FW: IRT meeting London

[Milton L Mueller]

This is Jeff Neuman's response. although there are obviously disagreements, I think it's good to engage in dialogue.

Milton Mueller
Professor, Syracuse University School of Information Studies
XS4All Professor, Delft University of Technology
------------------------------
Internet Governance Project:
http://internetgovernance.org<http://internetgovernance.org/>



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From: Neuman, Jeff [mailto:Jeff.Neuman at neustar.us]
Sent: Thursday, July 16, 2009 1:02 PM
To: Milton L Mueller; NCUC-DISCUSS at LISTSERV.SYR.EDU; Richard Tindal
Cc: Neuman, Jeff
Subject: RE: IRT meeting London

Thanks Milton for forwarding this on to me.   Milton, I am not on the NCUC list, so can you please forward this to me.  This is my personal view only and not necessarily the view of my company or the IRT.

It seems like there may have been a misunderstanding and I would be happy to explain from my point of view what happened.

When Konstantinos got up to the mike, there was a very long line of potential speakers behind him.  He began reading from a pre-prepared statement criticizing the IRT and its report without pausing to give anyone an opportunity to address any of the issues point by point.  This in my mind demonstrated a lack on Konstantinos' part of wanting to engage in a dialogue, but rather just get his statement out there.  After reading the first couple of sentences, and after I believe Nick Wood, the moderator, asked Konstantinos a question about his comments, I did interject.  I merely asked Konstantinos if he was reading the exact same statement that Kathy read into the record in NY.  Konstantinos nodded yes.  At that point, I did not ask him to speed up or stop talking, but rather asked if he could summarize the points, rather than reading the long pre-prepared statement.   This would not only cut down the time of the statement (to ensure everyone got their opportunity to speak), but allow us to ask questions, which we did.

Konstantinos also neglected to include in his report back that I too engaged him in a dialogue about the notion of multiple clearinghouses.  In fact, I explained exactly the rationale which the IRT used in its report and why on balance we did not recommend having multiple clearinghouses for the first round of TLDs.  I explained to Konstantinos that since registries would have to technically interact with all clearinghouses, a new protocol may have to be developed to allow for that exchange of information from multiple providers.  After all, a brand owner would only go to one clearinghouse, but the registry would have to interact with them all (after first figuring out which clearinghouse contained the data that the brand owner used).  So, in essence, the registry would have to get registration data from a registrar and either collect additional information as to which clearinghouse a brand owner used or do a look up to get that information.  In either case, this may be doing something that is not currently provided for the EPP protocol.  It would require either an update to EPP or the development of such a new protocol. From my perspective, this  would not only take a long time, but would also have to go through a technical standards process review.  The IRT believed that this would inevitably delay the new TLD process (something that the NCUC does not want to see, at least according to its public statements).  Konstantinos nodded as if to understand and asked why we did not make that more clear in the report (which I believe is a valid point).  We could have made this more clear.

While I am commenting on the note below, let me also make the following points (which you can all hear by listening to the recording):


1.        I do not believe the IRT toned down its presentation at all.  It was mostly a different panel, with persons that have different styles.

2.       If you look at Richard Tindal's presentation, you will see that Demand Media actually supports the majority of the recommendations in their entirety (4 of the 7), supports the concepts of 2 others (including the URS) with some modifications, and only really opposes the GPML.  I have included Richard on this string to correct me if I am misstating (but I am actually reading the slide now).

So that's my side.  All I can do is give you an insight into what I was thinking when I made the statement I did.  You all in turn can interpret as you see fit.  Konstantinos - I know you don't know me well, and you probably view my as just another IP attorney defending the report, but I believe others in the NCUC know me (as Milton does).  Not only do I always listen to the NCUC, but I try my best to do what is right for the Internet community (especially with my work in the IRT).  I apologize if you took my statement as something it was not intended to be.  I hope this helps.

Thanks for reading and I would be happy to answer any questions from my own perspective.

P.S. - I did want to explain these points at the NCUC-sponsored breakfast in NY to Kathy, but although I rsvp'd wanting to go, I was told by Kathy that I would not be able to do so.  But we can go into that at a later time.

Best regards,

Jeffrey J. Neuman, Esq.: NeuStar, Inc.
Vice President, Law & Policy

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From: Milton L Mueller [mailto:mueller at syr.edu]
Sent: Thursday, July 16, 2009 11:58 AM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Cc: Neuman, Jeff
Subject: RE: IRT meeting London

Konstantinos
Very glad you could show up there, and thanks for making our views known.
I am really disappointed to hear that Jeff Neuman, who I always thought was a fair-minded person, interrupted and attempted to pre-empt your statement on the completely bogus grounds that he had heard it before. I've copied him on this message because I want to hear his side of the story.

Perhaps Jeff needs to be reminded that it's the public that supposed to be listening to and considering this proposal, not the usual ICANN insiders, and the fact that he heard it before doesn't mean anything. Indeed, if "we've heard this before" was a valid reason to try to shut someone up, then maybe the whole IRT panel should have been asked to shut up, because we've been hearing the same stuff from them for ten years. It's really bad form but hey, I guess when policy proposals can't stand on the merits you have to try to make their critics look bad.

Milton Mueller
Professor, Syracuse University School of Information Studies
XS4All Professor, Delft University of Technology
------------------------------
Internet Governance Project:
http://internetgovernance.org<http://internetgovernance.org/>


________________________________
From: Non-Commercial User Constituency [mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Konstantinos Komaitis
Sent: Thursday, July 16, 2009 10:31 AM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: [NCUC-DISCUSS] IRT meeting London
Dear all,

Just back from the IRT meeting in London and let me share briefly with you what happened (very dizzy after so many hours on the train).

As in NY, the whole morning was spent at presentations by the IRT panel, WIPO, ICANN and some individuals; that took us to lunch and after that the panel gave the floor for statements/questions.

Presentations: the IRT panel seemed to be toning down a bit and I think that had to do with the reaction they received in NY. They said of course the same things over and over again and how great the report is, but they made it clear that this report does not represent the views of ICANN (implying that we should not target ICANN) and that also we need to remember the short time-frame within which the team operated.
Richard Tindal of Demand Media spoke against most of the report. So did, Paul Keating, who focused on the URS and slammed it down.

Then the statements came. Many of the people who grabbed the microphone were in favour of the report - the Danish law society, Nestle, some Registrars, etc. Nothing surprising there; what was surprising - to me at least - was the reaction that I received during our statement statement. I was abruptly interrupted by Jeff Neuman, who asked whether it was necessary to read the NCUC statement, since it was along the same lines as Kathy's in New York. Of course, I continued reading the statement telling Jeff that the panel might be the same as in NY but the audience is not; more questions came from the ICANN staff as well as from Fabricio Vayra about our statement (mainly about the IP Clearinghouse and GPML). After many interruptions, I finally managed to get through the whole thing.

Rebecca gave a great statement as did some other people (John Levine for instance). Overall, I realized that the IRT team is at a great advantage. Hearing them speaking, I though that if I didn't know any better, I would think that they are doing a great job under difficult circumstances. That is how the public saw it at least. We need to continue with this fight and we need to get as many voices as possible. In London there were not enough and the IRT is gaining ground.

The good news is that I was approached by a reporter who wants to do a piece on it for the forthcoming issue of World Trademark Review (mainly targeting trademark lawyers) and I had a brief exchange of email with a guy from the economist who also showed some interest. I will let you know about these two things.

Thank you.

Best
Konstantinos

Statement:

Good afternoon. My name is Konstantinos Komaitis and I am here both in my capacity as an academic with research experience in domain name regulation and as a member of ICANN's Non-Commercial User Constituency. Above all, however, I am here as a registrant who has serious concerns about this report and how it makes all non-commercial users look bad.

Here are in brief our concerns:
IP Clearinghouse: it falls outside the scope and mission of ICANN. Putting ICANN in charge of this massive database, transmogrifies and gives privileges to ICANN currently enjoyed by national trademark offices. It is of great concern that in the years to come this database could be abused and/or misused against future domain name registrants. The idea is valuable but its presentation is problematic. Over the past ten years, the market has shown that it can provide solutions - and this is one need that we can trust the market to meet.
GPML: it changes the face of traditional trademark law. Currently, there is no international consensus on which marks are worthy of global protection and WIPO has refrained from producing such list. The list seeks to protect marks not according to their associated goodwill, as has always been the case in trademark law, but merely as strings of characters regardless of use or relevance. This is not what trademark law is about.
URS: is a dangerous provision and can set a treacherous precedent. It should be expected that the URS will replace the UDRP with a much faster, cheaper and fundamentally unfair process. Similar to the current UDRP culture, the URS is a process open to abuse and procedural injustice. The conceptual basis and the language of the URS is reminiscent to the conceptual basis and language of the UDRP - so why not amend the existing regime?
We also strongly oppose the thick WHOIS and the post-delegation dispute mechanism, but I am running out of time.
The IRT report states: "The recommendation should protect the existing rights of trademark owners, but neither expand those rights nor create additional legal rights". The IRT report does not conform with this; it fails to see trademarks as limited rights as it fails to incentivize registrants. On the contrary, it expands the rights of trademark owners beyond their intended purpose.
Thank you.





--
Dr. Konstantinos Komaitis,
Lecturer in Law,
GigaNet Membership Chair,
University of Strathclyde,
The Lord Hope Building,
141 St. James Road,
Glasgow, G4 0LT,
UK
tel: +44 (0)141 548 4306
email: k.komaitis at strath.ac.uk
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