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Nathalie Peregrine's Personal Meeting Room - Shared screen with speaker view
Julie Bisland
32:30
Welcome to the Review of All Rights Protection Mechanisms, (RPMs) and all gTLDs PDP Working Group call on Wednesday, 8 January 2020 at 17:00 UTC.
Paul McGrady
33:29
It has worked well in SubPro
Ariel Liang
34:18
The slides of URS individual proposal can be downloaded here: https://community.icann.org/download/attachments/93126760/URS%20Individual%20Proposal%20Survey%20Result.pdf?version=1&modificationDate=1576086277000&api=v2
Julie Bisland
36:27
reminder: Please mute when not speaking :)
Ariel Liang
37:01
=== We are currently discussing Proposal #3 ===
Susan Payne
37:36
I have an SOI update - I am now a member of the IRP-IOT. Although this was notified back in Montreal the formalities of getting added to the group have taken a while
Julie Hedlund
38:52
Noted Susan
David McAuley (Verisign)
39:32
a technical correction likes this seems to make sense but we may wish to make that clear to public as Griffin seems to suggest
Kathy Kleiman
39:35
Susan is that -- Independent Review Process Implementation Oversight Team?
Susan Payne
39:50
oh, yes thanks Kathy it is
Kathy Kleiman
39:59
Feel free to use chat to support and oppose too!
Griffin Barnett
40:43
I might suggest we look at how the renewal issue is handled under the UDRP and perhaps use that info to clarify the language of this proposal a bit so it is very clear
Griffin Barnett
41:15
But happy to defer that until post-public comment (and we can include some suggestions for clarifying in public comment so as to not delay the process now
Ariel Liang
42:04
=== Now Discussing Proposal #30 ===
Griffin Barnett
42:59
Very strongly oppose this proposal. Mandatory mediation would simply drag out what is intended to be a rapid procedure unnecessarily. I recognize that is a substantive ground for opposing rather than procedural in terms of threshold for publishing for comment.
David McAuley (Verisign)
43:11
mediation could imperil the R of URS
Susan Payne
43:50
agree with the comments above and of Jason
Griffin Barnett
44:06
+1 with Jason's comments
Susan Payne
44:20
I don't necessarily support either for the UDRP but I do think we should note it to revisit and debate in phase 2
Griffin Barnett
44:42
Agree - definitely need to remove UDRP from this proposal in any case
Jason Schaeffer
44:47
+1 Susan
Paul Tattersfield
45:52
domain registrants?
Susan Payne
46:07
good [poin Steve. I believe it's an increment from the domain cost that funds this
David McAuley (Verisign)
46:10
I am assuming that our prior arrangement to remove considerations of UDRP from these discussions is still in place when we approach proposals that mention both URS and UDRP
Susan Payne
46:11
point
Justine Chew
46:26
Good intention but I don't see how parties can be compelled to undertake mandatory mediation. If parties don't want to then they will simply decline. So oppose for publication.
Griffin Barnett
46:32
I am curious who supported publication... no has spoken up in support
Griffin Barnett
46:39
(supported in the poll that is)
Ariel Liang
47:01
=== Now Discussing #26 ===
Rebecca Tushnet
47:02
I do not think you should have to speak verbally to count.
Rebecca Tushnet
47:17
Otherwise this is just an endurance test.
Griffin Barnett
47:20
Rebecca - not disagreeing with that, just noting
Julie Hedlund
48:04
Note that staff will review both the chat and the transcript/recording for the record of deliberations
David McAuley (Verisign)
48:19
Thanks Julie
Griffin Barnett
48:31
Not opposed to proposal 26, but I think most if not all providers do already publish their roster of examiners, although may not take the further step of identifying number of appointments and links to cases by each examiner (beyond the general publication of all decisions)
Ankur Raheja
49:13
+1 to Zak's proposal #26
David McAuley (Verisign)
49:35
looks like #26 is ready for takeoff
Kathy Kleiman
49:41
Can we go back to the prior proposal?
Paul Tattersfield
49:44
Phil +1
Zak Muscovitch
50:47
@Renne that sounds sufficient to me
Justine Chew
50:53
@Renee, thanks, I was about to check if you were on the call and if you comment in this proposal #26 from a provider's POV.
Justine Chew
52:01
*if you would comment on ...
Ariel Liang
52:41
=== Now Discussing #7 ===
Julie Hedlund
53:36
hand up
Griffin Barnett
54:13
Do we have the authority/scope to recommend a change to WHOIS to add a new contact field, as this proposal suggests?
Kathy Kleiman
55:30
@Julie/Ariel - it would be good to show the comments briefly (next page)
Griffin Barnett
55:33
In principle I have no problem with having notice go to all available points of contact associated with a domain name, but I don't know that this proposal as currently written is something we can put forward
Renee Fossen
55:48
Agree with Griffin and Susan
Ariel Liang
55:59
Noted Kathy
Jay Chapman
56:11
+1 Griffin
Paul Tattersfield
56:14
Susan +1
Marie Pattullo
56:22
What if you don't have a retained lawyer? Or you have one for real estate, or family matters, but not for DNs? Can't see this being feasible.
David McAuley (Verisign)
56:27
Susan's suggestion makes sense to refer the idea to the EPDP
Kathy Kleiman
56:55
Tx!!
Paul Tattersfield
56:57
:-)
Susan Payne
57:13
ha Jason - yes!
Griffin Barnett
57:17
Agree Jason - great point - anyone could put any contact into the legal contact field and potentially cause lots of issues with attorney0-client realtionships etc
David McAuley (Verisign)
57:29
Interesting point, Jason
Marie Pattullo
57:31
Agree with Jason & Griffin.
Griffin Barnett
57:33
(maybe that's why such a field does not exist)
Zak Muscovitch
57:56
+ I don't want cybersquatters putting my name down as a Legal Contact
Jason Schaeffer
58:28
+1 Zak!!! :)
Justine Chew
59:02
Agree with Jason although I'm not sure that Legal Contact is a legal counsel per se. Having said that, I'm not convinced this is necessary. Admin Contact is sufficient, that person can deal with notice accordingly.
Ariel Liang
59:46
=== Now Discussing #28 ===
Griffin Barnett
59:51
providers already implement conflict of interest measures... they may differ slightly by provider, but wondering if we need to address this at the PDP level?
Griffin Barnett
01:00:22
that said, no strong opposition to this in principle
Justine Chew
01:02:00
I think it is provider specific, as in providers themselves have one
Griffin Barnett
01:03:01
yes - providers each have internal conflicts policies that they employ, its just not a single uniform one... i also take that there may be concerns about proper compliance with these policies, but that is not a policy question, but rather an implementation/compliance issue
Justine Chew
01:03:01
Yes, what Griffin said
Griffin Barnett
01:03:29
Didn't we discuss this previously??
Griffin Barnett
01:03:46
#19 that is
Zak Muscovitch
01:03:53
What Griffin said.
Griffin Barnett
01:03:53
along with 18 and 20?
Paul Tattersfield
01:03:53
#18 I think Griffin
Julie Hedlund
01:04:45
hand up
Justine Chew
01:04:57
Were we meant to take #18, #19 and #20 together?
Rebecca Tushnet
01:05:36
I agree that a lot of discussion has occurred but if the survey matters, this one did do a lot better in the survey
Ariel Liang
01:06:30
=== Now Discussing #29 ===
Griffin Barnett
01:08:26
Kathy - the prior comments have been captured, do we need to look at them for each proposal now, when presumably they will be part of the co-chair discussion ?
Griffin Barnett
01:08:51
(along with poll results and present discussion)
Kathy Kleiman
01:09:42
Agree with Phil
Renee Fossen
01:09:47
I suspect it would benefit few...
Justine Chew
01:10:12
Technical benefit is likely related to data download and analysis.
David McAuley (Verisign)
01:10:33
Interesting point about the word 'all' - seems to require retroactive application - will be interesting to see what public thinks if this goes out
Justine Chew
01:10:53
+1 Kathy -- exactly what I mean
Paul McGrady
01:11:16
Might also be useful for Westlaw, Lexis, etc.
Ariel Liang
01:12:22
=== Now going back to #19 ===
Kathy Kleiman
01:12:45
Tx going back...
Paul Tattersfield
01:12:52
lvery easy to circumvent
Paul Tattersfield
01:13:27
same as IP lawyers can do now with UDRP
Paul Tattersfield
01:13:53
not good
Ariel Liang
01:14:44
=== Now discussing #5 ===
Griffin Barnett
01:14:58
Oppose #5
Marie Pattullo
01:15:07
Also oppose 5.
Georges Nahitchevansky
01:15:22
Oppose #5
Griffin Barnett
01:15:34
SOL from creation date makes no sense, as bad faith can take place much later in the domain lifecycle
Griffin Barnett
01:15:48
no - creation date of the domain name
Paul McGrady
01:16:03
Oppose #5.
Justine Chew
01:16:32
+1 Griffin, I have the same opinion
Renee Fossen
01:16:54
Oppose publication of #5
Susan Payne
01:17:09
creation date - this is George's argument that it's the first registration date that should set the date for limitation purposes and not any dates of subsequent transfer
Susan Payne
01:18:17
I am strongly opposed to the proposal, but it does have some support (and lots of opposition) to publication. If we publish we need to ensure the public understand what "creation date" means
Griffin Barnett
01:18:46
liitation period and laches are similar but not exactly the same; this proposal specifically refers to a specific, set and firm limitation period
Justine Chew
01:18:52
Still strange - what if bad act occurs after transfer?
Griffin Barnett
01:18:57
so let's not automatically conflate that with laches
Jay Chapman
01:19:15
The point of the proposal is a time limit for filing complaints. The example was “creation date”, but the specific implementation to be considered/decided by an IRT.
Kathy Kleiman
01:19:24
is renewal (by old registrant) also considered a new registration?
Griffin Barnett
01:19:36
Kathy - likely not
Jason Schaeffer
01:19:42
No Kathy.
Kathy Kleiman
01:19:45
Tx Griffin!
Kathy Kleiman
01:19:53
and Jason!
Paul Tattersfield
01:19:55
@Kathy some panellists have tried that approach
Kathy Kleiman
01:20:12
@Paul -- I did think I saw it out there...
Justine Chew
01:20:34
Agree that if it goes out for publication, then it must explain the terms "creation" and "registration".
Griffin Barnett
01:20:42
Many years ago there was a question under UDRP jurisprudence whether a renewal constitutes a new registration date but it has been pretty well settled for a while that it does not, without an attendant change in registrant
Jason Schaeffer
01:20:44
Yes, Paul is correct
Susan Payne
01:21:06
I don't agree with Zak's suggestion regarding the intent of the URS
Jason Schaeffer
01:21:23
and Griffin.
Susan Payne
01:21:45
But think we may need to put this individual proposal out
Kathy Kleiman
01:22:02
+1 Susan
Jay Chapman
01:22:07
An effective SOL for filing complaints is a valid issue for publication
Paul Tattersfield
01:22:21
needs ALOT of work
Paul Tattersfield
01:22:31
even to go out comment
Georges Nahitchevansky
01:24:42
Renewal is not a new registration. The line of case that started to support that proposition were rejected by panelists as a group, Proposal 5 would be a major change in policy. I would reject this proposal and perhaps include a separate proposal as to whether or not there should be a limitation period in URS cases. But this proposal is not workanble
Lori Schulman
01:25:53
Georges comment makes sense.
Paul Tattersfield
01:25:56
Georges +1
Ariel Liang
01:25:59
11 proposals left
Ariel Liang
01:26:32
=== Now Discussing #31 ===
Marie Pattullo
01:26:45
In the interests of time, can we roll 14 into 15, 17 into 16 and 21 into 22 please?
Susan Payne
01:27:21
+1 Phil - I think we were tasked under charter with considering this
Griffin Barnett
01:27:40
Agree - this proposal 31 should be put out for consideration
Marie Pattullo
01:28:03
Agree it should be put out.
Paul Tattersfield
01:28:21
It seems GDD front ran this working group on the recent .org and .info contracts
Ariel Liang
01:28:29
that’s it
Cyntia King
01:29:26
Support publication
Marie Pattullo
01:29:30
Can we roll this into 22?
Ariel Liang
01:30:06
=== Now Discussing #21 (related to #22) ===
Kathy Kleiman
01:30:08
any comments?
Susan Payne
01:30:13
this was merged with 22 when the IPs were previously reviewed
Paul Tattersfield
01:30:56
Very very strongly opposed to this as an overarching principle on such a lightweight RPM as URS as it will be used to bully registrants
Marie Pattullo
01:31:47
Yes!
Ariel Liang
01:32:20
=== Discussing #21 & #22 Together ===
Paul Tattersfield
01:32:44
There will be lots of nastygrams and most unifformed registrants will just not start a legitimate non competing business on a different domain
Cyntia King
01:34:20
I just don't see how this could work. At best I thinkwe could request public comment on whether this should be studied.
Mike Rodenbaugh
01:34:23
Hi all, regardless the topic, a 50/50 split indicates to me that we should publish the issue for public comment and further discussion
Kathy Kleiman
01:34:54
Can someone clarify the question of what costs are involved here?
Marie Pattullo
01:34:57
Knowing that this may happen could have a deterrent effect on bad actors.
David McAuley (Verisign)
01:35:14
Loser pays as a concept has a lot of nuance, including whether the loser participated in good or bad faith
Paul Tattersfield
01:35:21
50 50 split benfits IPC :-))
Mike Rodenbaugh
01:35:23
Will also inform future debate re same issue(s) to be presented in Phase II re UDRP
Paul Tattersfield
01:35:36
bulk support v broad support etc
Mike Rodenbaugh
01:35:36
@Paul, not in this instance
Ariel Liang
01:36:10
Note that complete proposals are stored on this wiki page: https://community.icann.org/x/aACNBQ
Paul Tattersfield
01:36:18
thanks Mike I don't have the original data in front of me
Griffin Barnett
01:36:35
Agree - public comment could bear out ore specifics regarding these ites
Griffin Barnett
01:36:37
*items
David McAuley (Verisign)
01:36:43
+1 Phil on complexity of determining costs
Griffin Barnett
01:36:45
*more
Paul Tattersfield
01:37:17
its an allegation
Ariel Liang
01:37:34
This is the link to the complete proposal #22: https://community.icann.org/download/attachments/93126760/URS-Proposal-22.pdf?version=1&modificationDate=1537973000000&api=v2
Paul McGrady
01:37:45
I would be interested on hearing from the broader community about (a) if/how this could be implemented and (b) in a way that wouldn't further slow down the URS process. Also, as Mike R. noted, this is surely to come up in Phase 2, so a preview on how the community is feeling about this might be helpful.
Paul Tattersfield
01:37:52
its an allegation at the point of the claim
Griffin Barnett
01:38:10
registrant bought the domain name reg using some payment method, so there is some means by which a urs fee could be charged to that same payment method, enforceable via the domain name registration agreement
Griffin Barnett
01:38:15
and effectuated by the registrar
Mike Rodenbaugh
01:38:36
Not sure about that, Griffin.
Susan Payne
01:39:17
@Phil, that's why I have supported putting out some of the others that I'm fundamentally opposed to on the merits
Justine Chew
01:39:21
If we are not merging closely related proposals how do we mitigate increased likelihood of confusion and unhelpful feedback from respondents?
Griffin Barnett
01:40:18
we are talking about implementation mecahnisms
Griffin Barnett
01:40:34
and a strawman
Paul Tattersfield
01:40:59
Wrong Griffin we are here to design an equitable framework not ease a litigation strategy fro one party
Jay Chapman
01:41:11
Beyond no mechanism and being effectively unenforceable, this concept would boost toothless threats and bullying
Paul McGrady
01:41:11
Zak, these are all interesting points and the community should include them in their comments.
Ankur Raheja
01:41:16
+1 Zak
Griffin Barnett
01:41:33
right - equitable - so complainants don't bear the full costs of pursuing valid clais
Griffin Barnett
01:41:36
*claims
Scott Austin
01:41:48
+1 Zak
Griffin Barnett
01:42:41
so we are really getting into the substantive merits of the proposal, rather than whether it should be put to public comment
Paul Tattersfield
01:42:42
It’s about access to justice Griffinif you want to inject costs file a court case
Mike Rodenbaugh
01:42:54
@Jason it must go both ways, RDNH = Loser, who pays; I am not sure IPC is (or ultimately will be) in favor of any Loser Pays type of model.
Griffin Barnett
01:42:54
clearly there is support and opposition, default to publication
Zak Muscovitch
01:44:18
Arguably, Griffin. But on the other hand, one of the other yardsticks we have ostensibly using, is whether a proposal can ever get consensus. And even if it is 50-50, that seems to mitigate against consensus being achievable.
Scott Austin
01:44:30
Doable within an expedited time frame
Griffin Barnett
01:44:41
so then let's forego any of this exercise and agree to status quo on all things
Paul Tattersfield
01:44:44
very well said
Rebecca Tushnet
01:44:57
+1 Cyntia
David McAuley (Verisign)
01:44:59
Agree with Cyntia - wise comments
Scott Austin
01:45:11
+1 Cyntia
Jay Chapman
01:45:19
+1 Cyntia
Justine Chew
01:45:28
Agree with Cynthia -- Loser pays concept more appropriate for a discussion paper, not really for a open ended question/proposal.
Jason Schaeffer
01:45:36
Mike, I agree. Not sure this goes anywhere in UDRP or RNDH (Proposed Penalty). As stated, let's focus on the URS and purpose and intention of the URS as fast and efficient.
Jason Schaeffer
01:45:49
*RDNH
Georges Nahitchevansky
01:46:19
I personally have questions about specific proposals on loser pays and agree with Cynthia that the proposal should be about putting the issue out of whether there should be some form of loser pay
Ariel Liang
01:46:38
=== Now Discussing #6 ===
Griffin Barnett
01:47:00
yes - put the question out for public comment... maybe we ultimately decide no consensus to make it a WG recommendation and that's fine but should put out for comment to collect the feedback
Griffin Barnett
01:47:06
(that comment was re 21/22)
Rebecca Tushnet
01:47:25
Technical Q: isn't this also a GDPR issue?
Justine Chew
01:49:16
LIke a mutant form of consolidation or class action
Paul Tattersfield
01:49:25
@Griffin on loser pays proposal - It will solve very little because under the new ICANN model fro new gTLDs and now .info and .org etc can charge $000s not only to buy the name but to register it every year – all they have to do is call it a premium name. URS & UDRP won't help
Griffin Barnett
01:50:00
not following your comment Paul
Paul Tattersfield
01:50:23
I post it to the list Griffin - after the call
Griffin Barnett
01:50:27
not sure what premium names has to do with implementing loser pays
Ankur Raheja
01:51:30
In India, we have penalties/cost of proceedings in case of INDRP (.IN Domain Disputes) and many times they are imposed along with transfer of domain name but I have never heard that they have ever been recovered...
Kathy Kleiman
01:52:02
+1 Paul -- is this even fair to the Examiner?
Griffin Barnett
01:52:10
I think Cyntia did describe the purpose of this proposal #6 - to facilitate joint complaints by multiple unrelated complainants against a single registrant who has registered many doaiins targeting multiple TMs of multiple parties - would be a very liited subset of cases
Jason Schaeffer
01:52:22
+1 Paul
Georges Nahitchevansky
01:52:46
Agree with Cynthia and should let the community comment on this
Kathy Kleiman
01:53:19
Could you ask? Perhaps of Griffin or the whole group?
Griffin Barnett
01:53:22
Would potentially maximize procedural efficiency, to consolidate cases like this (even if few such cases) as opposed to the alternative of having dozens maybe hundreds of separate individual URS cases by different complainants separately against the same registrant
Kathy Kleiman
01:53:34
Sorry -- question raised of what is a related case?
Scott Austin
01:53:40
Let the Community comment.
Justine Chew
01:53:42
Downstream, Proposal #6 might affect things like requirement to establish the relationship of domains in question, complaint word limit, costs incurred by provider/examiner ....
Jay Chapman
01:53:50
How is “related” defined?
David McAuley (Verisign)
01:53:51
It's hard to imagine comapnies evening agreeing to do this
David McAuley (Verisign)
01:54:04
as complainants
Jay Chapman
01:54:08
Agree, David
Griffin Barnett
01:54:14
related = all domains registered bv same registrant
Kathy Kleiman
01:54:44
How many are left?
Jason Schaeffer
01:55:01
Worth putting forward for comment, but we should closely consider how this would work in practice. Both Cyntia and Paul make good points.
Griffin Barnett
01:55:15
not sure we can get through 33 quickly haha
Julie Hedlund
01:55:16
Proposals remaining: 33, 15, 22, 4, 14, 13, 17, and 16.
Lori Schulman
01:55:17
and let’s remember how many URS cases have been filed. only hundreds. how realistic is this scenario
Paul McGrady
01:55:20
Not an easy one.
Cyntia King
01:55:45
Has ICANN Mgt been consulted on this?
Ariel Liang
01:56:14
=== Now Discussing #33 ===
Paul McGrady
01:56:22
Let's take this up in the next call.
Georges Nahitchevansky
01:56:38
I do think this would be tough to handle and could lead to massively long decisions depending on number of parties and marks involved. If there was to be such a possibility it would seem the fee would need to go up (perhaps each complainant would have to pay a fee) to cover the administrative and panelist time spent on these types of matters. But, essentially, this should be put out to the community
David McAuley (Verisign)
01:56:39
good question, Cyntia
Griffin Barnett
01:56:59
@Georges, yes I think fees already escalate based on # of domains
Julie Hedlund
01:58:12
hand up
Ariel Liang
01:58:17
8 proposals total left for next meeting, including #33
Kathy Kleiman
01:58:23
Tx Phil!
Georges Nahitchevansky
01:58:24
They do, but I would look at it as the fee each complainant would have to pay, which might be higher (e.g. if 5 domains is the same cost, then maybe each complainant pays a new fee)
David McAuley (Verisign)
01:58:31
good progress, good call
Griffin Barnett
01:58:33
Thanks all, good progress today
Julie Hedlund
01:58:34
hand up re: meeting time
Paul McGrady
01:58:40
Great call! Thanks everyone for the collegiality on today's call. Happy New Year!
Georges Nahitchevansky
01:58:50
Thanks everyone
Kathy Kleiman
01:58:58
Julie's hand is up
Julie Hedlund
01:58:58
David has his hand up
Zak Muscovitch
01:59:01
Thanks Phil.
Scott Austin
01:59:02
Thanks everyone
Ankur Raheja
01:59:09
Thanks !
Kathy Kleiman
01:59:21
back to 1pm Eastern
Marie Pattullo
01:59:34
THAT'S a New Year's Resolution. Phil :-).
Julie Hedlund
01:59:50
thanks Phil we’ll take that as an action
Marie Pattullo
02:00:00
(Re end Phase 1, not the call time)
Julie Hedlund
02:00:12
Noting that the standard is to keep the calls at 17:00 UTC year round (as we have been doing)
Kathy Kleiman
02:00:37
Bye All
Lori Schulman
02:00:40
bye