[nc-udrp] A note to the GNSO

[Ethan Katsh <katsh@legal.umass.edu>]

        

I have
sent the following to Bruce Tonkin, Chair of the GNSO. If you disagree
with my assessment, you might send your own assessment to Mr.
Tonkin.

Ethan

-----------------------------

Mr. Bruce Tonkin
Chair
ICANN Generic Names Supporting Organization

Dear Mr. Tonkin:

        

I am
writing as a member of the UDRP Review Task Force and as a person who has
worked, in various ways, to assist both ICANN and the UDRP to function as
efficiently and legitimately as possible. I have been reading the minutes
of past GNSO meetings and even listened to the recordings of some GNSO
teleconferences. I am prompted to write this message because I noticed
that the agenda for the GNSO meeting in Rio next week does not include
anything about the UDRP review. Instead, the UDRP review is listed as an
agenda item for the teleconference in late April. This concerns me
because it suggests that you and other members of the Council may be
unaware that the Task Force has essentially stopped functioning.

        

If I bear
some responsibility for the fact that the Task Force has done no work on
a report or even a draft report, so be it. I have urged the Chair of the
Task Force, as the task force archives will show
<http://dnso.dnso.org/clubpublic/nc-udrp/Arc00/mail10.html>,
to establish a process for the Task Force to discuss the many different
issues, some large, some small, that a review of the UDRP should involve.
About a month ago, I wrote to the Chair and indicated that if he did not
do this, I would submit my own assessment of the UDRP at the June ICANN
meeting in Montreal. If necessary, I will still do this but I wanted to
alert you as well that there is no forward movement, indeed no current
activity at all, in this task force’s work. This reflects poorly on
myself and other members of the Task Force, on ICANN, and on the
GNSO.

        

It is
possible that other Task Force members will see progress where I see
none. Perhaps you can inquire of some of them concerning this. All I know
is that during the DNSO Names Council Teleconference on 3 October 2002
<http://www.dnso.org/dnso/notes/20021003.NCteleconf-minutes.html>
you yourself stated that “the question is whether there is a process
moving forward on the UDRP and if not, it should be brought to the Names
Council for a decision.” The minutes then indicate the following
exchange:

Bruce Tonkin suggested looking at the Whois task force, where a report was put out for public comment having summarised the survey findings and preliminary recommendations made, and urged the task force to produce a report that used as input the results of the survey as well as the expertise and experience of the task force members in using the UDRP process. The alternative was to close the task force and start again. J. Scott Evans was in favour of maintaining the current task force.

Discussion was in favour of using the value added expertise in the task force in addition to the survey.

Bruce Tonkin suggested putting this on the agenda for the November meeting, and that the task force establishes meeting dates so that a report and initial recommendations can be developed for discussion at that meeting.

        

It is
now five months later and we have no scheduled meeting dates. I truly
hope that Mr. Evans, the Task Force Chair, is in good health and that it
is not some misfortune that accounts for the lack of any communication
between him and the Task Force in more than a month. Unfortunately, if
you will look at the archives, you will see that there is no reason,
other than lack of leadership, why nothing is happening. With proper
leadership, I believe that the Task Force could provide the Council by
June with a list of items concerning the UDRP that have been looked at
and discussed, a list of recommendations for change about which consensus
exists, and a list of other recommendations favored or not favored by a
majority. If the GNSO does not intervene, in June we will be no further
along than we are now.

I might suggest that members of the Council look at
<http://www.dnso.org/dnso/notes/2001.NC-tor-UDRP-Review-Evaluation.html>
where the Task Force received an extension so that further work on the
survey could be done. A timeline was then laid out in which the Task
Force was asked to provide its report to the Council in March. This has
not occurred and, indeed, the March I have just referred to is March,
2002, not March, 2003. My point is that the GNSO must accept the fact
that, without some intervention, this task force is not even on the road
to completing its work by March, 2004. 

The last report Mr. Evans gave to you, in November I believe, indicated a
commitment to have a draft report to you by the Rio meeting. As I have
stated, there is no such report. Most of the time devoted to the UDRP
review during that teleconference concerned not substantive issues but
questions about membership and representation. I do not wish to minimize
the importance of membership but the make-up of the task force is
irrelevant if nothing gets done. Indeed, at some point the current
members will decide that they do not want to be associated with a sham or
a farce and there will be no task force at all.

        

I was
willing to join the Task Force because the UDRP is an interesting
exercise in dispute resolution and I thought I might contribute to a
serious discussion of what, if any, changes in the UDRP should be
recommended. I continue to believe in the importance of this but I have
lost faith that any kind of serious review will occur if there is not
some intervention on your part. As you pointed out in October, other task
forces have conducted themselves much more systematically and
productively. I do not enjoy writing letters like this but it is not
clear to me that the members of the GNSO are aware of the serious lack of
progress and activity. You may or may not accept my assessment of what
has been occurring but please go through the emails at
http://dnso.dnso.org/clubpublic/nc-udrp/Arc00/mail6.html
 and determine for yourself what the Task Force has been doing or has not been doing.

        

Thank you for giving this your attention. I would be most grateful if you would send copies to the other members of the Council.

        

Sincerely,

Ethan Katsh
Professor and Director
Center for Information Technology
   and Dispute Resolution
University of Massachusetts
Amherst, MA
413-545-5879
katsh@legal.umass.edu
http://www.umass.edu/dispute