ICANN staff proposal for further concessions to IPC-BC

Mon Dec 3 23:30:19 CET 2012

Can anybody tell me how to get off this mailing list?  I am not active, this kind of activity is way over my head, I have nothing to contribute.  

Keep up the good work fighting for our Freedom!!

EC Carolan

> Date: Mon, 3 Dec 2012 13:30:45 -0800
> From: dan at MUSICUNBOUND.COM
> Subject: Re: [NCSG-Discuss] ICANN staff proposal for further concessions to IPC-BC
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> 
> 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
> 
> 
> -- 
> Any opinions expressed in this message are those of the author alone and
> do not necessarily reflect any position of the author's employer.
> 
> 
> 
> 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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> >>
> >>
> >> --
> >>
> >>
> >

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