the intent 
> and substance of #21 apply to ICANN;  but if any such 
> decision about strings is to be taken _only_ by a dispute 
> panel _in case_ of objection/challenge, then #21 will only 
> apply to the dispute panel or resolution mechanism. 
> 
> Either way, the substance of #21 is needed, as we all agreed 
> in San Juan, plus additional clarification in the latter -- 
> re. "if any such decision about strings is to be taken _only_ 
> by a dispute panel _in case_ of objection/challenge". I don't 
> seem to have seen any provision to that effect in this PDP, 
> but please correct me if I'm being betrayed by my memory.
> 
> The purpose of the whole point was to address your concern about
>  (not) exposing ICANN. Please, if necessary, refer to my 
> initial post as mentioned at the start of this message. 
> 
> Mawaki
> 
> --- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:
> 
> > Thanks Mawaki.
> > 
> > I don't understand your last point: "Except that we still haven't 
> > clarified whether ICANN's staff or board is entitled, within the 
> > framework of this policy, to make decisions about strings 
> outside the 
> > scope of the technical criteria provisions."  What part of the 
> > application review process are you talking about?  If you could 
> > provide an example or two, that might help.
> > 
> > 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: Mawaki Chango [mailto:ki_chango@xxxxxxxxx] 
> > > Sent: Tuesday, July 03, 2007 3:36 PM
> > > To: Gomes, Chuck
> > > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > > Subject: RE: [gtld-council] proposed new Rec. #21
> > > 
> > > Chuck,
> > > 
> > > I re-read your message with the subtraction you indicated,
> > and:
> > > 
> > > i) correction: please replace in my previous message every 
> > > occurrence of "expert panel" by "dispute panel," which is 
> > > more correct since I was trying to refer to your previous 
> > > mention of a panel in this process;
> > > 
> > > ii) yes, it appears we're shooting in the same direction:
> > the 
> > > need to balance the right base of a possible 
> > > challenger/plaintiff or any decision to reject a string with
> > 
> > > a right base applicable to the defendant (i.e. the tld
> > applicant.)
> > >  
> > > 
> > > Except that we still haven't clarified whether ICANN's staff
> > 
> > > or board is entitled, within the framework of this policy,
> > to 
> > > make decisions about strings outside the scope of the 
> > > technical criteria provisions. If we leave that undefined or
> > 
> > > vague, then we need to accept a language along the lines of 
> > > the proposed #21 (it all depends on who gets to make the 
> > > decision; if ICANN doesn't make the decision, then it will 
> > > not be exposed more than it already is.)
> > > 
> > > Mawaki
> > > 
> > > --- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:
> > > 
> > > > Mawaki,
> > > > 
> > > > I think I agree with everything you said.  Upon re-reading
> > 
> > > my message, 
> > > > I think I confused matters by saying "it seems important
> > to 
> > > make sure 
> > > > that we are explicit about how the dispute panels evaluate
> > all 
> > > > challenges."
> > > > By that I did not mean being explicit about implementation
> > 
> > > details but 
> > > > rather explicit in the policy statement to ensure that all
> > relevant 
> > > > rights contained in international principles of law should
> > 
> > > be applied 
> > > > in any rights based challenge.  I suggest you ignore the 
> > > second clause 
> > > > of my first sentence and focus on the rest of the message.
> >  
> > > I think it 
> > > > says things similar to what you said.
> > > > 
> > > > 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: Mawaki Chango [mailto:ki_chango@xxxxxxxxx] 
> > > > > Sent: Tuesday, July 03, 2007 12:55 PM
> > > > > To: Gomes, Chuck
> > > > > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > > > > Subject: RE: [gtld-council] proposed new Rec. #21
> > > > > 
> > > > > Now it seems to me that we are mixing implementation
> > > > language 
> > > > > with policy language. It seemed to me that the intent of
> > the
> > > > 
> > > > > policy we have agreed on, following NCUC-proposed
> > amendment,
> > > > 
> > > > > is to let the community know that decisions about
> > strings, 
> > > > > _if any_, will take into encount or will not infringe 
> > > > > pre-existing rights that are enforceable and widely
> > > > recognized.
> > > > > 
> > > > > "If any" is the key phrase.
> > > > > 
> > > > > Now of course, it depends on what level of the process
> > and 
> > > > > what entity/authority will get to make that decision, if
> > 
> > > > > relevant; this is a policy item under which that
> > authority 
> > > > > will have to work. It may be that in a "normal"
> > application 
> > > > > process and evaluation, there will not be at all the
> > need to
> > > > 
> > > > > make a decision about the string (because out of ICANN's
> > - 
> > > > > board and staff -
> > > > > purview) until an objection or challenge is filed. Then
> > and 
> > > > > only then, the relevant authority for string challenges
> > (an
> > > > expert
> > > > > panel?) will proceed under the guiding of this policy 
> > > > > recommendation. But we may not need this level of detail
> > in 
> > > > > the policy rule. A more general level of language such
> > as 
> > > > > "approval or rejection of a string must not infringe,
> > etc." 
> > > > > is clear enough and a good fit for a policy.
> > > > > 
> > > > > Now, if one wants to make sure that this is only a
> > challenge
> > > > 
> > > > > process issue, not ICANN's as organization (Board or
> > staff -
> > > > 
> > > > > and that's the meaning of the term 'ICANN' hereafter),
> > one 
> > > > > may want the new gTLD policy to make allowance for the
> > > > following:
> > > > > 
> > > > > 1. Make sure that it is clear in the overall new gTLD
> > policy
> > > > 
> > > > > that ICANN do not have to, and will not make decision
> > about 
> > > > > an application string, except for purely technical
> > reasons 
> > > > > related to the DNS operation;
> > > > > 
> > > > > 2. In that sense and as long as ICANN is concerned, any 
> > > > > string criteria policy pertains to technical creiteria
> > > > policy 
> > > > > and should be dealt with in the relevant policy
> > > > recommendations;
> > > > > 
> > > > > 3. Then and beyond the above, ensure that the
> > consideration 
> > > > > of any challenge/objection to the string by the relevant
> > 
> > > > > authority (e.g., expert panel?), while trying to do
> > justice 
> > > > > to the challenger (e.g., trademark holder) do not
> > infringe 
> > > > > the rights of the applicant whenever they exist and as 
> > > > > recognized under international principles of law.
> > > > > 
> > > > > In a nutshell, the best way to avoid further exposing
> > the 
> > > > > organization ICANN to string-related disputes is first
> > to 
> > > > > make it clear that it is not in the business of
> > approving or
> > > > 
> > > > > rejecting TLD strings per se. It then means these issues
> > > > will 
> > > > > be dealt with by a different and _independent_ mechanism
> > or 
> > > > > entity from ICANN, in conditions that are agreeable to
> > both
> > > > parties.
> > > > > 
> > > > > I'm not expressing any preference, but just exploring
> > the 
> > > > > logical options for what we want to achieve.
> > > > > 
> > > > > Mawaki 
> > > > >    
> > > > > 
> > > > > --- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:
> > > > > 
> > > > > > Hopefully our criteria for filing objections will be
> > as
> > > > clear as 
> > > > > > possible so we can minimize challenges that will not
> > have 
> > > > > merit, but 
> > > > > > the reality is that there will probably be some, so it
> > 
> > > > > seems important 
> > > > > > to make sure that we are explicit about how the
> > dispute
> > > > panels 
> > > > > > evaluate all challenges. If my understanding is
> > correct,
> > > > if 
> > > > > a rights 
> > > > > > challenge is submitted, the panel would evaluate the 
> > > > > challenge based 
> > > > > > on all rights that are based on international
> > principles
> > > > of 
> > > > > law.  For 
> > > > > > example, if a string was challenged because of IP
> > rights,
> > > > that 
> > > > > > challenge must be evaluated based not just on IP
> > rights 
> > > > > contained in 
> > > > > > international principles of law but also would be
> > weighed 
> > > > > relative to 
> > > > > > other rights contained in international principles of
> > law
> > > > to the 
> > > > > > extent that rights may conflict.  Is that consistent
> > with 
> > > > > what others 
> > > > > > think?
> > > > > > 
> > > > > > 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: Robin Gross [mailto:robin@xxxxxxxxxxxxx] 
> > > > > > > Sent: Tuesday, July 03, 2007 10:08 AM
> > > > > > > To: Gomes, Chuck
> > > > > > > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > > > > > > Subject: Re: [gtld-council] proposed new Rec. #21
> > > > > > > 
> > > > > > > Thanks Chuck.   Rec #21 does not create any
> > different 
> > > > > > > exposure for the 
> > > > > > > board than Rec #3 does.
> > > > > > > 
> > > > > > > We are trying to narrow the types of objections that
> > can
> > > > > > send 
> > > > > > > an applicant to an expert panel.  Those objections
> > based
> > > > 
> > > > > > > solely on viewpoint would not go an expert panel
> > because
> > > > > > that 
> > > > > > > would not respect existing legal rights.
> > > > > > > 
> > > > > > > Robin
> > > > > > > 
> > > > > > > Gomes, Chuck wrote:
> > > > > > > 
> > > > > > > >Thanks Robin.
> > > > > > > >
> > > > > > > >It seems to me that this wording may go counter to
> > one
> > > > of
> > > > > > the 
> > > > > > > >objectives we have pursued for a long time on the
> > New
> > > > gTLD 
> > > > > > > Committee, 
> > > > > > > >that is to attempt to not put the ICANN Board in a
> > > > > > situtation where 
> > > > > > > >they are overly exposed to risk.  I understand
> > Milton's
> > > > 
> > > > > > > point that it 
> > > > > > > >may be impossible to limit all risk in that regard
> > > > because 
> > > > > > > they are the 
> > > > > > > >overall coordinator of the process.  But I still
> > think
> > > > we 
> > > > > > > should try to 
> > > > > > > >minimize their exposure.  In that regard, would the
> > 
> > > > > > > following word work for you.
> > > > > > > >
> > > > > > > >"The expert panel tasked with evaluating any string
> > > > > > challenges filed 
> > > > > > > >must weigh an applicant's freedom of expression
> > rights
> > > > as 
> > > > > > > contained in 
> > > > > > > >internationally recognized principles of law."
> > > > > > > >
> > > > > > > >I suspect others may be able to word this better
> > than
> > > > me, 
> > > > > > > but my goal 
> > > > > > > >is focus on the what the expert panel would need to
> > do
> > > > > > rather than 
> > > > > > > >focus on the over all string selection process.
> > > > > > > >
> > > > > > > >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: Tuesday, July 03, 2007 8:42 AM
> > > > > > > >>To: gtld-council@xxxxxxxxxxxxxx
> > > > > > > >>Cc: Milton Mueller
> > > > > > > >>Subject: [gtld-council] proposed new Rec. #21
> > > > > > > >>
> > > > > > > >>How about the following for a proposed new Rec
> > #21?
> > > > > > > >>
> > > > > > > >>"The string evaluation process must not infringe
> > the
> > > > > > applicant's 
> > > > > > > >>freedom of expression rights that are enforceable
> > > > under 
> > > > > > > >>internationally recognized principles of law."
> > > > > > > >>
> > > > > > > >>Thanks,
> > > > > > > >>Robin
> > > > > > > >>    
> > > > > > > >>
> > > > > > > >
> > > > > > > >  
> > > > > > > >
> > > > > > > 
> > > > > > > 
> > > > > > 
> > > > > > 
> > > > > 
> > > > > 
> > > > 
> > > > 
> > > 
> > > 
> > 
> 
>