RE: [bc-gnso] council agenda for Jan 13 - Motion #5 RAP

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

In regard to UDRP reform, ICA has been on the record for some time as being in 
favor of initiating a careful and deliberative process to review its 
functioning over the first decade of operation and then consider balanced 
reforms. For example, we have expressed the view to ICANN  that an expert and 
neutral third party should study the state of Internet-related trademark law 
jurisprudence in major jurisdictions and the compare it to UDRP standards and 
practice, with the aim of ensuring that they are not diverging. It's not clear 
to me why the IPC is so dead set against even initiating a conversation 
because, regardless of when new gTLDs are launched or the ultimate RPMs that 
accompany them, the majority of cybersquatting for the foreseeable future will 
occur at .com and other incumbent TLDs. So, while I have no plans to bang the 
drum on this matter, I would hope BC members would continue to think about how 
a UDRP reform effort might be responsibly undertaken and what benefits could 
accrue from it.

Also, as I noted in yesterday's call, the issue of substantive reform of UDRP 
decision standards should be thought of separate from the procedural issue of 
establishing standard agreements between ICANN and all UDRP providers to better 
ensure uniformity and predictability in decisions regardless of which 
arbitration forum is handling a case. The BC is on record as favoring that 
since its comment several months ago in regard to the proposed provider based 
in Jordan.

Finally, with all respect to Martin, I would hope that if and when the BC 
favors getting into the subject we would not set preconditions such as 
"safeguards/ring-fences existing policy elements as a minimum requirement", 
especially as I'm not sure what that means. Both complainants and registrants 
have legitimate concerns about the current administration of the UDRP - and 
don't forget that brand owners are sometimes the targets of UDRPs - and any 
reform process should be open to objectively evaluating all those concerns at 
its inception.



From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
martinsutton@xxxxxxxx
Sent: Tuesday, January 11, 2011 7:36 AM
To: Berry Cobb
Cc: 'bc - GNSO list'; owner-bc-gnso@xxxxxxxxx
Subject: RE: [bc-gnso] council agenda for Jan 13 - Motion #5 RAP


All,

I had to abandon the call half-way through yesterday but after reading the GNSO 
motions and the subsequent exchanges below, I would like to add brief comments.

My concern is that some recommendations have been discarded completely within 
this motion, which is not acceptable.  There needs to be some follow through so 
that even if the council relegates items to a lower priority, that they remain 
on the 'to do' pile or a clear reason provided to ditch any recommendations 
completely.

In terms of the prioritisation, I would prefer to see the leading effort and 
resource applied to the Best Practices effort against Malicious Use, as this 
achieved unanimous consensus within the RAP WG.

With regards to the UDRP, I believe this does need to be reviewed for 
improvements now that it has been in place for a number of years untouched but 
I also recall that when the RAP WG began looking at these issues a couple of 
years back, it was anticipated the new gTLDs would have been launched well 
before this type of review could be undertaken, with the advantage of seeing 
how the new landscape impacted on the existing policy and processes.  This is 
obviously not the case and the work would potentially clash with the new gTLD 
launch activities, which needs to be taken into account before proceeding with 
a PDP. I also appreciate the concerns about UDRP dilution which is a real 
threat and wonder if the BC can work with the IPC to consider alternative 
wording for a motion that takes this forward in a reasonable timeframe but 
safeguards/ring-fences existing policy elements as a minimum requirement?

Regards,

Martin

Martin C SUTTON
Group Risk
Manager, Group Fraud Risk and Intelligence | HSBC HOLDINGS PLC HGHQ
Group Security & Fraud Risk
8 Canada Square,Canary Wharf,London,E14 5HQ,United Kingdom
________________________________________________________________

Phone.     +44 (0)20 7991 8074 / 7991 8074
Mobile.     +44 (0) 7774556680
Email.       martinsutton@xxxxxxxx<mailto:martinsutton@xxxxxxxx>
________________________________________________________________

"Berry Cobb" 
<berrycobb@xxxxxxxxxxxxxxxxxxx<mailto:berrycobb@xxxxxxxxxxxxxxxxxxx>>
Sent by: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx>

Jan 10 2011 19:50

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RE: [bc-gnso] council agenda for Jan 13 - Motion #5 RAP





I guess I was a sleep at the wheel this morning for the call.  I had not seen 
the GNSO motions prior to our call, and after hearing the discussion this AM, I 
knew something seemed suspicious.  The early morning fog prevented me from 
responding.  Thanks to Mike for posting this to the list.

As this motion #5 on RAP stands, I support a vote of "NO".  At the very least, 
this motion does not consider all the recommendations of the RAP and it does 
not make any reference to all the other RAP recommendations.  Why would the 
remainder of the RAP recommendations be omitted?  I am not familiar with how 
the Council reviews, submits motions, and votes on WG recommendations, but I 
find this current motion creating a gap and perhaps jeopardizing the WG 
process.  Being a member of the RAP-IDT, helping to create a priority list, I 
guess I never expected a motion resulting in a "hunt & peck" exercise.  Lastly, 
I do not want to speculate on the motivation of the Contracted Parties, who are 
the ones that submitted and seconded this motion, but I do think Mike touches 
on a fair question of why the current motion bypasses higher ranked RAP 
recommendations, like the Best Practices effort on Malicious Use (which 
received unanimous consensus by the RAP WG).  Swiss cheese with lots of holes 
is my is my gut feel.

WRT to the Fast Flux motion & recommendations, I cannot comment as I did not 
participate and this was before my time at ICANN.  However, one result of that 
WG also contains a "best practices" recommendation.  While I do not want to 
delay the FF efforts, I believe there to be more momentum for the RAP Best 
Practices Recommendation to act as the pilot for Best Practices Efforts within 
the ICANN\GNSO span of control.

WRT to the UDRP recommendation from RAP.....I agree with Mike that this will be 
fight, although that was not prevalent when the WG developed Unanimous 
Consensus on this recommendation.  The UDRP recommendation priority created a 
lot of friction within the RAP-IDT.  And if I recall correctly from our BC 
session this morning, a few of our members support delaying this PDP on UDRP.  
I will remind that the BC did submit a position on the RAP Interim Report 
supporting this recommendation, although no formal position was established on 
the RAP Final Report.  Personally, I see fractures of the UDRP on both sides 
(brand holders vs domain investors).  It is time to review, update, and improve 
the UDRP.  I support its current prioritization as defined by the RAP IDT.  In 
same breath, if this will put us at odds with the IPC, I can also support 
saving this battle for another day.

To add clarification to Mike's comments about the RAP Uniformity of Contracts 
recommendation.........  The conundrum about this recommendation is that it 
only received "strong support but significant opposition" during the Pre-PDP WG 
efforts.  However, within the RAP-IDT efforts to prioritize all the 
recommendations, it received a third or fourth place priority over "unanimous 
consensus" RAP recommendations.  The RAP-IDT deliberated this issue some, and 
the conclusion is that the GNSO council should address this by first voting the 
UofC recommendation up or down first and then figure out if and how to move 
forward.

Bottom line, I recommend the BC & our Councilors support the priority 
assignment recommendations from the RAP IDT team and any motion presented to 
the GNSO Council about RAP efforts should be all encompassing.  Vote each RAP 
recommendation Up or Down, then assign the "UP" recommendations to the 
Prioritization Queue for WGs, and build a sense of urgency to get things moving 
along.

Thanks, B

Berry Cobb
Infinity Portals LLC
berrycobb@xxxxxxxxxxxxxxxxxxx<mailto:berrycobb@xxxxxxxxxxxxxxxxxxx>
http://infinityportals.com<http://infinityportals.com/>
720.839.5735

From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Mike Rodenbaugh
Sent: Monday, January 10, 2011 7:31 AM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] council agenda for Jan 13

Thanks Marilyn for forwarding, I guess I've been deleted from the Council 
list... so will ask to be added again.

I have some concern about the resolutions re Fast Flux and especially re 
Registration Abuse Policies.  I think folding the FF recos into the RAP recos 
is ok in concept, but we can see that the contract parties are trying to bury 
that portion of the work re 'best practices'.  It was identified as the top 
priority after the two 'low hanging fruit' items identified by the 
RAP-Implementation Drafting Team.  Yet, the motion addresses only those two 
items and the UDRP review, which was identified as 3d priority.

I know the IPC will vehemently fight against UDRP review now.  My strong view 
is it is not time for that fight yet either, it will be a big fight... and that 
the non-controversial yet difficult Best Practices work should be done first as 
recommended by the Implementation Team, and indeed that work might help to 
inform the UDRP review effort.

Also Item IV of the RAP-IDT recos, Uniformity of Contracts, is a key issue for 
all non-contracting party stakeholders.  By mass in RAP-IDT, the contracting 
parties got a low priority, but from our perspective it should be a bigger 
priority that UDRP review.  At minimum, there should be a plan to start that 
work, as well as the Best Practices work, before any agreement on UDRP review 
is made.

Curious how other members, particularly those that have been active in the RAP 
group, thing about these motions pending before Council.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1 (415) 738-8087
http://rodenbaugh.com<http://rodenbaugh.com/>

From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Marilyn Cade
Sent: Monday, January 10, 2011 6:47 AM
To: bc - GNSO list
Subject: [bc-gnso] council agenda for Jan 13


http://gnso.icann.org/meetings/agenda-council-13jan11-en.htm

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