[wg-b] ICANN & Working Group B - History and Structure

["Michael D. Palage" <mpalage@infonetworks.com>]

For the benefit of those individuals that have recently joined the group,
let me provide a little back ground into ICANN's structure and Working Group
B's history. I believe this tutorial will be of value to those trying to
understand what ICANN is and how it works. This will also help explain some
of the valid concerns voiced by individuals about the ICANN process.

ICANN is composed of three organizations: the Domain Name Supporting
Organization (DNSO), the Protocol Supporting Organization (PSO) and the
Address Supporting Organization (ASO). The PSO and ASO are concerned with
almost exclusively technical issues. The DNSO has the honor of having the
largest concentration of lawyers in the ICANN process. The DNSO has a rather
complex structure. Within the DNSO there are seven constituencies: (1) the
country code top-level domains (cutlass), i.e. .UK, .ca, etc.; (2) the
global top-level domain names (gTLDs) i.e. .com, .net and .org; (3) the ISP
and connectivity providers; (4) Commercial and business entities; (5) the
registrar constituency, i.e. those responsible for registering domains in
the global top-level domains; (6) the intellectual property and
anti-counterfeiting constituency; and (7) the non-commercial domain name
holders.

Sitting atop the DNSO is the Names Counsel. The Names Counsel is composed of
three elected representatives from each constituency. This counsel functions
as an interface to the ICANN board. At Berlin in addition to recognizing
each of the above referenced constituencies, the ICANN board tasked the
creation of three Working Groups to analyze the WIPO recommendations:
Working Group A (Uniform Dispute Policy); Working Group B (Famous
Trademarks); and Working Group C (new global top-level domains).  Within the
ICANN structure, Working Groups are part of the DNSO.

After the ICANN Board's resolutions in Berlin, Jonathan Cohen, an interim
Names Counsel representative from the Intellectual Property Constituency,
was named co-chair of Working Group A and Working Group B. Serving as
co-chair with Jonathan on Working Group A was Amadeu Abril a Names Counsel
representative from the Registrar Constituency. As with almost everything
associated with a newly formed organization, many procedures and rules are
made up as necessity dictated. Working Group A was tasked with a very
difficult challenge to make recommendations on the Uniform Dispute Policy
within a few weeks. In an effort to meet this aggressive timeline, the
Working Group A chairs were forced to limit the number of participants in
the group and on the issues on which they could vote.  These issues were
vigorously challenged both prior to and at the Santiago ICANN meeting.

In an effort to respond to challenges that the Names Counsel was stacking
the deck, it was agreed that each Working Group would elect a co-chair. That
is how I became co-chair of Working Group B prior to the Santiago meeting.
After the Santiago meeting Jonathan announced his intention to run for the
ICANN board. Because of his political activities he assumed a rather passive
role in the Working Group B process.

After Santiago, several participants raised the issue of whether safeguards
were needed in connection with famous mark or whether the newly adopted
uniform dispute policy in connection with existing remedies were adequate to
protect famous trademark holder's interests.

Learning from Working Group A's criticisms, I decided that it was best to
start with a clean slate and put to vote whether safeguards were needed. The
unedited results of this first formal vote were as follows:

Option A: 30 - Some type of mechanism, yet to be determined, is necessary in
connection with famous trademarks and the operation of the Domain Name
System.
Option B: 4 - ICANN should not implement any mechanism for the protection of
famous marks, because other mechanisms are adequate
Option C: 0 - ICANN should not implement any mechanism for the protection of
famous marks, because it exceeds the scope of ICANN's authority
Option D: 7 - Both Option B & C
Option E: 0 - I choose to abstain from the voting process at this time

Following the announcement of these results and resolving some challenges to
the voting process, I made a post on 10/26/99 announcing the following
timeline of activity:

Now to Nov. 17th - a three week position statement period. We have consensus
on mechanisms now we must put these mechanisms down on paper to look at the
strengths and weaknesses.

Nov. 17th to Dec 1st - a two week comment period.

Dec 2nd through the 5th - Formulation of questionnaire/survey to identify
points of consensus and point of contention.

Dec 6th through the 10th - Voting on these issues

Dec 11th through the 18th - Co-chairs prepare draft report for group
comments

Dec 19th through 26th - Comments on the draft report

Dec 27th through Dec 31st -  Submission of Interim report to the Names
Counsel

January 1st Y2K brings an end to civilization as we know it and Working
Group B's interim report become meaningless :) (Just kidding)

To further complicate matters, Jonathan Cohen was elected to the ICANN board
and had to resign as co-chair of Working Group B. It was my original
intention to hold an election among the Working Group B participants to
elect a new co-chair.  It then came to my attention that according to the
interim report of Working Group D (tasked with defining procedures for
Working Groups), it mandated that the initial co-chairs be a Names Counsel
member and that his/her title be supervisory co-chair. However, Working
Group D had not addressed the issue of how to handle a co-chair replacement
for either the elected or names counsel co-chair.  After talking with
different names counsel representatives they agreed that the term names
counsel liaison co-chair was a better term.

It was my original intention to hold a substantive meeting in Los Angeles to
discuss the objectives of the Working Group. Unfortunately, ICANN had no
money to pay for a speaker phone or a telephone bridge. Because of the lack
of remote participation, the group held a rather informal discussion, i.e.
we went around the room and introduced our self to each other, discussed how
to increase participation, discussed the proposed timeline, the need for a
new chair in light of Jonathan's resignation, etc.  Most of the discussion
was background info for the benefit of those new participants that were
joining the group.

I would now like to address some concerns raised by Dennis Schaefer in
connection with my role as co-chair of Working Group B. First, I would like
to apologize for Dennis taking off from work to participate in the failed
telephone conference. However, I do believe Dennis that you did participate
in the General Assembly Webcast where I explained to you remotely why the
telephone conference did not materialize. Moreover, I made the point to the
General Assembly that inadequate funding seriously limits the ability of a
Working Group to engage in meaningful outreach.

Second, I am sorry that you feel that my communication style favors
concealment. Within regard to the election/appointment of a new co-chair, it
was my intention to have the Working Group select the names counsel
representative most familiar with the dynamics of  the working group. Some
constituencies have not elected their Names Counsel replacements (Note: All
three individuals elected to the ICANN board were Names Counsel
representatives). My fear was a names counsel representative being appointed
that did not understand the history of the working group. Believe me, I
welcome a helping hand.  In order to silence any concerns about my potential
conflict as acting as sole co-chair of Working Group B, I will request the
Names Counsel to designate their mandatory co-chair in their next
teleconference since that is what the current resolutions require.

As I have repeated stated to this group it is not my intent to be viewed as
a benevolent dictator but as an individual focused on increasing outreach
and building consensus.

Welcome to the ICANN soap opera. Hopefully this information gives everyone a
 little background into the concerns shared by some of the participants on
this list. These concerns are valid because the integrity of the outcome of
this working group is directly dependent upon the integrity of the process.

However, the fact remains that we have a lot of work to do and I look
forward to reading everyone's position papers or comments.

Best regards,

Michael D. Palage