ICANN staff proposal for further concessions to IPC-BC

Mon Dec 3 22:30:45 CET 2012

Quick comment:  I think the two views here may not be irreconcilable.

One can applaud the prevention of worse harm while still deploring the ad
hoc nature of the process.  I assume the procedural objection would not
undermine the ameliorated result per se?  (That is, it would not cause the
result to revert to a worse outcome.)

One can participate in a process on pragmatic terms without "legitimizing"
the process overall.  "Under protest" and such things.  I do think it's
worth clarifying this stance, officially and formally.

So Kathy: thank you for your efforts to hold back the tides.  We can even
thank Fadi for being personally even-handed, taking your account at face
value.  But we can still raise a stink about "ad hoc creep" and point out
that this sort of "crisis management" is not sustainable in the long run
if ICANN expects to retain some modicum of legitimate authority as an
institution.

Avri: I'm with you and Robin et al. on objecting to ad hoc processes being
used as a common method for conducting policy at ICANN.  Feels kind of
like Morsi in Egypt.  That said, it was probably better that Kathy
participated and prevented a worse outcome, in case this outcome in fact
does become the de facto policy, rather than not have a NC representative
involved.  The alternative would be to have a worse outcome.

The only way a worse outcome could be better is if it pours more fuel on
the fire of illegitimacy, but that's a risky gamble.  I'm not sure that
allowing an outrageous outcome would give us enough additional leverage to
delegitimize the process to throw out the result.  And if the worse result
were to stand, then we're screwed worse.

I think we should go ahead and voice strong objection to the ad hoc
process.  But that does not invalidate Kathy's efforts, which I think were
very useful nevertheless.  We need not allow her participation to be
interpreted as legitimizing the process, even on a "default" or "implicit"
or "de facto" basis, if we come out formally with a sharp protest.

Dan

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On Mon, December 3, 2012 6:38 am, Avri Doria wrote:
> Hi,
>
> I disagree that we all in the fact that we all do it.  They are the
> specialists in multiple bites of the apple.    We tend to make deals and
> stick to them.  It is nice that you want to be balanced an all, but there
> is no balance her.  We even tend to still to deals that get made that we
> disagreed with.  I guess we are just chumps.  but I reject this notion
> that we are all the same and we all do the same.  that is just not the
> case.
>
> So they only got a little bit extra on this pass.  Wait till the next
> pass, they will get more.  Of course they will stand a good chance of
> getting the rest after their side papers the comment period and we write
> one of two considered messages.
>
> It is good the conference was mostly technical since it was supposed to be
> 100% technical.
>
> And now people are saying we should not be critical of ICANN at this
> critical time.
>
> avri
>
>
>
>
> On 3 Dec 2012, at 17:39, Kathy Kleiman wrote:
>
>> There is another way to look at it, Alain and All,
>>
>> Fadi and ICANN needed to finalize the contracts re: creation of the
>> Trademark Clearinghouse and related services. In particular, ICANN
>> decided that IBM would offer the Registry/Registrar "query services" for
>> the "Trademark Claims" process -- that's basically the query of whether
>> a certain string of letters is registered as a trademark in the
>> Trademark Clearinghouse (commonly now called "the TMCH") and then
>> receive the information that will be passed onto registrants -- namely
>> the Trademark, Trademark Holder, Country of Registration, Class of
>> Registration, Description of Goods and Services.
>>
>> It was decided that Deloitte will be the first company to handle the
>> "validation process" of the TMCH. That's the whole intake process on
>> whether a trademark is valid, whether it is property certified, and in
>> certain cases, whether there is proof of use (for those countries which
>> don't require use before registration). Other companies may also
>> contract with ICANN to offer these services in the future - Deloitte is
>> the test or pilot of the system. It, in turn, provides and receives data
>> from IBM and the TMCH system.
>>
>> Fadi was very smart: he negotiated these contracts so that the ICANN
>> owns the data, not the service providers, and so that ICANN can audit
>> and review closely.
>>
>> So in this important time, as the specifications were being finalized,
>> the Intellectual Property and Business Constituencies brought some
>> additional requests.  Rather than just dealing with them behind closed
>> doors (which is what the IPC/BC wanted), Fadi quickly put together a
>> diverse group.  Completely balanced, no, but he was listening very, very
>> carefully to all sides (particularly ours).
>>
>> Fadi let the IPC/BC present, and we responded. What emerged was an
>> expansion, to some extent, of existing Rights Protection Mechanisms, but
>> not the dramatic new RPMs the IPC/BC wanted (and have always wanted). We
>> blocked the call for blocking one more time (as we have done since it
>> was first introduced in 2008).
>>
>> If you and others can see it clear to giving some time in this busy
>> period to write comments, it would be a good idea to oppose the TM+50,
>> the idea of going past "exact matches" to 50 variations of a Trademark,
>> that would be a good idea. The IRT and STI, as Mary has pointed out,
>> wanted exact matches. 50+ variations can go way beyond existing
>> trademarks into entirely new words. that's far beyond trademark
>> protection, and invades other's legitimate uses.
>>
>> But All, the vast majority of the meeting was about implementation --
>> and getting to final specs and a final contract with IBM and Deloitte.
>> Please read the Strawman and respond. But there's nothing evil here.
>> Constituencies advocate for their interests -- we do and they do.
>> If you have questions, please let me know.
>> I lived on the phone for these meetings 3 of the 4 days.
>> Best,
>> Kathy
>>
>>
>>
>>> Hi Alain,
>>>
>>> They tried that route, but the consensus did not go their way.  Instead
>>> of getting required RPMs they got the recommendation that every new
>>> gTLD should use a RPM and they produced a nice volume of possible RPMs
>>> that the applications could, and should, use voluntarily.  This was the
>>> first compromise they agreed to when they voted in favor of the new
>>> gTLD program.
>>>
>>> Little did we know at the time that compromise was just a stepping
>>> stone to future victory.
>>>
>>> So ever since they have been trying and trying and trying: IRT, STI,
>>> Fadi's strawman
>>>
>>> And each time they try, they get  a little close to what they want.
>>>
>>> Ignoring the multistakeholder process and using each compromise as a
>>> booster for the next assault is a tried & true IPC/BC method that has
>>> worked well at ICANN.  And thus they have no reason to stop using that
>>> technique.  Fadi is just the latest attack vector.
>>>
>>> We keep going this way, and IPC/BC will own our first born children, or
>>> at least the names we give them.
>>>
>>> avri
>>>
>>> On 2 Dec 2012, at 20:14, Alain Berranger wrote:
>>>
>>>> Thanks Robin. Dear all,
>>>>
>>>> Is it not the essence of a strawman solution to be imperfect and to be
>>>> subjected to further testing, consultations and brain-storming?
>>>>
>>>> Can we ask IPC/BC and/or ICANN staff why a strawman solution is chosen
>>>> as opposed to a Working Group or a PDP or whatever else ICANN uses to
>>>> establish policies? Maybe I should know the answer but I don't. I may
>>>> only speculate that time is of the essence for commercial interests
>>>> and  that the proposed strawman solution suits their purposes.
>>>>
>>>> Can any insights be shared from the IP lawyers in NCSG or anyone else
>>>> in the know?
>>>>
>>>> Thanks, Alain
>>>>
>>>> On Fri, Nov 30, 2012 at 3:42 PM, Robin Gross <robin at ipjustice.org>
>>>> wrote:
>>>> Dear All:
>>>>
>>>> ICANN has released its proposed strawman solution to give further
>>>> concessions to the IPC-BC.
>>>>   http://www.icann.org/en/news/public-comment/tmch-strawman-30nov12-en.htm
>>>>
>>>> ICANN presents this "solution" like it is the output of a community
>>>> process and consensus, but it is really just a bunch of executive
>>>> decisions based one-sided discussions, over the objections of many in
>>>> the community.
>>>>
>>>> Really disappointing how staff is undermining ICANN's bottom-up
>>>> multi-stakeholder policy process at exactly the time it should be
>>>> strengthening it.
>>>>
>>>> Robin
>>>>
>>>>
>>>> IP JUSTICE
>>>> Robin Gross, Executive Director
>>>> 1192 Haight Street, San Francisco, CA  94117  USA
>>>> p: +1-415-553-6261    f: +1-415-462-6451
>>>> w: http://www.ipjustice.org     e: robin at ipjustice.org
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> --
>>>> Alain Berranger, B.Eng, MBA
>>>> Member, Board of Directors, CECI, http://www.ceci.ca
>>>> Executive-in-residence, Schulich School of Business,
>>>> www.schulich.yorku.ca
>>>> Treasurer, Global Knowledge Partnership Foundation,
>>>> www.gkpfoundation.org
>>>> NA representative, Chasquinet Foundation, www.chasquinet.org
>>>> Chair, NPOC, NCSG, ICANN, http://npoc.org/
>>>> O:+1 514 484 7824; M:+1 514 704 7824
>>>> Skype: alain.berranger
>>>>
>>>>
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>>
>>
>> --
>>
>>
>