Re: [ga] Clarification w/r/t Jonathan Cohen's Involvement inWorking Group B

[Dennis Schaefer <apsdps@mediaone.net>]

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:apsdps@mediaone.net]
> Sent: Wednesday, August 30, 2000 8:37 PM
> To: Kristy
> Cc: mpalage@infonetworks.com; ga@dnso.org
> 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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