ICANN staff proposal for further concessions to IPC-BC

[Avri Doria]

Hi,

I never meant to degrade Robin's or Kathy's efforts in the meetings.  I think that in another comment on this topic I actually said that I appreciate the efforts.  Might have even called them heroic or some such.

I disagreed with her post analysis of it, not her holding back the tide.  I disagreed with her saying we were all alike in trying to get multiple bites of the apple.

I think your outline of how a comment could be constructed is good - though I would prefer to avoid complimenting Fadi in the process.
When he does something good, like his talk yesterday at the WCIt, I compliment him.  but when he creates ad-hoc process that goes around the PDP, I think we should avoid the compliments..


avri


On 4 Dec 2012, at 01:30, Dan Krimm wrote:

> 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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>>> 
>>