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

[Deedee Halleck]

Yes


Sent by notsosmart fone

On Mar 26, 2013, at 6:11 PM, Brenden Kuerbis <bkuerbis at INTERNETGOVERNANCE.ORG> wrote:

> 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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