[NCSG-Discuss] Should NCSG consider filing an ombudsman complaint against ICANN senior staff for violating the organization's policy development process?

Tue Mar 26 23:11:17 CET 2013

Happy to help with this as well.

-- Brenden

On Tue, Mar 26, 2013 at 5:54 PM, joy <joy at apc.org> wrote:

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> +1 - I am happy to support this idea.
> Joy
>
> On 27/03/2013 9:47 a.m., William Drake wrote:
> > +1
> >
> > Get some allies
> >
> > On Mar 26, 2013, at 8:28 PM, Mary.Wong at law.unh.edu
> > <mailto:Mary.Wong at law.unh.edu> wrote:
> >
> >> I agree that the Council would be the appropriate filer in this
> >> case. As I mentioned in a different message, there seems to be a
> >> pattern that decisions are being made outside the GNSO policy
> >> processes - although that may be proven to not be the case in
> >> one or more of the instances we've discussed on this list. In
> >> any event I think it would be useful and appropriate for the
> >> Council to discuss this directly, and hope our Councilors can
> >> support this action. It seems to me also that before introducing
> >> the motion it may be worth investigating whether a Councilor from
> >> a different SG/House would be prepared to second it.
> >>
> >> Cheers Mary
> >>
> >>
> >> Mary W S Wong Professor of Law Faculty Chair, Global IP
> >> Partnerships 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 <mailto:mary.wong at law.unh.edu>
> >> Phone: 1-603-513-5143 Webpage:
> >> http://www.law.unh.edu/marywong/index.php
> >>
> >>
> >>>>>
> >> *From: *  Avri Doria <avri at ACM.ORG <mailto:avri at ACM.ORG>> *To:*
> >>  <NCSG-DISCUSS at LISTSERV.SYR.EDU
> >> <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>> *Date: *  3/26/2013 3:23
> >> PM *Subject: *  Re: [NCSG-Discuss] Should NCSG consider filing
> >> an ombudsman complaint against ICANN senior staff for violating
> >> the organization's policy development process?
> >>
> >> Hi
> >>
> >> I can support the NCSG filling such a complaint, though it would
> >> be better for the GNSO Council to file it.
> >>
> >> Perhaps we can first introduce it as a motion for the next
> >> g-council meeting, and if the council decides against it, then
> >> we could do it independently.
> >>
> >> avri
> >>
> >> On 26 Mar 2013, at 15:14, Robin Gross wrote:
> >>
> >>> I think NCSG should consider filing an ombudsman complaint
> >>> against
> >> the organization's senior management for violating the
> >> organization's policy development process by adopting staff's
> >> "strawman solution" which never went through proper process (or
> >> any process for that matter).
> >>>
> >>> The most dangerous part of staff's adopted proposal creates
> >> unprecedented new rights for trademark holders with this "once
> >> infringed" theory of new rights to TM+50 derivations of that
> >> mark. This particular proposal was stitched together by TM
> >> lobbyists and staff when NCSG wasn't even in the room - because
> >> it was 10pm at night in LA and I had left for my flight on
> >> staff's assurances that no policy discussions would take place
> >> that evening.  ALAC wasn't in the room either (although Evan &
> >> Alan participated remotely on the phone in the middle of their
> >> night).
> >>>
> >>> The GNSO Council said don't adopt this policy.
> >>>
> >>> ICANN staff admitted the proposal was a policy decision and
> >>> not an
> >> implementation decision - a key distinction in staff's ability
> >> to make decisions. [Although the first time staff published its
> >> report on the mtg's discussion of that proposal, staff's blog
> >> report differed from what the CEO stated to meeting participants
> >> and said this proposal had been characterized as an
> >> "implementation" decision by mtg participants.  It took some
> >> persistence and insistence from mtg participants to correct
> >> staff's blog post and classify this proposal as "policy" - which
> >> was the truth of what the LA mtg participants had said.  Finally
> >> staff gave-in, as I was not the only one to complain about the
> >> inaccurate reporting, and they changed the web-posting to
> >> reflect that the group - and staff - had classified this proposal
> >> as "policy, and not implementation" at the LA mtg.  The CEO
> >> apologize for staff's "mistake".  I'm sure it's all another
> >> coincidence...]
> >>>
> >>> The CEO told Congress only a few weeks' previously that ICANN
> >>> could
> >> not adopt such a policy - in part because it creates new rights
> >> (and ICANN isn't supposed to creating new rights).
> >>>
> >>> The above doesn't even go into the underlying substance of the
> >> particular (TM+50) proposal (which turns trademark law on its
> >> head). How is anyone going to criticize a company or product
> >> that was "found to abused" by someone else, somewhere else, in
> >> an entirely unrelated circumstance?  This proposal actually
> >> thumbs its nose at trademark law because trademark law recognizes
> >> that "once infringed" does not create some magical new category
> >> of rights that is allowed to trample on the expression rights of
> >> all the innocent and lawful uses of a word (that resembles a
> >> trademark).  But I'll save the complaints about how nonsensical
> >> the substance of this proposal is for another email.  This email
> >> is just about the insanity of ICANN senior staff attempting to
> >> usurp the bottom-up policy development process to appease
> >> powerful political interests.
> >>>
> >>> If ICANN staff refuses to follow the organization's own stated
> >> policies, the Ombudsman is supposed to be able to intercede, no?
> >>>
> >>> Best, 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
> >>> <http://www.ipjustice.org/>     e:
> >> robin at ipjustice.org <mailto:robin at ipjustice.org>
> >>>
> >>>
> >>>
> >>
> >
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