[ cf. Berkman Center, http://cyber.law.harvard.edu/icann/la2000/archive/scribe-icann-111400-2.html ]

Scribe's Notes
DNSO Names Council - November 14, 2000 - Los Angeles, California

DNSO Names Council Meeting Los Angeles, California – November 14, 2000
I.   Welcome, Ken Stubbs
   A.   Roll call
       1.   Chicoine
       2.   Carey
       3.   Aus der Muhlen
       4.   Porteneuve
       5.   De Blanc
       6.   Robles
       7.   Hotta
       8.   Harris
       9.   Cochetti
       10.   Schneider
       11.   Kane
       12.   Roberts
       13.   Park
       14.   Vandromme
       15.   Swinehart
       16.   Katoh
       17.   Sheppard
       18.   Stubbs
   B.   Welcome to new members.
   C.   Note of conflicts of interest.
II.   Adoption of minutes
   A.   Hold off due to technical difficulties posting minutes
III.   Budget review – Cochetti
   A.   $72,000 has been collected. About $2,000 has been spent. About $50,000 remains to be collected for the year 2000.
   B.   Budget previously approved, but no specific expenditures made as yet. But a claim to be made by AFNIC for services of secretariat in the year 2000. Budget committee takes no position on this. No expenditures authorized as yet. Until this is straightened out, no other expenses to be authorized.
   C.   Budget committee has made it a priority to form a voluntary fund for contributions from whatever source. Purpose of fund to provide professional support services.
   D.   Chicoine: How to assure that charges are actually paid by DNSO Constituencies? Some have paid, others not. Also, it would be good to know soon what the charges will be for each constituency (reduce surprise for the members).
       1.   Cochetti: Working on it.
       2.   Vandromme: Had a long meeting yesterday with Non-Commercial Constituency. Exception requested due to character of NCC; asked to pay only 50% of charge.
       3.   De Blanc: ccTLD Constituency will pay charges promptly by wire transfer.
   E.   Stubbs: Need to clarify arrangements with GA. Does DNSO pay expenses for GA webcasts, staff support?
IV.   Report from GA Chair Gaetano
   A.   Discussion of sponsorship possibilities. No action taken re webcasts expect to thank NSI/Versign for sponsoring webcast.
   B.   Discussed election of new GA chair. Motion for direct election by GA of its own chair. Would require change to ICANN bylaws. Overwhelming majority in favor of this change.
   C.   Discussion of nomination of DNSO Director. Difficult to know whether a particular person a member of the DNSO in the broad sense (member of announce or GA list, or any WG or constituency list), so hard to know whether nominations were valid.
   D.   Discussed internationalization of DNS. See notes.
   E.   Discussed Individual Constituency. Some concern that this question was combined with other DNSO structure review. Some favor a group dedicated to this question. Straw poll requests that most GA members are interested in pursuing this.
   F.   Discussed new TLDs. Resolutions and proposals somewhat confused. Four resolutions considered, two passed: “Board should adopt new TLDs at this meeting.” “Board should not decide on new TLDs until applicants have had time to respond to staff reports.” Perhaps not so contradictory – if such response occurs before end of meeting.
   G.   Discussed composition of ICANN Board, urging the Board to seat the newly-elected Directors.
   H.   Stubbs: Concerned to hear that it’s hard to know who officially is or isn’t a member of the DNSO. Staff should work on that.
       1.   Gaetano: What about people who say they’re members of some organization that is itself a member of a constituency? This isn’t so simple as we might have expected. There are different ways of defining who participates in a constituency. A uniform definition might be helpful.
   I.   Chicoine: How to read those resolutions so they’re not contradictory?
       1.   Gaetano: I’m not comfortable with these resolutions. “Don’t shoot the messenger.” But there’s no contradiction in the sense that we both want decisions to be made soon and not to be rushed.
   J.   Roberts: Process for changing the bylaws to allow the GA to elect its own chair?
       1.   Stubbs: Not sure how to do this from a practical standpoint.
       2.   Gaetano: GA has come along with. With the voting registry in place, the GA is ready to select its own chair.
       3.   Kane: Just concerned about timetable. If the position is vacated in January, how will the necessary work be done before then?
       4.   Touton: It’s hard to imagine how the by-laws could be changed by December 15; have to leave time for public comments. Maybe an informal selection method? (i.e. the NC formally elects whomever the GA chooses?)
           • Gaetano: One year ago, the situation was difficult, and there were few candidates. Now, perhaps there will be more.
       5.   Stubbs: What if we ask Roberto and Harald to stay in place for another few months while we figure out a new process?
           • Sheppard: Concerned about extending the one-year term of office by four months. Too long an extension. Looks unseemly.
           • Roberts: NC would “take very seriously” the GA’s advice. Advice could include a specific vote tally.
V.   DNSO Review: Swinehart
   A.   Request from ICANN Board to make recommendations on DNSO’s structure, function, design. Task force created – one representative from each constituency, plus GA Chair. Representatives sought advice from their constituencies. Intellectual Property constituency responded, others not. But most people occupied with other priorities.
   B.   Will notify ICANN that work is ongoing. Seek further responses to assure representativeness.
   C.   Schneider: Submitted extensive comments a few days after the deadline (18 October), but reported that a day before the deadline. Were these comments received?
       1.   Swinehart: Will check.
   D.   Park: What was the content of the IP Constituency’s submission?
       1.   Chicoine: Aus der Muhlen was in charge of this process.
       2.   Park: Need a WG to discuss DNSO review.
           • Swinehart: Perhaps the GA could act as the WG? They’ve discussed this before, and everyone is a participant there.
           • Cochetti: Sounds good to me. Little difference between creating a WG and relying on the GA.
   E.   Roberts: Thanks to Swinehart for working on this. Understand that it was a tough job, that most people’s focus was elsewhere. Now, we need to set a clear timetable for going forward.
   F.   Chicoine: Need procedures so that if a NC member questions a decision made, we have appropriate documentation.
   G.   Park: Procedure was not clear to NC members. Need to be more clear in the future. Sometimes, the NC process perhaps gives too much power to the Chair; might need two chairs for the DNSO Review process.
   H.   Chicoine: Motion to make YJ the chair of a WG to address certain DNSO specific issues that were raised by YJ. Approved by show of hands.
   I.   Stubbs: Need timetable for finishing the Review.
   J.   Swinehart: Need to extend Review Committee’s work to the first week of the New Year given the challenges of winter holidays.
   K.   Stubbs: Concerned that certain constituencies haven’t participated at all.
       1.   Swinehart: It’s been like pulling teeth to try to move this process forward. Disappointed by the number of people participating in this process.
       2.   Park: In addition to the Review Committee, the NC runs an Intake Committee. But IC’s recommendations haven’t been working so far. Documents haven’t been precirculated for this meeting, so we’re not following the stated rules re the Intake Committee, even though we all support those rules. This is a serious problem.
VI.   Outline of Business Plan – Roberts, Sheppard
   A.   Propose the use of a management tool to assist NC in achieving core objectives.
   B.   Business plan to set out key objectives and priorities for NC for next 24 months
       1.   Mission statement
       2.   Objectives with timeframes
       3.   Strategies
       4.   Criteria for measuring success – review & evaluation process
   C.   Mission of the Names Council (per by-laws VI-B.1, VI-B.2.b): “To manage a process of consensus building within the DNSO and to advise the Board with respect to policy issues relating to the domain name system.”
   D.   Objectives
       1.   NC review (by Jan 2001)
       2.   UDRP
       3.   TLDs
       4.   ICANN competition model
       5.   NC secretariat
   E.   Cochetti: Certainly we wouldn’t ignore important developments because they weren’t predicted / discussed in the long-term plan. These are a set of tasks that should be on our radar screen, so to that extent this is a constructive exercise. May not need an entire task force; may just be a function of the chair, periodically updated as needed.
   F.   Clarification of “The ICANN Competition Model.”
   G.   Carey: Concerned that submitting proposals to the Board will take a lot of work.
       1.   Stubbs: Goes to the question of the NC’s role. Facilitators? (Something else?) Need more direction from the Board.
   H.   Park: Maybe the NC needs a pool of legally-trained advisors. Need professional recommendations to supplement the existing help from ICANN staff.
   I.   Schneider: Question of whether the NC is just facilitating instructions received from the Board? Or the other way around? If we’re more than just facilitators, but if we’re what I think the Articles and By-laws say, then we need advisors and professional staff.
   J.   Cochetti: Can use this Business Plan to let the community know what issues we’re working on. May not need a task force or another committee to deal with this.
   K.   Stubbs: Encourage NC members, especially new members, to get involved.
   L.   Proposals:
       1.   “NC agrees to the concept of establishing a Business Plan, and to establish a Business Plan Task Force (BPTF) to manage the development of a plan for the period 2001-2002, and prepare a draft for approval by the NC at its meeting in March 2001.”
           • All in favor, except Schneider and Cochetti abstain.
       2.   “The Names Council agrees to the Mission Statement set out above.”
       3.   “The Names Council a) instructs the BPTF to prepare and publish details of a consulting process which sets out a time frame that provides each constituency with the opportunity to contribute to, and comment on, the proposed business plan, and b) encourages each of the constituencies to comment on, and identify proposed objectives, strategies, detailed actions, and measures of successes to be incorporated into the draft business plan.”
           • 2 and 3 together: All present NC members voted affirmatively.
VII.   The Protection of Intellectual Property Rights in the Rollout of New TLDs: Cochetti
   A.   Advice on protection of IP in new TLDs. YJ suggested that it might be valuable to hear from experts with different viewpoints. We’ll have two presentations from non-council members on the subject. First is from Francis Gurry; second, Michael Froomkin.
   B.   Gurry: Member-states of WIPO asked WIPO to examine certain issues other than trademark abuse in the context of DNS. Note that this process was outside of the ICANN process; we were only to share the results of our process with ICANN and the Internet community. Study to consider “bad faith, abusive, misleading, […] registrations.” Results of study are relevant in the context of considering new TLDs. Significant international consensus; national laws relatively convergent. WIPO has no a priori positions on application of these laws to the Internet. Issuing two rounds of Requests for Comments, final report to be ready in February 2001.
       1.   From a purely intellectual property perspective, introduction of new TLDs in a “controlled manner” is acceptable, we believe, provided that UDRP continues to be used.
       2.   What’s a controlled manner?
           • Gurry: “Proof of concept” is tricky in that the newly-introduced TLDs are “for good” (permanent). We expect a massive number of registrations. A controlled manner here must take into account that these are irrevocable decisions.
       3.   De Blanc: Suggesting that generic pharmaceutical names should not be registered?
           • Gurry: We’re far from concluding that this matter ought to be dealt with one way or the other.
       4.   Chicoine: WHOIS?
           • Gurry: There are national and regional laws about privacy protection. Need informed consent before disclosure of contact details. But WHOIS data must be available.
       5.   Katoh: What is impact of these additions to the scope of ICANN’s activities?
           • Gurry: We believe that this second process (consideration of new TLDs) is distinct from the review of the functionality of the UDRP.
   C.   Froomkin: Grateful for opportunity to be here, and for recognition that WIPO plays a dual role (technical knowledge, and [in my opinion] partisan).
       1.   Can imagine a rule restricting assignment of TLDs only to trademark-holders. Or that trademark holders can’t get TLDs at all. Or something in between – sunrise policies, affirmative action, post-registration procedures, etc.
       2.   Principles
           • Must not use ICANN / WIPO processes to “do an end run around” national laws. Not intended to accord new rights to IP, but only to protect rules that already exist elsewhere. So upper bound for IP protection must be the rules expressed elsewhere – fair use, uses consistent with Universal Declaration of Human Rights, etc.
           • Existing UDRP is absolute upper bound for IP protections in new TLDs. Case for less protection is credible. Case for more protection is weak.
           • Well-defined scope of some new TLDs may call for limited protections for intellectual property.
           • The process we’re using finds consensus among trademark lawyers. If we understand the WIPO report to speak for that point of view, then it’s a document well worth reading.
       3.   Q&A:
           • Note that ICANN accepted only parts of prior WIPO report. Did not accept famous mark provisions, for example. Even so, though, WIPO reports speak for only one community, not an overall consensus.
       4.   Sheppard: Said earlier that you thought TLD applicants were being harder on IP protection than they needed to be. Perhaps they were instead seeking to establish trust by differentiating themselves from .COM?
           • “They told me that they thought if they didn’t do it [include strong protections for IP], they were ‘dead’. It’s hearsay. Take it for what you think it’s worth.”
       5.   Anonymity?
           • Yes, appropriate and should be possible at least in certain TLDs.
   D.   Intellectual Property Constituency’s Statement of Principles
       1.   Chicoine: Some further work needed re WHOIS.
       2.   Cochetti: New TLD registries will choose policies shortly. If we want to impact their policies beginning next year (when new gTLDs become operational), we need to move faster than is anticipated by the Business Plan.
       3.   Cochetti: Seems to be community consensus that the failure of a registrant to comply with the terms of a restricted TLD (if ICANN authorizes the creation of one or more restricted TLDs) should be actionable under the UDRP or something similar.
   E.   Sheppard: Defer further consideration to a teleconference?
       1.   Cochetti: If we don’t act now, the ICANN Board will act without our input.
       2.   Katoh: Is Dec 19 (next teleconference) soon enough?
       3.   Park: Form a working group.
           • Cochetti: If we take that course, it is likely that ICANN Board will act without further input from the Council. A WG, committee, or task force couldn’t reach a conclusion in time to influence the process.
       4.   Sheppard: Sense is that there’s just not time to make a recommendation now.
       5.   Schneider: Shouldn’t designate these simple questions to working groups.
       6.   Cochetti: Suggest that Council recommend to ICANN Board that a procedure comparable to the UDRP be incorporated into any new TLDs that are restricted, to assure that registrants comply with whatever restrictions apply to the TLD. But should only do this if others agree. Straw poll?
           • Less than two thirds in support.
   A.   WHOIS to identify registrants of domain names and/or IP addresses. Use over the years has migrated from identifying source of technical faults to consumer protection (identifying owner of a domain name before a transaction takes place), certification systems, jurisdictional questions (to learn where a registrant is based).
   B.   In Yokohama, ICANN Board setup an advisory group to standardize Whois access across competing registrars. Intention is to facilitate level playing field for benefit of consumers. Interim report now available from advisory group coordinator (Rebecca Nesson).
   C.   Nesson, Advisory Group Coordinator
       1.   Group put together by Touton for assistance in implementing the relevant portion of the Registrar Accreditation Agreement. Includes representatives of registrars (NSI Registrar, CORE, Melbourne IT), NSI Registry, and certain IP interests (RIAA, MPAA), and Verizon.
       2.   Group was convened in July, but worked less quickly than was hoped. Unfortunately, still in final stages of drafting report.
       3.   Producing a web site explaining purposes, publishing report when available.
       4.   Q&A:
           • Schneider: Concerned that there was not sufficient recognition given to European data protection culture.
           • Nesson: Have looked specifically at accredited registrars to comply with specific requirements already included in the RAA. No changes being made to agreements, nor additions to it. Working to standardize data output format, distributed queries, etc. Not considering any policy issues. When we reach what seem to be policy issues, we recommend that ICANN staff work on the question. Committee members have been aware of privacy issues, but it hasn’t been a serious issue in these implementation details.
           • Touton: Committee is convened to respond to RAA section II.F.1. We’re dealing with questions like consistency of data format. It is within the NC’s scope for managing the building of consensus to discuss the changing of this policy. But this advisory group will not change the policy, rather only assure compliance with the existing policy.
           • Kane: Perhaps it would be better to handle this a different way – via constituencies, to keep everyone informed.
           • Cochetti: If this committee is indeed well below the level of “policy” (just “administrative implementation”) then it’s appropriate to interact directly with the ICANN staff. But it would still be advisable to let the NC review the output to verify that these are only administrative and implementation issues.
           • Touton: I intentionally chose one registrar from North America, one from Europe, and one from the Asia-Pacific region, those being the only regions in which we then had registrars.
           • Park: ICANN emphasizes open and transparent processes. But this hasn’t been open or transparent.
           • Kane: Primary aim of report?
           • Nesson: Will not change data elements (which are already specified via RAA II.F.1). Are changing data format and search systems so that users can query all registrars from a single interface. This committee is meant to help the staff coordinate the registrars in doing so.
           • Kane: A number of constituencies have said they want to be involved in this process. Need to publish your paper on a web site, and invite constituencies to send their papers too. Everyone can discuss the results.
           • Chicoine: But maybe that’s more overhead than is necessary since this is mostly administrative. Do you have a charter to limit the committee to administrative questions?
           • Swinehart: When the report is published, it should be sent to the NC list? We’ll review it and comment on it then?
           • Touton: Receiving comments from the public, and managing consensus, is the NC’s role, not the Staff’s role. We’ll leave that to you. NOTE TO TLD APPLICANTS: If you intend to give computer-assisted presentations tomorrow during the Public Forum, please see the signs at the back of the room for instructions re the format and timetable required for transmission to technical staff.


For additional technical information, please contact:  

Ben Edelman and Rebecca Nesson
Berkman Center for Internet & Society at Harvard Law School 

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