At Large White Paper

[Cintra Sooknanan]

Dear Mary,

Thank you for your work particularly coming off of the holiday season.

I am in agreement with your comment on the R3 White Paper and am in the
process of soliciting approval for NPOC. In the meantime you can add my
name as endorsing.

Regards

Cintra Sooknanan

On Wed, Jan 2, 2013 at 11:46 AM, <Mary.Wong at law.unh.edu> wrote:

> Hello everyone,
>
> As the deadline for public comments on the At Large R3 White Paper is
> today, I thought I'd put together a short general comment that I can submit
> either on behalf of NCSG members who wish to sign on as well, or if not,
> just as a personal comment. At the moment there is no other submission;
> nonetheless (and perhaps even more as a result) I know that many of us
> would like to see NCSG, NPOC and NCUC become more active on all policy
> fronts, including submitting public comments on just about all issues of
> interest to our members.
>
> Please reply to the list with comments and if you wish to be included as
> signing on to this comment, and I will add your name (and your organization
> if applicable/desired). Thank you, and a happy new year to all!
>
> My draft comment is attached (and I hope it goes through!)
>
> Cheers
> Mary
>
>
>
>
> Mary W S Wong
> Professor of Law
> Director, Franklin Pierce Center for IP
> Chair, Graduate IP Programs
> UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
> Two White Street
> Concord, NH 03301
> USA
> Email: mary.wong at law.unh.edu
> Phone: 1-603-513-5143
> Webpage: http://www.law.unh.edu/marywong/index.php
> Selected writings available on the Social Science Research Network (SSRN)
> at: http://ssrn.com/author=437584
>
> >>> Avri Doria <avri at ACM.ORG> 12/25/12 1:36 AM >>>
> hi,
>
> On 23 Dec 2012, at 13:45, Milton L Mueller wrote:
>
> >> -----Original Message-----
> >>
> >>
> >> Ithink most everyone can recognize that the strict direemption of the
> >> Council and the Houses was a really bad idea.
> >
> > [Milton L Mueller] I don't agree. Even though I am not sure what
> "direemption" is....
> > The problems of the GNSO are manifold, but none of them that I can see
> are related to the balancing act involving the Houses.
>
> a misspelling of diremption: to forcibly rend into two parts
>
> >
> >> I think we see stakeholders who want to be involved but can't be
> >> involved because their don't fit the US vs. THEM divisions. I think we
> >> see attempts to shoehorn new stakeholders into groups that don't really
> >> fit.
> >
> > [Milton L Mueller] true. But this is for political reasons, i.e., BC/IPC
> don't want new constituencies in CSG and they want to further dilute NCSG
> by throwing new constituencies at us. This kind of game will continue - or
> get worse - as long as the representational structure is unstable.
>
> I think political reasons are just one of the kinds of reasons.
>
> >
> >> We have inconsistent application for the Constituency/Stakeholder
> >> mandate from the Board.
> >
> > [Milton L Mueller] Not sure what you mean by this.
>
> The RySG is allowed to create just the ad-hoc types of grouping we
> advocated, i.e. Interest groups. They are not being held to the same strict
> divisions into ICANN hardened constituencies that were required for NCSG.
>
> >
> >> In the contracted house, we see a situation
> >> where soon, just about every company will belong in the two of the
> >> Stakeholder groups, so subsidiaries will join different Stakeholder
> >> groups.
> >
> > [Milton L Mueller] True. So what?
>
> It means they orchestrate the Contracted Party veto with greater ease.
>
> >
> > In the NonContracted parties house, we have to recognize that
> >> the world is not strictly divided between the Non-Commercial and
> >> Commercial and there are Registrant/User groups that have both aspects,
> >> and that there are a variety of technical stakeholders who need a varied
> >> representation model.
> >
> > [Milton L Mueller] disagree.
> > [Milton L Mueller] Basically you, and many people in ICANN, are spending
> an inordinate amount of time chasing after the chimerical idea that some
> kind of perfect representational structure can be frozen into place and
> will perfectly correspond to everyone's identity. Stop chasing that ideal,
> it will never be found, any more than you will find the end of the rainbow.
>
> Actually I have been arguing for the more adhoc structure for a while, I
> just accept that constituencies exist and that they should get seats on
> nomcom etc. So i figure it is good to use the system we have got.
>
> I do not think we have ever debated the nature of a sustainable &
> evolvable organizational structure, so I doubt you know my views of dynamic
> organizational architectures.
>
>
> > What we need is simple: A basic balance of power/interests among
> industry suppliers, trademark/brand interests and noncommercial users.
>
> the need is simple.
> the way to achieve it complex.
>
> > One of the biggest problems with the current structure is the idea that
> new constituencies - and thus new power centers and resource demands - can
> be created at any time. We already know that this is a never-ending source
> of political gamesmanship and until and unless it stops, we will have to
> pay great attention to this internal stuff instead of actually developing
> policies.
>
> I do not quite understand how you simultaneously seem to argue for an
> evolving structure but with no new entities.
>
> As for wasting time with structure instead of policies, I think most tend
> to work on both recognizing that in an organization like ICANN the one
> affects the other and dirempting them into two different classes of thing,
> one 'that is a waste of time' and one 'we should be doing' misses the point.
>
> >
> > The other big problem with GNSO is that the Board does not respect, and
> the GAC does not respect, it as the "bottom" in the bottom up policy
> development process. That is a problem that dwarfs all the others. Until
> that changes, the representational structure of the GNSO is really a minor,
> secondary issue.
>
> I agree, the Board needs to respect this.
> I think the GAC can push as hard as it wants for its PoV.
> As can we.
>
>
> >
> >
> >> Mostly we have to review the notion of the regulated having an effective
> >> veto in regard to their regulations. I am well aware that this is a
> >> vestige of regulation by contract and the nature of picket fence, but
> >> once we realize that these contracts are not regular contracts but are a
> >> form of regulation, it becomes less obvious that Contracted Parties
> >> should have an effective veto over changes to the regulations. A fully
> >> participatory set of roles and responsibilities, certainly, but not a
> >> veto. Until that gets fixed, ICANN remains vulnerable to calls of CoI
> >> and malfeasance.
> >
> > [Milton L Mueller] These are good points, I may not agree with all of
> them but it is a conversation we need to have. However, it pertais to the
> constitution of ICANN and thus is way beyond our remit as NCSG or even
> GNSO. I will set this one aside for another day, another forum.
> >
> >> I think that if ICANN is a new form of multistakeholder regulatory
> >> organization, it should have something to say about the ccTLDs. It is
> >> ridiculous that ccTLDs are not bound by a same basic rules as the
> >> gTLDs. Sure issues of administration have a sovereign aspect to them,
> >> but the basic registrant and user protection should be equivalent. I
> >> admit I have more sympathy for the ccTLD that focuses on their country,
> >> and perhaps its diaspora, than I do for those who walk and quack as
> >> though they were gTLDs, except for when it comes to responsibilities
> >> including registrant and user protection. I understand that this is
> >> linked to the nature of ICANN as an organization subject to California
> >> law. I have argued and keep arguing for progress on the evolution of
> >> becoming a free standing organization, with appropriate multistakeholder
> >> oversight, that is hosted by a country without being subject to its
> >> political whims. I think it is important that all TLDs have a similar
> >> basic regulatory aspect.
> >
> > [Milton L Mueller] same as above. Too big an issue for this forum. And
> the politics that produced the current equilibrium are unlikely to change.
> > Furthermore, I am not sure it is an improvement to create a centralized
> form of regulation that applies to ALL TLDs, rather than just to gTLDs. At
> the current moment I view ccTLDs as basically outside the regime, and that
> is basically a GOOD thing, though I agree with Avri that many ccTLDs play
> both sides of the fence.
>
> I am not sure that this forum is limited from these topics in so far as
> they may have an effect on the governance of gTLDs and the competitive
> environment they exist within. This was another division into two separate
> things that I think is problematic.
>
> But yes, some of it is for a broader discussions that NCSG can opt to stay
> out of. I was more speaking of the topics in the R3 document, not the
> NCSG's specific charter.
>
> >
> >> I was on the committee that produced this dog's breakfast of a GNSO
> >> organizational modality. As is too often the case, I was the only
> >> dissenting voice. In the end I only agreed to stop fighting about it
> >> because it could be undone a few years later if the experiment failed.
> >> It failed. It is time to undo it. I think the contributions from R3
> >> should, and will, be fed into the analysis that is done on the upcoming
> >> GNSO review.
> >
> > [Milton L Mueller] what failed, exactly?
> > What is your criterion for determining success or failure?
> > I bet you an expensive cocktail at an overpriced ICANN hotel that you
> cannot define such a criterion without invoking the process failures (e.g.,
> IOC/RC re-dos, GAC overrides, etc.) that have absolutely nothing to do with
> the GNSO's organizational modality.
>
> That is challenge I will accept. I need to think on it and work on it a
> bit. But I have time until our next drink in an expensive ICANN hotel.
>
> And while I will leave out specific policy points of process failures, I
> do not think process failures qua process failures can be left out when
> talking about the failure of an organizational design. An organization that
> encourages process failure is a failure. Of course I have yet to prove that
> this is the case or not.
>
> As an ex-chair of the GNSO council and the current NCSG representative on
> the GNSO Standing Committee on [GNSO] Improvements, if I am going to
> declare the current structure a failure, then I better be able to back it
> up with a coherent argument. I will work on getting my statement done in
> time for the document deadline for Beijing.
>
> BTW, I hope the bet doesn't necessarily include one of us convincing the
> other - as way back when you were a proponent of the current GNSO structure
> while I was an opponent. If that is the case, I expect we both be paying
> for our own drinks at the end of the day. Or maybe we will both be buying
> the other one an expensive drink.
>
> cheers, and happy celebrations
>
> avri
>
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