Logo

051040040 New gTLD Subsequent Procedures Working Group call
Julie Bisland
29:53
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Cheryl Langdon-Orr
32:39
Not that I can see
Paul McGrady
36:12
hand up
Paul McGrady
37:35
Happy to follow the new rule.
Steve Chan
42:53
Sorry, computer is super laggy
Justine Chew
43:36
+1 Jeff on consistency of timeframe on CQs
Paul McGrady
43:44
Same time period for other C.Q.'s is fine
Anne Aikman-Scalese
43:45
hand up
Cheryl Langdon-Orr
44:02
Hands @Jeff
Cheryl Langdon-Orr
44:11
we are pinging him people ;-)
Paul McGrady
44:14
@Jeff - correct
Cheryl Langdon-Orr
44:18
OK
Paul McGrady
47:31
@Jeff- reversing the sentence order is fine. The way it was written before could relate to a modification of an application outside of the private resolutions we are discussing
Paul McGrady
48:21
We don't need a public comment is someone just updates their email address.
Justine Chew
49:28
I see Jim's point.
Anne Aikman-Scalese
49:46
hand up
Jamie Baxter
51:08
+1 Anne
Paul McGrady
51:20
Once a trade secret is disclosed, it isn't one anymore. If anyone wants Applicants to disclose trade secrets, then we need confidentiality provisions baked into the Terms and Conditions with a right to sue Evaluators and ICANN for disclosure.
Justine Chew
52:42
Sure @Anne, just to discourage an Applicant from simply says everything is trade secret.
Paul McGrady
52:45
@Jeff - will applicants be required to disclose a trade secret in order to get past the Evaluator? Yikes!
Paul McGrady
53:17
then we need confidentiality provisions baked into the Terms and Conditions with a right to sue Evaluators and ICANN for disclosure
Jim Prendergast
53:53
is there any issue with putting that kind of language in there? (aside from ICANN GC objecting??)
Justine Chew
54:09
+1 Jeff, we need to discourage an Applicant from simply saying everything is a trade secret.
Anne Aikman-Scalese
54:39
There are systems for disclosing trade secrets confidentially under applicable trade secret law. Disclosure can be made to the Evaluator without disclosing to the public where measures are taken to preserve the trade secret.
Donna Austin, Neustar
54:44
@Paul, is it a trade secret only up until the point that the TLD is operational?
Elaine Pruis
55:30
“If evaluator believes applicant may not be submitting a good faith application” that would leave it up to the applicant to submit an application that doesn’t raise eyebrows, so they don’t have to disclose trade secrets
Justine Chew
56:32
@Paul, how would an evaluator evaluate an application without necessary full information? If we fix an obligation to maintain anything marked confidential, that may work. Have to think about it.
Justine Chew
57:00
+1 Jeff, exactly
Anne Aikman-Scalese
57:28
hand up
Jim Prendergast
58:19
If its a registry service, new or old, it has to go into Schedule A and be reviewed
Kathy Kleiman
58:34
I came in a little late - shouldn't we have some time to review these proposed edits?
Justine Chew
58:36
@Paul I think the angle you putting forward is something that is best determined by an evaluator.
Cheryl Langdon-Orr
59:17
@Kathy yes we are giving time this is just a walk through the edits
Kathy Kleiman
59:26
Tx Cheryl.
Justine Chew
59:28
Which is exactly why Jim is correct to ask for time for ALL of us to assess these changes properly.
Jeffrey Neuman
59:53
I think we can move on after Anne's comment
Paul McGrady
01:00:11
@Justine - no issue with more time. I have been on many calls when we have had to go through other people's changes on the fly and really wished for more time.
Kathy Kleiman
01:00:50
+1 Anne - this seems a little premature for consideration.
Jeffrey Neuman
01:00:59
All I was saying is that we don't need that sentence in there. Silence on that legal element does not imply a forced disclosure.
Jeffrey Neuman
01:01:03
But we can move on
Paul McGrady
01:01:24
@Anne - would be great if ICANN and Evaluators would enter into an NDA and allow lawsuits in court if there was a breach. Right now that isn't in the AGB.
Kathy Kleiman
01:03:13
Is there a way to see the original version without Paul's edit?
Jim Prendergast
01:04:44
limiting it to sealed bids for only last resort auction is substantive.
Jim Prendergast
01:06:19
ill take it on board with all the other changes
Paul McGrady
01:06:24
I just clarified the language to make it clear that sealed bids are just for last resort auctions.
Rubens Kuhl
01:07:00
And even if the sealed bid is not prescribed as method for private auctions, most applicants will choose the same method as the last resort one.
Anne Aikman-Scalese
01:07:20
@Paul - Evaluators are third parties, aren't they? Are you sure they could not enter into an NDA?
Greg Shatan
01:07:25
Money is fungible.
Donna Austin, Neustar
01:07:53
It's a substantive change from Jim
Rubens Kuhl
01:08:03
It makes sense for applicants to choose the same model.
Paul McGrady
01:08:08
@Donna- correct
Rubens Kuhl
01:08:19
But it's their choice.
Donna Austin, Neustar
01:08:21
Jim's proposal
Donna Austin, Neustar
01:09:30
But, I don't think there was agreement on Jim's proposal that sealed bids be in play for private auctions
Elaine Pruis
01:09:36
How else can we prevent reshuffling of funds? What other ideas are out there?
Paul McGrady
01:09:38
@Jamie - that was a proposal that has been brought up several times with no agreement around it.
Greg Shatan
01:09:44
Trying to prevent rolling money from one auction to another is likely to benefit the largest and most sophisticated entrants, because they will have other financing methods available.
Jim Prendergast
01:10:06
@Donna and Paul Show me where we address the Boards concern with gaming auctions to fun other applications? I have put forth a proposals to address that concern. I don't see any other ideas, except fro what jeff sugeested on the last call - all contention sets go to auction of last resort.
Rubens Kuhl
01:10:24
@Greg, rolling money from one auction to another is getting investments from unwilling investors.
Jamie Baxter
01:10:39
@Paul .. that is possible as well ..
Rubens Kuhl
01:10:46
So while some might have other motives for that, it's a bad thing.
Cheryl Langdon-Orr
01:11:05
It was indeed identified as an issue we needed to try and address Yes @Rubens
Donna Austin, Neustar
01:11:25
@Jim, I appreciate that it has been identified as a Board concern, but I'm not convinced that means we have to address it.
Paul McGrady
01:12:01
@Jim - the guardrails address that.
Rubens Kuhl
01:12:46
@Donna, it's a concern not only from the board. Addressing it as a good thing, but the solution needs to be better than not using it. So we can leave it unaddressed if we don't find a good solution, but trying is good.
Jim Prendergast
01:12:59
@Donna - if you want to run the risk that the board comes back and say you didn't address it - work on it - or worse - come up with their own ideas - that's one path. Id rather address it up front and avoid that inevitable delay
Rubens Kuhl
01:13:18
I hear static as well.
Elaine Pruis
01:13:18
yes static
Jim Prendergast
01:13:19
I hear it too - faint
Cheryl Langdon-Orr
01:13:29
I hear static
Cheryl Langdon-Orr
01:13:43
I am muted as well
Marc Trachtenberg
01:14:08
@Donna - so we have to address a concern from the GAC that closed Generics must be in the public interest but not an interest of the Board?
Rubens Kuhl
01:14:35
@Jim, the Board is a relevant stakeholder but not the only one. I agree with their concern so let's focus on the concern, not on who made it.
Greg Shatan
01:15:21
@Rubens, its not an investment, it’s not unwilling and they are not investors.
Jim Prendergast
01:15:34
@Rubens - I agree but the Board is top of food chain too.
Donna Austin, Neustar
01:15:35
As the working group we should consider all comments received and address them to the extent we can.
Paul McGrady
01:15:51
@Jeff - yes. Meant after
Donna Austin, Neustar
01:16:08
@Marc, the GAC advice issue is more complicated, but address doesn't mean agree and satisfy the concern in favour of who raised the concern.
Donna Austin, Neustar
01:17:10
We, as the WG members, are the ones who makes recommendations on policy, taking into account all the information available to us and comments received via the public comment process.
Greg Shatan
01:17:37
We.re missing out on the element of bad faith that distinguishes gaming from strategy.
Rubens Kuhl
01:17:49
The information should be exactly the same of the one required in evaluation. Perhaps referring to evaluation information instead of duplicating ?
Marc Trachtenberg
01:18:28
@Donna - I agree with you and will remind everyone of of this point when we are discussing closed generics
Paul McGrady
01:19:05
The guardrails requiring a bonified intent to use address the issue. Telling a Google or other large player that they can't use the money gained in a private auction for another auction is meaningless. You would have to force each applicant to reveal to ICANN, in advance, how many "new gTLD dollars" they have to spend and then keep them within the caps. Bonkers.
Jim Prendergast
01:19:35
roll back for sure
Paul McGrady
01:19:40
Nope. Not whatI am saying
Paul McGrady
01:19:45
hand up
Cheryl Langdon-Orr
01:19:56
Noted @Paul
Greg Shatan
01:20:21
There is no such thing as a “New gTLD Dollar”; money is fungible.
Donna Austin, Neustar
01:20:25
I agree with Greg that the difference between gaming and strategy is intent. Portfolio applicants no doubt has a strategy about winning as many strings as possible, but there was absolutely no guarantee that they would win every contention set they entered into.
Marc Trachtenberg
01:20:56
How to we determine an applicant's intent?
Elaine Pruis
01:21:16
It should stay in both sections,
Elaine Pruis
01:21:52
or else say “Any and all contention resolution”
Elaine Pruis
01:22:40
I cannot support private resolutions without transparency requriements included
Paul McGrady
01:23:06
@Jeff - will need to rework it. It makes little sense for non-auction applicants to have to reveal anything that auction of last resort applicants have to reveal.
Jeffrey Neuman
01:23:11
@Marc - that is the biggest question and why we are putting in transparency.
Jeffrey Neuman
01:23:35
@Paul - Disclosure is the key protection against abuse
Jeffrey Neuman
01:23:38
in this model
Paul McGrady
01:23:47
+1 Donna
Marc Trachtenberg
01:24:32
Exactly - its not possible to determine intent even with transparency unless we have a bunch of psychics on staff like in Minority Report.
Rubens Kuhl
01:24:40
@Paul, it makes sense to disclose that. Whether we include it or not is a matter of discussion.
Kathy Kleiman
01:25:20
That makes sense
Anne Aikman-Scalese
01:27:21
@Steve j- reference it in Application CHange Request section as Requiring public comment
Paul McGrady
01:27:26
@Jeff - forcing disclosures for JVs beyond what last resort auction participants have to do is a solution in search of a problem. As Jim mentioned on our last call, JVs were not allowed so there has been no abuse of JVs.
Steve Chan
01:27:47
@Anne, I understand
Jim Prendergast
01:28:16
exactly Jeff
Rubens Kuhl
01:28:19
@Paul do you mean JVs at application time or during contention set resolution ?
Elaine Pruis
01:28:22
+1 Jeff
Justine Chew
01:28:33
+1 Jeff, we need data for ALL types of resolution
Paul McGrady
01:28:35
@Rubens - contention sets.
Jim Prendergast
01:28:47
you covered it
Paul McGrady
01:29:02
@Jeff- we should at least let a problem materialize before we try to fix it.
Elaine Pruis
01:29:43
Did any of those things happen in the last round?
Justine Chew
01:31:09
+1 Jeff, we need data to be assess the WHOLE program. Also the "problem" is foreseeable, so we should absolutely try to reasonably address prevention of it.
Rubens Kuhl
01:31:24
We are introducing new mechanisms, like JV resolution, and they can introduce new problems, not only intended consequences. So if we are adding something, we can also add a mitigation.
Jim Prendergast
01:31:52
wasn't a problem because it was explicitly banned. If you want to remove the ability to form JVs to solve contention sets we can discuss that Paul. that would also eliminate problems
Jeffrey Neuman
01:32:43
@Paul - If there are no disclosure requirements, then we will never know if there were problems or not
Jamie Baxter
01:32:43
+1 Elaine
Anne Aikman-Scalese
01:32:48
+1 Elaine
Paul McGrady
01:33:23
@Jim- buy why? A JV literally is two parties wanting to run a registry together, not make money on not running it. It is the opposite of what the Board was concerned about. We are just making the problem up wholesale,
Paul McGrady
01:34:07
We are would be saying "JV's you need to disclose a lot of information because you really want to run a TLD so much you decided to work together."
Rubens Kuhl
01:34:10
Number 2 also happened with no bad faith
Anne Aikman-Scalese
01:34:32
@Paul - a JV can be many things and may not actually involve two parties running the registry "together".
Paul McGrady
01:34:57
Old. Sorry about those old hands.
Laxmi Prasad Yadav
01:35:42
good morning everyone from Nepal. Extremely sorry for being delay
Paul McGrady
01:35:49
@Anne - if two parties form a third to run a registry, then they are both involved in running the registry. We really are chasing ghosts and goblins here.
Rubens Kuhl
01:36:26
@Paul, there could be some gremlins too.
Paul McGrady
01:36:40
@Rubens - LOL
Marc Trachtenberg
01:36:49
Hand
Jim Prendergast
01:37:14
Paul - two separate issues. One is directly responding to board concerns. The second is as Elaine just said and other like Rubens mentioned in chat - we have the opportunity to mitigate future problems now that JVs are allowed. JVs are not inherently bad but who is party to them and how other members of a contention set are disposed of are concern to ICANN.
Paul McGrady
01:37:22
@Jeff - again not disagreement. Just redundant with other material above.
Justine Chew
01:37:23
Agree @Jeff, I object to crossing out potential loss of registry.
Elaine Pruis
01:37:48
math at midnight
Anne Aikman-Scalese
01:38:19
@Paul - we are using the term "JV" very loosely here. As you know, there are lots of ways to modify powers and responsibilities and liabilities under many different forms of business combinations of various types.
Donna Austin, Neustar
01:38:43
Agree with Marc, you can't guarantee you would win all contention set resolutions.
Paul McGrady
01:39:09
@Marc - how about "inference" rather than rebuttable presumption?
Marc Trachtenberg
01:39:26
@Paul - same problem,
Donna Austin, Neustar
01:39:31
Sorry for my ignorance, but what is a rebuttable presumption?
Marc Trachtenberg
01:39:50
@Donna - it means guilty until proven innocent
Paul McGrady
01:39:59
@Donna - it is when a defendant is presumed guilty until they prove they aren't.
Rubens Kuhl
01:40:01
(2) is actually impossible - ICANN requires delegation within 12 months.
Donna Austin, Neustar
01:40:04
Thanks Marc
Jim Prendergast
01:40:24
ban private auctions and you eliminate the problem. kind of simple. But if people insist on them, then we need assurances that address the boards concerns
Rubens Kuhl
01:40:30
I thought (2) said "launch".
Donna Austin, Neustar
01:40:36
and Paul.
Anne Aikman-Scalese
01:40:37
@Jeff - So is the default if we do not agree on all this language the 2012 implementation of "no JV"?
Marc Trachtenberg
01:40:55
I am fine with no private auctions but all other private resolutions permitted
Paul McGrady
01:41:13
@Jim- ban interfering with private auctions and you also have no problem. Also simple. Let the free market work. ICANN is supposed to be a private sector...
Rubens Kuhl
01:41:17
But now (2) is actually impossible - ICANN requires delegation within 12 months.
Paul McGrady
01:41:25
@Jeff - launch is better
Rubens Kuhl
01:41:33
"(b) ICANN may, upon notice to Registry Operator, terminate this Agreement if Registry Operator fails to complete all testing and procedures (identified by ICANN in writing to Registry Operator prior to the date hereof) for delegation of the TLD into the root zone within twelve (12) months of the Effective Date. Registry Operator may request an extension for up to additional twelve (12) months for delegation if it can demonstrate, to ICANN’s reasonable satisfaction, that Registry Operator is working diligently and in good faith toward successfully completing the steps necessary for delegation of the TLD. Any fees paid by Registry Operator to ICANN prior to such termination date shall be retained by ICANN in full."
Marc Trachtenberg
01:42:04
Launch, delegation whatever - still not a good proxy for bad faith intent
Paul McGrady
01:42:19
Isn't "launch plan" a defined term? Seems like we would have to know what launch means to have a launch plan
Paul McGrady
01:42:46
May not must
Paul McGrady
01:43:20
Factors work
Marc Trachtenberg
01:43:44
This will just create more disputes. We are making more of a problem then we are solving
Greg Shatan
01:43:50
Factors is better.
Paul McGrady
01:43:59
Factors is better
Marc Trachtenberg
01:45:12
And who considers these factors?
Steve Chan
01:45:27
Document here: https://docs.google.com/document/d/1vBckhFQCCQ-zyvfGGcDB3NWQhodVsffdqbyb6kTwXL4/edit?pli=1#
Rubens Kuhl
01:46:05
Sorry but I have to drop now.
Marc Trachtenberg
01:48:10
me too
Julie Bisland
01:49:01
noted Marc and Rubens, thank you
Kathy Kleiman
01:50:03
+1
Donna Austin, Neustar
01:52:14
We do need some flexibility here to support the intent of the SPIRT, it may not actually be possible at the time the SPIRT is constituted to find someone who was on this WG.
Kathy Kleiman
01:52:40
we spent a lot of time talking about this.
Paul McGrady
01:53:35
Isn't it a little late to be doing a tonsillectomy on this plan?
Donna Austin, Neustar
01:54:09
Particularly if you don't have tonsils Paul.
Paul McGrady
01:54:25
@Donna - ha!
Paul McGrady
01:57:48
@Kathy - would this work? 1. Disclosed in deliberations. 2. Abstain from consensus.
Cheryl Langdon-Orr
01:58:48
Sorry my Zoom crashed for a while
Cheryl Langdon-Orr
01:59:52
That was what was meant by "Continuous Disclosure"in our conversations earlier
Julie Bisland
02:00:12
NEXT CALL: Monday, 27 July 2020 at 15:00 UTC for 90 minutes
Anne Aikman-Scalese
02:00:32
@Kathy - there may be professional conduct rules that prevent you as an attorney from saying you represent X client in X application. The privilege belongs to the client.
Kathy Kleiman
02:01:28
let's work on the wording.
Paul McGrady
02:01:36
@Anne - I hear you. We can find a way to make that work
Anne Aikman-Scalese
02:01:56
Thanks guys
Greg Shatan
02:02:05
One could abstain or refuse themselves.
Greg Shatan
02:02:13
recuse....
Cheryl Langdon-Orr
02:02:58
Thx Everyone! Again lots covered off today were hopefully getting closer to the end of this tunnel... Bye for now...