Subject: GA-DIGEST V1 #140
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST          Monday, September 4 2000          Volume 01 : Number 140

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

Date: Sun, 3 Sep 2000 16:25:02 -0700
From: Kent Crispin <[email-masked]>
Subject: Re: [ga] DNSO ICANN board member

On Sun, Sep 03, 2000 at 03:57:35PM -0700, Christopher Ambler wrote:
> > The press publishes many opinions.  Thanks for the entertaining pointer. 
> > For some reason it reminds me of one of my favorite headlines of all
> > times:
> > 
> >  WHAT THE US GOVERNMENT DOESN'T WANT YOU TO KNOW ABOUT THE ANTI-CHRIST!!
> 
> Of course. What you can't refute with facts, you ridicule with distraction.

There are no facts at issue.  The article is almost entirely composed 
of quotes from people with opinions.  The very first line is "One man's 
test is another's attempted hijack."  Becky Burr is the only person 
quoted with any objectivity.

I find it especially amusing that Karl Deninger and Richard Sexton are 
quoted as "Net caretakers close to the situation".

In a word, Chris, the article is garbage.

> Nobody's fooled.

I hope not.

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[email-masked]                           lonesome." -- Mark Twain
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Date: Mon, 04 Sep 2000 01:56:05 +0200
From: Jefsey Morfin <[email-masked]>
Subject: RE: [ga] DNSO ICANN board member

Dear Simon,
you respond to Roberto:

>>The main thing I am worried about is that two alt.roots have different
>>name servers for the same TLD.
>>And this I don't like.
>I agree. But certain facts of life are here to stay:
>
>1. Alt.roots have been created as a direct result of:
>    a. Network Solutions being granted a for-profit monopoly on the
>       most popular gTLDs (COM/NET/ORG)
>    b. IANA's inability to introduce competition to NSI by way of
>       new registries and TLDs
>    c. The .US registry's total failure to address the .US space
>    d. Internet community dissatisfaction with subsequent processes
>       (i.e. IAHC/gTLD-MoU/ICANN)
>    e. ICANN's obligation to prevent economic harm to NSI from
>       introducing competition
>2. Reserved TLDs (BCP32) exist which immediately create an alt.root
>3. Private corporations use Alternate Roots internally which often
>    duplicates the name space outside of the USG-root - normally to
>    secure the identity of internally used servers
>4. Private Roots exist which for whatever reason do not have a full
>    set of USG-root TLDs
>
>There is no guidance to establish checks and balances in any DNS server 
>which has been altered from the vanilla USG-root. I'm halfway through an 
>Internet Draft to try and ensure that there is a minimum supported 
>baseline (the USG root zone). Also I'm addressing discrepancies between 
>RFC2826 and BCP32, as well as other variations. The point is to provide a 
>common meeting ground and prevent a serious root fragmentation from happening.

I would be interested in assisting into such a draft preparation
as I feel that time is short now before we meet drastic changes
into the internet management under the pressure of international,
nsw projects and the www (world war three) between large
interests. If we could establish principles of cooperation before,
IMHO it would probably help many to survive the crisis and the
whole system to better cope with it.
Jefsey

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

Date: Mon, 04 Sep 2000 02:07:33 +0200
From: Jefsey Morfin <[email-masked]>
Subject: Re: (Fwd) Re: [ga] .sys and .wiz IP protection current approach

Hi! "jandl",
would you be informed: this issue has been nicely hanled for a long
- - apart from the rights I own to be on other files, being a registered
   corp, presented at the ICANN, etc..
- - apart from having no information on what that TLD has been set for
- - we entered into an agreement with Gene Marsh (we are waiting
   for his draft contract) to acquire whatever will be spelled in that
   contract. This is a very interesting piece of works since it is the
   first settlement ever between two clones turning down Roberto's fears.
   Gene and I stated that we wanted this common endeavor to serve
   as an experience to everyone and decided to publish everything
   but the invoved amount on the ORSC distribution list.
   (However I understand that Gene may be slow producing the
   draft as there are several issues creating problems due to the
   obvious inadequacy of RFC 2826)
All the best.
Jefsey

At 01:07 04/09/00, you wrote:
>You might want to check the ORSC root zone file.  You have a
>collision with an exsiting TLD which has been there for years.
>
>------- Forwarded message follows -------
>From:                   JandL <[email-masked]>
>To:                     [email-masked]
>Subject:                Re: [ga] .sys and .wiz IP protection current approach
>Send reply to:          [email-masked]
>Date sent:              Sun, 3 Sep 2000 19:06:58 -0400
>
>At 13:10 03/09/00, you wrote:
> >Marc, Jefsey,
> >
> >The 30-days waiting time was widely discussed at the IAHC timem
>few
> >years ago - gee, it is only three years, in fact, but it seems
>another
> >millennium ;>). The public enquiry clearly rejected it. Thios said,
>why
> >could not different Registries implement different policies? In a TLD
> >where TMs are stricly enforced, this would make sense , while in a
>TLD
> >for strictly individualm or non-commercial use this would not maker
> >sense. Regards Roberto
>
>Roberto,
>I did not propose that solution for every TLD. I just said that two
>TLD comities out of three I participate in have decided to study:
>
>-  UDRP enforcement after the matter defintion is included
>     (definition of the DN or what is quivalently used by these TLDs) -
>  TLD rules:
>     -  resale of domain name authorized, transfer authorized
>        between affiliates. So DN may be invested in projects.
>     -  provisional yet immediate operations granted for a new
>        domain name. UDRP authorized within the first 30 days
>        for TM owned having registered their TM during the last
>        30 days before the DN registration.
>    -   initial period: no registration for 3 months. At the end
>        of the 3 months, DN requested by a single registrants
>        are granted; DN requested by several registrants are
>        subject to an UDRP to determine the winner.
>
>The desired target is to create a de facto group of TLD of
>worldwide internet sub-classes. The DN notion is to be
>carefully though about as we introduce new concepts as
>formats (".sys") or rules (".wiz") which are more intellectual
>that industrial property oriented.
>Jefsey
>
>PS. FYI .SYS and .WIZ are to comities for the management
>by the registrants of respectively the ".sys" and ".wiz" TLDs
>incorporated under the French non-profit law.
>
>
>
>------- End of forwarded message -------

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

Date: Mon, 4 Sep 2000 07:50:19 +0200
From: "Alf Hansen" <[email-masked]>
Subject: RE: [ga] DNSO ICANN board member

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]]On Behalf Of Simon
> Higgs
> Sent: 4. september 2000 00:22
> To: [email-masked]
> Cc: [email-masked]; [email-masked]; [email-masked]; [email-masked]
> Subject: RE: [ga] DNSO ICANN board member
>
>
...
> >And this I don't like.
>
> I agree. But certain facts of life are here to stay:
>
> 1. Alt.roots have been created as a direct result of:
...

Alt.roots should not be created unless they follow the specs defined by the
IETF and the IAB. If Alt. roots have been created for other reasons, f.ex.
because some people disagree to certain aspects of ICANN/IANA, the Alt.
roots should be abandoned.

Best regards,
Alf H

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

Date: Mon, 04 Sep 2000 02:53:27 -0700
From: Simon Higgs <[email-masked]>
Subject: RE: [ga] DNSO ICANN board member

At 07:50 AM 9/4/00 +0200, Alf Hansen wrote:

> > -----Original Message-----
> > From: [email-masked] [mailto:[email-masked]]On Behalf Of Simon
> > Higgs
> > Sent: 4. september 2000 00:22
> > To: [email-masked]
> > Cc: [email-masked]; [email-masked]; [email-masked]; [email-masked]
> > Subject: RE: [ga] DNSO ICANN board member
>...
> > >And this I don't like.
> >
> > I agree. But certain facts of life are here to stay:
> >
> > 1. Alt.roots have been created as a direct result of:
>...
>Alt.roots should not be created unless they follow the specs defined by the
>IETF and the IAB.

There are no valid specs. That's the point. RFC2826 is implausible 
deniability for the existence of alt.roots. The IAB think that if they 
convince everyone that alt.roots don't exist, then the problems that 
created them will go away. Wrong answer.

The internet draft I'm working on is to set the guidelines of what is 
rational and acceptable to the community. The purpose is to set a boundary 
to prevent a major root fracture when ICANN runs out of steam (or money).

>If Alt. roots have been created for other reasons, f.ex.
>because some people disagree to certain aspects of ICANN/IANA, the Alt.
>roots should be abandoned.

Begging your pardon, but responses such as yours and RFC2826 are not 
acceptable. They do not address the problems that caused the alt.roots to 
be created in the first place. They certainly don't prevent alt.roots from 
being created. They do, unfortunately, show how completely out-of-touch the 
authors are with the internet community @Large.

Best Regards,

Simon Higgs

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It's a feature not a bug...

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

Date: Mon, 04 Sep 2000 12:36:41 +0200
From: Harald Tveit Alvestrand <[email-masked]>
Subject: [ga] [ADMIN] Crossposting

There have been a number of messages on the GA list that are crossposted to 
the [email-masked] and [email-masked] list.

Note that in general, crossposted messages won't get through to the GA 
list, and crossposting is therefore not a good way to ensure that you are 
heard.
The filters will be updated to ensure that the non-crossposting policy is 
followed.

                Harald
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+47 41 44 29 94
Personal email: [email-masked]

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

Date: Mon, 04 Sep 2000 12:54:45 +0200
From: Harald Alvestrand <[email-masked]>
Subject: RE: [ga] DNSO ICANN board member

At 15:22 03/09/2000 -0700, Simon Higgs wrote:
>There is no guidance to establish checks and balances in any DNS server 
>which has been altered from the vanilla USG-root. I'm halfway through an 
>Internet Draft to try and ensure that there is a minimum supported 
>baseline (the USG root zone).

I would not see great harm in an "alternate" root where the owners would 
automatically vacate within 24 hours any domain that was subsequently added 
to the ICANN roots; if changes to the baseline automatically meant that the 
alternate roots were changed to conform, most of the potential harm of 
alternate roots would be alleviated.

Neither would I see much point in such a construction.

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

Date: Mon, 04 Sep 2000 12:11:53 +0200
From: Harald Alvestrand <[email-masked]>
Subject: UDRP bad decisions (RE: [ga] Candidate positions on UDRP)

At 00:22 01/09/2000 -0700, Roeland M.J. Meyer wrote:
>If it is even one, it's bad news. However, I count more than 10, on a
>cursory count.

I think one of the missing pieces in the UDRP ruleset is a procedure for 
the independent review of dispute resolution providers' track record, and 
the resulting removal of a resolution service provider from ICANN's list if 
the track record is not found satisfactory.

Decisions come in 3 classes, I think:

- - Decisions that no reasonable person would challenge or call "bad"
- - Decisions that some reasonable persons would challenge or call "bad"
- - Decisions that are subsequently reversed in a court of law.

The count of cases in the middle category is not small, I think, and varies 
very much with the eye of the beholder.
Do you have a count of cases in the last category?

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Date: Mon, 04 Sep 2000 12:21:52 +0200
From: Harald Alvestrand <[email-masked]>
Subject: Re: [ga] Re: Weikers position on UDRP

At 18:57 01/09/2000 +0100, Louise Ferguson wrote:
>Surely setting a higher filing fee would act as a deterrent: $1500
>(depending or arbitrator) seems a low price for putting someone's business
>in jeopardy. This would also
>provide the panellist with realistic recompense for deciding what are often
>complex cases with >100 documents filed as evidence, sometimes in several
>languages.
>$4-5,000 (split arbitrator/panelists) seems a more reasonable fee to me, and
>is still a lot less than a lawsuit.

One reason for the UDRP going for low fees was to make the process 
available also to small companies who were victims of abusive domain name 
registration.

The UDRP discussions at WIPO focused a lot on getting the simple cases out 
of the way fast; the complex cases where > 10 documents were filed as 
evidence were intended to be moved to the normal legal system.

I think one of the failures of the UDRP is that the panelists have handed 
out decisions where they should have been saying "this is too complex to 
decide under the UDRP".

                 Harald

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Date: Mon, 4 Sep 2000 12:29:20 +0100
From: "Louise Ferguson" <[email-masked]>
Subject: Re: [ga] Re: Weikers position on UDRP

Harald wrote:
>
> One reason for the UDRP going for low fees was to make the process
> available also to small companies who were victims of abusive domain name
> registration.

Sure. But a company also usually pays lawyers several thousand $ to prepare
the case. In the Barcelona case I'd say the council probably spent >$30K (it
also filed 14 trademark applications identical to domain names in 3
different countries just before the complaint, in support of its complaint).
>
> The UDRP discussions at WIPO focused a lot on getting the simple cases out
> of the way fast; the complex cases where > 10 documents were filed as
> evidence were intended to be moved to the normal legal system.

In barcelona.com each side filed >60 'documents'. One 'document' filed by
the complainant consisted of 5 court decisions (each many pages) in 3
different languages. The panellist requested 3 extensions and still
delivered late.
>
> I think one of the failures of the UDRP is that the panelists have handed
> out decisions where they should have been saying "this is too complex to
> decide under the UDRP".

Agreed. But there is nothing in the rules or regs that I know of providing
for such a possible court of action in situations of 'size of the case',
only where the complaint is deemed inappropriate for UDRP in terms of it
being a commercial conflict (and in any case the document pack is delivered
to the panellist weeks after the complaint is formally accepted by WIPO).
Again, I really think there needs to be a filter mechanism before the case
goes to a panellist.
For a case to get a panellist hearing the complainant only has to
a) write a cheque for $1,500
b) provide a name, address and e-mail
c) write a complaint making a claim under the 3 criteria (could be 1/2 page
and then cut and paste the 'formal stuff').
In barcelona.com WIPO took just 15 minutes between receiving the complaint,
checking for 'technical compliance' and formally filing it with the domain
owner, so you could probably write anything and get it through.
That ANY such complaint automatically gets a panellist hearing, having
fulfilled the 'technical requirements' (the one that seems to concern WIPO
most is the cash), justs opens the door wide to opportunists.
I think complainants with weak cases are deliberately going for UDRP becasue
they know they will lose in court - not necessarily for financial reasons.
Many complainants are anything but poor, but the domain owners often are, so
complainants can be pretty sure that if they win at UDRP there will be no
follow-up court case.
Louise
>
>                  Harald
>

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Date: Mon, 04 Sep 2000 05:46:45 -0700
From: Dave Crocker <[email-masked]>
Subject: Re: UDRP bad decisions (RE: [ga] Candidate positions on UDRP)

At 12:11 PM 9/4/00 +0200, Harald Alvestrand wrote:
>At 00:22 01/09/2000 -0700, Roeland M.J. Meyer wrote:
>>If it is even one, it's bad news. However, I count more than 10, on a
>>cursory count.
>
>I think one of the missing pieces in the UDRP ruleset is a procedure for 
>the independent review of dispute resolution providers' track record, and 
>the resulting removal of a resolution service provider from ICANN's list 
>if the track record is not found satisfactory.

Formal, careful, on-going monitoring would be a extremely 
helpful.  Although based on well-established legal principals and 
practises, the "venue" of the UDRP makes it an experiment. Experiments need 
monitoring and refinement.

Besides needing a procedure for removing authorization of a UDRP service 
provider, there needs to be a procedure for removal of UDRP 
arbitrators.  The service providers tend to be little more than brokers for 
service.  The "judges" are independent and vary in their quality.  When a 
problem is not inherent in UDRP
policy, it appears to lie with individual judges.

>- Decisions that no reasonable person would challenge or call "bad"
>- Decisions that some reasonable persons would challenge or call "bad"

d/

>- Decisions that are subsequently reversed in a court of law.

A sense of the percentages of these, out of the total, would be enormously 
helpful.

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Date: Mon, 4 Sep 2000 15:26:05 +0100
From: "Louise Ferguson" <[email-masked]>
Subject: Re: UDRP bad decisions (RE: [ga] Candidate positions on UDRP)

Dave crocker wrote:
> Besides needing a procedure for removing authorization of a UDRP service
> provider, there needs to be a procedure for removal of UDRP
> arbitrators.  The service providers tend to be little more than brokers
for
> service.  The "judges" are independent and vary in their quality.  When a
> problem is not inherent in UDRP
> policy, it appears to lie with individual judges.

In a conversation I had with Francis Gurry (assistant DG WIPO) a couple of
weeks ago, he stated "the performance of individual panellists is under
continuous quality review". Has any panellist disappeared from the list yet?
Removal would be interpreted as an admission that their work was not up to
scratch, so might take place later rather than sooner (after the rogue
decisions). How is the 'quality' of a panellist measured? If it is WIPO that
measures their quality (on the basis of decisions filed? - what other
evidence is there?), where does that leave WIPO's claim that it is merely
administering a service?
.
I believe that some panellists are not at all au fait with the Internet.
What are the selection criteria? Does anybody know? Is there any training?
Is the source of panellists for each organisation determining the
differences in outcomes?

With WIPO's increasing workload - due to forum shopping - it may either have
to delay cases or hire more panellists. What are the implications for
panellist quality and decision quality? Or will all (other) panellists end
up working for WIPO, resulting in changes in decision stats?

Apologies for so many question marks, but the subject does throw up so many
questions to which we don't seem to know the answers.
Louise Ferguson
>
>
> >- Decisions that no reasonable person would challenge or call "bad"
> >- Decisions that some reasonable persons would challenge or call "bad"
>
> d/
>
> >- Decisions that are subsequently reversed in a court of law.
>
> A sense of the percentages of these, out of the total, would be enormously
> helpful.

>
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Date: Mon, 04 Sep 2000 11:02:18 -0400
From: Dennis Schaefer <[email-masked]>
Subject: Re: [ga] Re: Weikers position on UDRP

Harald Alvestrand wrote:

> At 18:57 01/09/2000 +0100, Louise Ferguson wrote:
> >Surely setting a higher filing fee would act as a deterrent: $1500
> >(depending or arbitrator) seems a low price for putting someone's business
> >in jeopardy. This would also
> >provide the panellist with realistic recompense for deciding what are often
> >complex cases with >100 documents filed as evidence, sometimes in several
> >languages.
> >$4-5,000 (split arbitrator/panelists) seems a more reasonable fee to me, and
> >is still a lot less than a lawsuit.
>
> One reason for the UDRP going for low fees was to make the process
> available also to small companies who were victims of abusive domain name
> registration.
>
> The UDRP discussions at WIPO focused a lot on getting the simple cases out
> of the way fast; the complex cases where > 10 documents were filed as
> evidence were intended to be moved to the normal legal system.

The notion that the number of documents filed is what makes a case complex
deserves a
second look.  It is arguably the cases in which the registrant doesn't even file
a reply
that deserves the greatest scrutiny, as these are the most likely to involve who
have
simply surrendered their rights when confronted with a challenge. The cost of
preparing a
response which might serve to trigger a damage suit under US law would be a
strong
incentive for many to simply give up.

>
>
> I think one of the failures of the UDRP is that the panelists have handed
> out decisions where they should have been saying "this is too complex to
> decide under the UDRP".

Francis Gurry of WIPO is quoted in this morning's NY Times as saying that UDRP
cases only involve "black and white issues" that are do not require any balancing

of the rights of the parties involved.  Maybe the notion that there is any form
of law
that is ever purely black and white is the fatal flaw in the UDRP.

>
>
>                  Harald
>
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Date: Mon, 4 Sep 2000 16:19:36 +0100
From: "Louise Ferguson" <[email-masked]>
Subject: Re: [ga] Re: Weikers position on UDRP

> Harald Alvestrand wrote:
>
> > One reason for the UDRP going for low fees was to make the process
> > available also to small companies who were victims of abusive domain
name
> > registration.
> >
> > The UDRP discussions at WIPO focused a lot on getting the simple cases
out
> > of the way fast; the complex cases where > 10 documents were filed as
> > evidence were intended to be moved to the normal legal system.
>
> The notion that the number of documents filed is what makes a case complex
> deserves a
> second look.

True, it doesn't make for complexity, but the process does not set a limit
on material submitted, and in a short time the panellist has to wade through
what may be a large boxful of material if he/she is to fairly consider each
side's case (do they always?). It's time-consuming if one is to do the job
properly.

It is arguably the cases in which the registrant doesn't even file
> a reply
> that deserves the greatest scrutiny, as these are the most likely to
involve who
> have
> simply surrendered their rights when confronted with a challenge.

In some cases it may be clear why. But it was pretty odd that the owners of
StMoritz.com didn't respond. A company with a string of operational domains.
Are some people just ignoring the UDRP now?

> > I think one of the failures of the UDRP is that the panelists have
handed
> > out decisions where they should have been saying "this is too complex to
> > decide under the UDRP".
>
> Francis Gurry of WIPO is quoted in this morning's NY Times as saying that
UDRP
> cases only involve "black and white issues" that are do not require any
balancing
>
> of the rights of the parties involved.  Maybe the notion that there is any
form
> of law
> that is ever purely black and white is the fatal flaw in the UDRP.
>
He's come up with this 'black and white' and 'cut and dried' quite a few
times. If he believes this himself - he may have convinced himself through
repetition - then there seems little hope of reform from within.

Louise
>
>
> >
> >
> >                  Harald
> >
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Date: Mon,  4 Sep 2000 17:57:53 +0200 (MET DST)
From: "Roberto Gaetano" <[email-masked]>
Subject: RE: [ga] DNSO ICANN board member

Simon,
>>
>>The main thing I am worried about is that two alt.roots have different

>>name servers for the same TLD.
>>
>>And this I don't like.
>
>I agree. But certain facts of life are here to stay:
>
>1. Alt.roots have been created as a direct result of:
>    a. Network Solutions being granted a for-profit monopoly on the
>       most popular gTLDs (COM/NET/ORG)
>    b. IANA's inability to introduce competition to NSI by way of
>       new registries and TLDs
>    c. The .US registry's total failure to address the .US space
>    d. Internet community dissatisfaction with subsequent processes
>       (i.e. IAHC/gTLD-MoU/ICANN)
>    e. ICANN's obligation to prevent economic harm to NSI from
>       introducing competition
>2. Reserved TLDs (BCP32) exist which immediately create an alt.root
>3. Private corporations use Alternate Roots internally which often
>    duplicates the name space outside of the USG-root - normally to
>    secure the identity of internally used servers
>4. Private Roots exist which for whatever reason do not have a full
>    set of USG-root TLDs
>
>There is no guidance to establish checks and balances in any DNS server
 
>which has been altered from the vanilla USG-root. I'm halfway through 
an 
>Internet Draft to try and ensure that there is a minimum supported 
baseline 
>(the USG root zone). Also I'm addressing discrepancies between RFC2826 
and 
>BCP32, as well as other variations. The point is to provide a common 
>meeting ground and prevent a serious root fragmentation from happening.

>

IMHO the problem is not only consistency of the alt.root with a.root, 
but also consistency between alt1.root and alt2.root, which is, still 
IMHO, much more difficult to achieve.

>>
>>First of all, the intention was not at all to fragment the root and to

>>start an alt.root.
>
>The road to hell is paved with good intentions. It doesn't matter what 
the 
>intent is if the end result is undesirable. Forcing the 7 CORE TLDs 
into 
>the root without accountability to the internet community was 
undesirable. 

Do you have any evidence of the CORE TLDs having been in the root?

Anyway, I guess we have to agree that we disagree on the reading of the 
facts of those days, and it serves no practical purpose to bring this 
subject again in waves.

(I maintain that I am better placed to know the intentions of CORE at 
that time, since I was a member thereof, but it is obvious that there is
 no reason why people should believe me, so we may continue this 
exercise forever)

>Splitting the IANA root into two distinct authorities like the 
>IAHC/gTLD-MoU/CORE folk did was worse than starting a separate 
alt.root. 
>Users of an alt.root make the choice to use the alt.root. Users of the 

>ICANN root are not given that choice, and their queries for the CORE 
TLDs 
>would have failed 50% of the time because the USG-controlled servers 
would 
>not have supported them causing instant root fragmentation.

Exactly.

That's exactly why it has not been attempted, in spite of what some 
believe.

>
>>As for the overseeing role of POC, I will not argue, just notice that 
I
>>was not a POC member at that time.
>>
>>For the record, I spoke against the "experiment" at the CORE Assembly 
in
>>  Washington, DC, that was ongoing when the events happened. I assume 
I
>>would have had the same attitude in POC ;>).
>
>OK, I'll let that slide. ;-)
>

;>)

Regards
Roberto
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Date: Mon, 04 Sep 2000 12:00:38 -0400
From: Dennis Schaefer <[email-masked]>
Subject: Re: [ga] Clarification w/r/t Jonathan Cohen's Involvement inWorking  Group B

Hi Michael --

Thank you, once again, for the type of courteous reply that you always give to
opposing viewpoints.

However, I take exception to your characterization of Working Group B's result
as
a triumph of diversity, without which the WIPO recommendations would have
been adopted.

From the very first day, the group was confounded by  questions of legal
authority unlike
anything confronted by the UDRP.   Whereas all countries have trademark laws
from which to extrapolate
decisions on cases of alleged infringement, relatively few countries were
signatories to the Paris Convention and TRIPPs agreements
which created reciprocity for Famous Marks. This created a large school of
thought advocating some
effort to build a bridge between the conventional sources of international law
and the WIPO recommendations.

As an individual representing no one  but himself,  I had no bias against a
Famous Marks list per se  -- (in fact, I
endorsed the Alvestrand position) --  but I had serious problems with the way
the group itself operated.
The LA meeting was open only to attendees, which limited it to industry
representatives.  Its results were
not disseminated to all members, creating confusion as to what was settled
versus open.   (Not unlike a
corporate model of management by obfuscation.)  Jonathan Cohen's tardy
resolution of his status on the
group after being elected to the Board contributed to this.

In addition, after weeks of lively discourse, with some clear cleavages
developing, votes
were called with little notice, followed by a stampede of what I came to call
"sleeper voters"  -- people
who never participated in the dialogue, never contributed.   They only showed up
to vote,  converting
what had been a consensus-building process into the tyranny of the majority.

Industry can provide busloads of sleepers to a process such as this -- indeed
this is how trade associations
routinely operate.  Individuals cannot do this.

Since DNSO has rejected an individuals' constituency -- and since some ICANN
board members even deny
that individuals have a legal interest in domain names --  the Working Group
process is probably not a likely
venue for democracy gush into ICANN.

However,  Working Group B should have done much better than it did.   It is a
case study for DNSO to
observe that without safeguards for individual participation,   DNSO is on a
collision course with civil
liberties.   DNSO needs serious reform from within.

Regards

>Dennis

"Michael D. Palage" wrote:

> Dear Dennis:
>
> You raise several excellent points that I would like to provide some further
> clarification on.
>
> 1) Thanks for the Political Correct "PC" label.  There have been many
> e-mails that I have written only to delete them before hitting the send
> button. The ICANN process has a way of raising one's blood pressure.
>
> 2) I genuinely regreted your resignation from Working Group B and I asked
> you on several occasions to reconsider your decision.  As I have disclosed
> in most reports associated with Working Group B, the majority of the
> participants were trademark owners. However, because of the restrictions
> placed on participation in Working Group A, any one that asked to join was
> added to the list. I did not believe that I had the authority to pick and
> choose participants. During the first months I spent a significant amount of
> time getting representation from ALL constituencies. After LA, I saw that
> the heavy concentration of trademark types was a problem. That is why I
> contacted Eric Menge and asked for his help in increasing participation
> among the little guys.  As a result, Eric was able to arrange for several
> Working Group B teleconferences. As I reported to the Names Counsel, lack of
> proper funding limits the outreach and effort of a Working Group.
>
> 3) As a trademark attorney I acknowledge that trademark rights are NOT
> absolute. I also acknowledge that there are probably situtations that exist
> where a trademark owner prevails in a dispute NOT based upon the merits of
> the case but because of the economics of the situation. However, life is not
> fair. Although the trademark community had a significance representation in
> Working Group B, they did not dictate the process (but they did have a LOUD
> voice). If they did hijack the process I believe that WIPO would be working
> on the creation of a Famous Marks list as we speak. The fact that Working
> Group B reached consensus in NOT creating a list is a MAJOR departure from
> the WIPO report. To my knowledge Working Group A & C pretty much adopted the
> WIPO recommendations in whole. I think that the remaining non-trademark
> Working Group B participants made a difference and it should not be
> overlooked.
>
> 4) I agree with you that Jamie is a valuable addition to the ICANN family.
> People like Jamie, Allen Davidson and Kathy Kleiman keep people honest and
> that is invaluable. That is why I stated that he was a qualified candidate.
>
> -----Original Message-----
> From: Dennis Schaefer [mailto:[email-masked]]
> Sent: Wednesday, August 30, 2000 8:37 PM
> To: Kristy
> Cc: [email-masked]; [email-masked]
> Subject: Re: [ga] Clarification w/r/t Jonathan Cohen's Involvement
> inWorking Group B
>
> Kristy--
>
> Michael Palage has written a nice, politically-correct assessment  of the
> candidates.
>
> Let me offer a politically incorrect alternative.
>
> I was one of the original volunteers for Working B.  I was also one of the
> people
> who endorsed Jonathan Cohen for the Board.   I came to regret both these
> actions.
>
> Michael is a lawyer, and he seems to benefit from a job that permits him to
> travel to meetings, and to work intensively on this topic.  I give him total
> credit for what he has done.
>
> I also fault him for failing to include individuals who make up the vast
> majority
> of domain name owners, and who do not have his resources.   That blind spot
> has
> made him contribute to the evolution of a Web that is little more than a
> global
> shopping mall.  If he would care to argue publically about the serious
> defects
> that caused me to resign from Working Group B, I would be more than happy to
> do
> so.
>
> If Michael (and Jonathan) could come to realize that free speech trumps
> commerce
> -- and that democracy is better than autocracy --   both of them would be
> far
> better candidates.
>
> Vote for Jamie Love --  the Net is a human resource for the benefit of all
> people.
>
> >Dennis Schaefer
>
> Kristy wrote:
>
> > Do any of these folks have any technical knowledge of the systems?
> >
> > Could any of these folks build a network and get it online with hardware
> and
> > software only to help them along?
> >
> > ?
> >
> > ~k
> >
> > At 01:22 PM 8/30/2000 , Michael D. Palage wrote:
> > >I am writing this email in response to a posting last week regarding
> > >Jonathan Cohen's involvement in Working Group B. Let me begin by
> disclosing
> > >that I nominated Jonathan for reelection to the ICANN Board. I believe
> that
> > >I am qualified to describe Jonathan's involvement in Working Group B, as
> I
> > >was the original co-chair with Jonathan. After his election to the ICANN
> > >Board, I functioned as sole chair for several months until the Names
> Counsel
> > >appointed Kathy Kleiman and Philip Sheppard as joint Names Counsel
> Liaisons.
> > >
> > >Working Group B was created last May at the regional ICANN meeting in
> > >Berlin, Germany, along with Working Groups A & C. Jonathan Cohen and
> Amadeu
> > >Abril were appointed co-chairs of Working Group A. Because of some of the
> > >criticisms surrounding the procedures in Working Group A, it was decided
> > >that the one co-chair would be appointed by the Names Council and the
> other
> > >would be elected by the groups participants. I was elected as the
> alternate
> > >chair by default when no one else expressed an interest. This election
> took
> > >place prior to the ICANN Regional meeting in Santiago, Chile.
> > >
> > >At this time, Working Group B was still in the formative stage, with no
> more
> > >than twenty initial members. After the Santiago meeting, Jonathan
> announced
> > >his intention to run for a position on the ICANN Board. Following this
> > >announcement, Jonathan undertook a less visible role within the Working
> > >Group B process, although he continued to offer his insight and expertise
> > >leading up to the election.
> > >
> > >After his election to the ICANN Board for a period of one year, I
> continued
> > >to serve as the sole chair of Working Group B until the appointment of
> Kathy
> > >and Philip by the Names Counsel several months later.
> > >
> > >Having made this clarification, I would like to offer my insights on some
> of
> > >the candidates running for election to the ICANN Board from the DNSO.
> > >
> > >The reason that I nominated Jonathan for reelection was because of his
> > >diverse skill set and his record to date. Two of the bigger challenges
> > >facing the ICANN Board in the near future are overseeing the proof of
> > >concept phase for new top-level domains, including any potential issues
> > >involving the intellectual property community, and increasing involvement
> > >among ccTLD registry operators in the ICANN process. I believe that
> Jonathan
> > >is uniquely qualified to handles these challenges based upon his
> expertise
> > >as an intellectual property attorney and in his involvement in the
> Canadian
> > >ccTLD registry.
> > >
> > >Although I believe that Jonathan is the most qualified candidate for
> > >election to the Board, there are several other candidates with impressive
> > >credentials that could make a contribution to the Board. For example,
> Jamie
> > >Love has recently became a very active participant within the ICANN
> process.
> > >The best word to describe Jamie is passionate. Although I may not always
> > >agree with Jamie's viewpoints, I respect his unwavering dedication to his
> > >beliefs. I personally hope that Jamie considers running for the recently
> > >vacant Names Counsel position within the Non-Commercial Constituency. I
> > >believe that involvement at the Names Counsel level will provide Jamie
> with
> > >some valuable hands on experience with regard to the ICANN process.
> > >
> > >Turning my attention to Ron Weikers, I have know Ron for several years
> and
> > >use to working with him at a law firm in Philadelphia. Although Ron has a
> > >solid technical and legal background, he is a relative newcomer to the
> ICANN
> > >process. I have reservations about his ability to get up to speed on the
> > >issues confronting the Board, specifically those involving the ccTLDs.
> > >
> > >With regard to the remaining candidates, Peter LeBlanc appears to be a
> > >popular candidate although I have never had the privilege of meeting him.
> I
> > >have a great deal of respect for several of the people that have endorsed
> > >his candidacy. Peter's strength appears to be in the ccTLD community,
> which
> > >as mentioned above is highly important at this point in time. In reading
> > >Peter's acceptance/position statement, however, it appears that his
> primary
> > >focus is advancing the interests of the ccTLD community. I believe that
> the
> > >strongest candidate should be the one that has his/her finger on the
> pulse
> > >of every constituency.
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > >--
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> > >Send mail to [email-masked] to unsubscribe
> > >("unsubscribe ga" in the body of the message).
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> > <http://www.dnso.org/archives.html>http://www.dnso.org/archives.html
> > >
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