Logo

051040040 RPMs in all gTLDS PDP WG
Andrea Glandon
47:33
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Julie Hedlund
49:42
Suggested language from Small Team 2: http://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004503.html
Julie Hedlund
49:53
Paul McGrady leads that Small Team
Julie Hedlund
53:19
Document Ariel is displaying: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW-1Q4/edit?usp=sharing
Maxim Alzoba
59:32
there should be safeguards for Geo tlds
Maxim Alzoba
01:00:11
is not having a domain discouraging? I think so
David McAuley (Verisign)
01:00:36
While this implementation language is helpful I agree with Maxim that Rec #2 is still largely vague
Paul McGrady
01:01:24
Maxim is raising the same old non-problem. No ICANN Compliance Department employee is going to issue a breach notice if someone saves a second level for the Police Department.
Maxim Alzoba
01:01:36
short response
Marie Pattullo
01:01:44
Agree completely with Griffin.
David McAuley (Verisign)
01:01:58
That's even lower
Marie Pattullo
01:02:01
Sorry, can't hear Jason.
Julie Hedlund
01:02:07
@Maxim and all, please note that the text of the two bullet points in the Implementation Guidance is just examples.
Julie Hedlund
01:02:17
much better
Maxim Alzoba
01:02:24
compliance reads language as is, not intentions of the WG
Griffin Barnett
01:03:15
Further to my point, as was noted earlier, this is a high-level policy recommendation; the IRT will be tasked with implementing this recommendation and our guidance should be sufficient to allow the IRT to craft an appropriately tailored RA amendment and (hopefully a challenge mechanism with appropriate safeguards built in so as to not inhibit legitimate registry activities
Paul McGrady
01:03:48
@Maxim - correct. They won't think that saving a second level TLD for the police department is a circumvention.
Maxim Alzoba
01:04:10
ALP did not work, we do not know if it will next time, QLP is only 100 where an average capital {most geos last time) have hundreds of streets, monuments and pubic services
Griffin Barnett
01:04:25
I agree (I think) with Jason insofar as implementing this recommendation may necessitate a third party challenge mechanism akin to the PDDRP or pICDRP so aggrieved TM owners can challenge a registry activity and there can be a ruling as to whether the activity is legitimate or not
Griffin Barnett
01:04:36
(This is what small team was working on)
Maxim Alzoba
01:06:35
also I remind all of us, attempt to win over city authorities will lead to local law regulation and huge scandal in GAC
Marie Pattullo
01:07:51
"... REASONABLE use". It's in the Rec.
Susan.Payne
01:07:58
QLP and ALP are nothing to do with this Maxim. You know perfectly well the type of behaviour we are trying to address
Griffin Barnett
01:08:12
Perhaps we can just add a third bullet that says - registry activities that have a bona fide legitimate basis or rationale are explicitly not intended to be inhibited by this provision
Kathryn Anne Kleiman
01:08:33
to bullet point 1 -- adding: "without countervailing rationale and/or reasonable activity registries, including handling of dictionary terms.
Griffin Barnett
01:08:40
Again, we all need to keep in mind that we are not crafting the actual contract language, that is the job of the IRT
Marie Pattullo
01:08:47
No one would claim reserving police for the city police is anything other than reasonable.
Ariel Liang
01:08:49
As a staff suggestion for your consideration — perhaps we can include something to this effect: “The Working Group notes that this recommendation is not intended to preclude or restrict Registry operator’s legitimate business practice and pricing practice that are compliant with ICANN policies and procedures.”?
Griffin Barnett
01:09:35
Agree with Marie - I think the rec on its face already provides the necessary circumscription (is that the right word)
Kathryn Anne Kleiman
01:09:42
to bullet point 1 (slightly revised)-- adding: "without countervailing rationale and/or reasonable activity by registries, including handling of dictionary terms.
Griffin Barnett
01:10:02
With the word “reasonable” … but if others strongly feel we need to make the clarification more explicit, I can live with that
Maxim Alzoba
01:10:03
ICANN compliance just reads the contract and enforces the way they see fit, it is non negotiable
Griffin Barnett
01:10:28
Which is generally hugely favorable to CPs
Maxim Alzoba
01:10:49
also price regulation is outside of the picket fence and non enforceable
Griffin Barnett
01:11:13
But enforcing against circumvention of the RPMs through discriminatory practices is within the picket fence
Maxim Alzoba
01:11:32
@Griffin , I am not so sure - what we hear from compliance is demands not sugessions
Maxim Alzoba
01:11:50
and formal violations are enforced the way they see fit
Griffin Barnett
01:11:57
And when was the last time of any severe penalty against a registry operating in good faith
Rebecca Tushnet
01:12:05
Some of the vagueness could be cabined by reference to things that are ok, not just what's not ok. E.g., ALPs generally
Maxim Alzoba
01:12:21
ALP does not work yet
Maxim Alzoba
01:12:46
we do not know if it will
Griffin Barnett
01:13:12
we can just say that this rec is not intended to inhibit legitimate registry activities that are specifically permitted by ICANN (this would cover all legitimate registry activities like the ones Maxim raises)
David McAuley (Verisign)
01:13:13
as Jason said, threading the needle
Griffin Barnett
01:13:27
We discussed this ad naseum before in reaching consensus on rec 2
Marie Pattullo
01:13:27
Ariel's wording above seems OK to me.
Ariel Liang
01:13:49
perhaps we can include something to this effect: “The Working Group notes that this recommendation is not intended to preclude or restrict Registry operator’s legitimate business practice that are compliant with ICANN policies and procedures.”?
Rebecca Tushnet
01:13:52
Maxim, that's why my thought would be to suggest that it is a legitimate option
Ariel Liang
01:13:55
Repeating here for your reference
Maxim Alzoba
01:14:13
it was thought to be the way, but it did not work
Paul McGrady
01:14:59
+1 Ariel. Picket fence asked and answered
Kathryn Anne Kleiman
01:15:19
But is it reflected in the bullet point?
Kathryn Anne Kleiman
01:15:25
(new bullet point?)
Kathryn Anne Kleiman
01:15:57
seems like agreement on revision - how to proceed?
Griffin Barnett
01:16:00
How would it be reflected in a bullet point? It is just summary discussion...
Ariel Liang
01:16:13
I think the pricing bullet point is mentioned in accordance with this sentence “While some Working Group members expressed concerns about the interplay of Registry pricing with RPMs obligations”
Griffin Barnett
01:16:28
I think we discuss proposed amendment/addition to the bullet points on list - agree with Phil
Julie Hedlund
01:17:14
Suggested language from Small Team 2: http://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004503.html
Griffin Barnett
01:17:43
I don’t think adding “intentionally” in the rec helps us bc it doesn’t really address Maxim’s concern, bc reserving a name intentionally as part of an ALP or something is still intentional....
Philip Corwin
01:18:20
email I sent last night---
Philip Corwin
01:20:06
Not able to copy and paste...grrrr
Ariel Liang
01:20:16
We will display them on the screen
Griffin Barnett
01:20:49
Personally, I support this language as a compromise but actually would suggest it explicitly instruct the IRT to develop a third-party challenge mechanism to address this activity, akin to the PDDRP or PICDRP in relation to the specific conduct that can be challenged via those mechanisms
Rebecca Tushnet
01:20:54
link to Philip's email if that is easier to see https://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004506.html
Griffin Barnett
01:22:56
Agree with how Paul has responded to the clarifying questions
Paul McGrady
01:23:29
@Phil - correct.
Griffin Barnett
01:24:11
I think ICANN compliance would need to have a role, in a similar way it does in a PICDRP for instance; an independent panel would actually perform the substantive review and ICANN compliance would implement a panel finding, for example
Maxim Alzoba
01:25:38
panel can not replace arbitration
Maxim Alzoba
01:26:58
I am opposed to this suggestion (even if it is better than the previous one)
Susan.Payne
01:26:59
didn't an IRT create the URS, PDDRP, PICDRP, to name a few?
Paul McGrady
01:28:14
1. Clause could include a clause to include a challenge mechanism. 2. IRTs do this sort of thing all the time (e.g. the AGB and all of the challenge mechanisms with it).
Rebecca Tushnet
01:28:15
Why isn't a complaint to ICANN compliance sufficient here? I agree with David that it's especially problematic to move from "vague standard applied by single decisionmaker" to "vague standard applied by various possible decisionmakers"
Maxim Alzoba
01:28:46
enforcement is about prohibition of violation of the contract, not about not following the ideas
Paul McGrady
01:29:07
@Rebecca - because in response to the complaints over the years on sunrise circumvention, ICANN has consistently said they could do nothing about it.
Maxim Alzoba
01:29:16
it is literally the language of a contract following
Maxim Alzoba
01:29:56
@Paul, circumvention itself is not defined, so can not be enforced
Justine Chew
01:30:16
Apologies, I have to drop off the call now.
David McAuley (Verisign)
01:30:39
good point about ephemeral nature of sunrise
Maxim Alzoba
01:30:54
there are sunrise drps
Rebecca Tushnet
01:30:55
Marie, the "could do nothing about it" doesn't mean "pick someone else"--if Rec 2 is "start doing something about it" then why isn't ICANN compliance the appropriate place?
Maxim Alzoba
01:31:47
if parties come to ICANN compliance asking for something not contrary to the contract, it should lead nowhere
David McAuley (Verisign)
01:33:00
UDRP actually 'started' at US Dept of Commerce in their white paper if I recall correctly
Griffin Barnett
01:33:39
If we specifically instruct the IRT to create a challenge mechanism then they have the ability to do that
Griffin Barnett
01:33:45
Full stop
Kathryn Anne Kleiman
01:33:49
STI was an an IRT
Kathryn Anne Kleiman
01:33:56
STI was not an IRT
Susan.Payne
01:34:37
+1 Paul
Kathryn Anne Kleiman
01:34:37
disagree Paul -
Kathryn Anne Kleiman
01:34:53
STI like EPDP
Paul McGrady
01:35:21
@Kathy - your view. You and I were both on the STI and it was not run anything like a PDP.
Marie Pattullo
01:35:32
I think you meant to tag Paul, not me, Rebecca?
Paul McGrady
01:36:18
@Phil - can we have clarity? What is the decision? Is this moving forward or not? Thanks!
Griffin Barnett
01:36:48
It seems to me there is general agreement on the Rec but we may not some clarification in terms of implementation guidance, which is what we are working on
Griffin Barnett
01:36:53
*may need some
Griffin Barnett
01:37:47
And frankly I am a bit puzzled about the apparent opposition to a challenge mechanism if there is general agreement about the rec - to me it is no different than the PICDRP or PDDRP as challenge mechanisms that are implicit and helpful in Spec 7 and Spec 11 of the RA
Paul McGrady
01:37:57
Thanks Phil!
Maxim Alzoba
01:38:09
the language is too vague
Griffin Barnett
01:38:40
Too vague for what? I don’t think it’s too vague for a policy recommendation
Griffin Barnett
01:38:53
Especially with the further implementation guidance we are craftig
Maxim Alzoba
01:38:55
there is no agreement on that
Julie Hedlund
01:39:08
see: http://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004505.html
Cyntia King (USA)
01:39:11
Agree w/ Griffin. There's a large degree of agmt here.
Griffin Barnett
01:39:14
I mean… it already went out as a WG recommendation....
Griffin Barnett
01:39:33
So clearly we already determined that it had sufficient "consensus”
Maxim Alzoba
01:39:46
not the current language
Griffin Barnett
01:40:03
The current language as in the add’l guidance?
Cyntia King (USA)
01:41:05
I didn't mean that everyone agrees (which would be miraculos on most any issue we discuss), rather that most agree.
Paul McGrady
01:41:47
@Paul T. - apologies if you already states this (I stepped away). What was the support level from the small group on this?
Julie Hedlund
01:42:05
hand up
Paul McGrady
01:42:17
@Paul T. - Also, has Staff opined on whether or not this proposal is implementable?
Julie Hedlund
01:43:06
hand up again
Maxim Alzoba
01:44:45
ALPs were handled poorly last time
Maxim Alzoba
01:45:07
I think so, it is directly related to RPMs
Maxim Alzoba
01:45:28
it is part of RPMs
Susan.Payne
01:48:19
TMCH RPMs Requirements document that is incorporated by reference into the AGB and the RA (http://newgtlds.icann.org/en/about/trademark-clearinghouse/rpm-requirements-14may14-en.pdf). 4.5 deals with Launch Programs, specifically 4.5.2:Registry Operator MAY, prior to the start date of its Sunrise Period, apply to ICANN for approval to conduct a registration program not otherwise permitted by these TMCH Requirements. Such a registration program application could, for example, provide for authorization to implement programs set forth in Registry Operator’s application for the TLD, which, if set forth in reasonable detail in the application for the TLD, will carry a presumption of being approved, unless ICANN reasonably determines that such requested registration program could contribute to consumer confusion or the infringement of intellectual property rights. If Registry Operator seeks ICANN’s approval of a program under this Section 4.5.2, and such requested registration program is substantially similar to a
Maxim Alzoba
01:49:01
thanks, Susan
Ariel Liang
01:49:24
https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMPWMFY/edit#
Paul Tattersfield
01:51:50
@ Paul M just seen your message I think your email server is having problems sometimes they get queued for 10 hours or more... Daivd & Susan supported and ID didn't hear from Scott or You
Paul Tattersfield
01:53:10
other than you wanted the proposal sent to the WG for discussion
Susan.Payne
01:53:19
@Ariel, is that new language highlighted just for the purposes of this call or is it identified for anyone who wants to review this after the call?
Griffin Barnett
01:54:36
Some of us did understand the EPDP Phase 1 report
Griffin Barnett
01:54:40
Miraculously
David McAuley (Verisign)
01:55:53
nice suggestion
Kathryn Anne Kleiman
01:59:53
Nope
Julie Hedlund
02:00:28
Yes, the WG would have seen the contextual language and deliberations on URS Question 1 — as that is the origin for this recommendation.
Julie Hedlund
02:01:08
And some of the language is incorporated from the EPDP Wave 1 analysis table, which was sent several weeks ago to the WG to review and discuss.
Renee Fossen
02:01:57
Unfortunately, I need to drop for a meeting with my first grader's teacher. The joys of distance learning.
Julie Hedlund
02:02:00
The recommendation language has appeared in the public comment analysis summary as agreement by the WG
Ariel Liang
02:03:26
Purpose 6-PA5 text was included in the public comment analysis doc as a side comment since August
Julie Hedlund
02:03:57
The language was circulated prior to the first discussion of the EPDP Wave 1 analysis table — by Ariel
Griffin Barnett
02:04:24
Sorry but I really cannot understand Kathy’s concern or objection to that language…
Julie Hedlund
02:05:09
@Kathy: The language was circulate to the WG
Griffin Barnett
02:05:15
Pretty sure we did discuss the language about redaction
Ariel Liang
02:05:22
Hand up
Griffin Barnett
02:06:02
It’s also literally some context…. Not even sure why we’re really discussing it now
Paul McGrady
02:06:26
Context language isn't binding, is it?
Julie Hedlund
02:06:33
@Griffin: That’s right. It is included as context only. GNSO Council asked the WG to
Julie Hedlund
02:06:56
@Paul: It’s not binding. It’s just context.
Griffin Barnett
02:06:59
This really should not be controversial…
Kathryn Anne Kleiman
02:07:15
It is not language that we adopted or even reviewed
Julie Hedlund
02:07:20
It’s not even guidance to the IRT
Julie Hedlund
02:07:28
it is not implementation guidance
Kathryn Anne Kleiman
02:07:34
It was not even part of the table that was circulated.
Paul McGrady
02:07:38
Recommendations are binding (at least I hope they are)...
Julie Hedlund
02:07:49
@Kathy: It was part of the table
Griffin Barnett
02:08:14
I have a hard stop at 2:30
Kathryn Anne Kleiman
02:08:29
@Julie - it was referenced in the table, but not shown - you circulated it separately (many weeks later) - which I appreciate
Julie Hedlund
02:09:16
No it was shown in the margin on the day the WG discussed it
Julie Hedlund
02:09:28
Ariel put it in
Rebecca Tushnet
02:09:36
I'm also pretty sure Kathy has mentioned this before.
Griffin Barnett
02:09:59
Kathy do you have some particular substantive concern with the paragraph? I don’t really see what would be objectionable about its inclusion as context to this rec
Griffin Barnett
02:10:05
Maybe I missed it if so
Julie Hedlund
02:10:34
@All: Note that the context is just that — it is not binding and not Implementation Guidance.
Kathryn Anne Kleiman
02:11:35
yes
Kathryn Anne Kleiman
02:11:45
good suggestion.
Griffin Barnett
02:11:50
I guess I don’t object it just seems silly
Maxim Alzoba
02:12:25
thanks all
David McAuley (Verisign)
02:12:30
Thank you Phil, and staff, and all
Griffin Barnett
02:12:40
Thanks for chairing yet again Phil,
Paul Tattersfield
02:12:49
thanks Phil, bye all
Griffin Barnett
02:12:52
Bye all