Members: Alan Greenberg, Alice Munyua, Athina Fragkouli, Becky Burr, Bruce Tonkin, Cheryl Langdon-Orr, Eberhard Lisse, Finn Petersen, Fiona Asonga, Izumi Okutani, James Bladel, Jordan Carter, Jorge Villa, Julie Hammer, Leon Sanchez, Lyman Chapin, Maarten Simon, Mathieu Weill, Olga Cavalli, Pär Brumark, Robin Gross, Samantha Eisner, Sébastien Bachollet, Steve DelBianco, Thomas Rickert, Tijani Ben Jemaa, Tracy Hackshaw (27)
Participants: Adebunmi Akinbo, Andrew Harris, Anne Aikman-Scalese, Antonia Chu, Ashley Heineman, Avri Doria, Bruno Lanvin, Chris Disspain, Damien Coudeville, David McAuley, Desiree Miloshevic, Edward Morris, Emmanuel Adjovi, Erika Mann, George Sadowsky, Greg Shatan, James Gannon, Jonathan Zuck, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Konstantinos Komaitis, Laurent Ferrali, Lise Fuhr, Maciej Tomaszewski, Malcolm Hutty, Mark Carvell, Markus Kummer, Maura Gambassi, Mike Chartier, Paul Rosenzweig, Pedro da Silva, Phil Buckingham, Rafael Perez Galindo, Rinalia Adul Rahim, Sabine Meyer, Seun Ojedeji, Sivasubramanian Muthusamy, Thomas De Haan, Thomas Schneider, Wisdom Donkor, Wolfgang Kleinwaechter (42)
Advisors: Jan Scholte, Lee Bygrave, Willie Currie
Legal Counsel: Edward McNicholas, Ingrid Mittermaier, Holly Gregory, Michael Clark, Rosemary Fei, Sharon Flanagan
Staff: Adam Peake, Bernard Turcotte, Berry Cobb, Brenda Brewer, Grace Abuhamad, Hillary Jett, Julia Charvolen, Mike Brennan, Theresa Swinehart
Apologies: Giovanni Seppia, Julia Wolman, Martin Boyle, Matthew Shears, Nell Minow, Roelof Meijer, Valerie D'Costa
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
- The Adobe Connect recording is available here: https://icann.adobeconnect.com/p2qy9v7waix/
- The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-3-18jul15-en.mp3
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
Board recall: entire broad individual directors
- Hold over model, Directors stay seated until the replacement is found
- Alternates, selected when the original Director appointed;
- Ex Officio Model, people involved in certain positions would become these positions
- Interim at the time of recall, only long enough until a "real" board in place my usual processes
- Each has he same fiduciary duties as the typical board.
- Strict bylaws provisions around the time-frame, act as fiduciaries, but a community expectation of caretaker mode
- Shadow board, sitting in the back of the actual board a bad idea.
- Ex Officio: already a burden on the chairs and community leadership
- Everyone who casts the vote, should bring names to the table as replacements, i.e. preference to option 4
- It is possible to go for a smaller board, ignoring concerns of representation.
- A board as small as 1 is possible
- Diversity requirements in the bylaws could be put on hold in the interim
- Staggered terms, the replacement would step into the term associated with the seat they take.
- Backstop under California law, if only one Director, must inform the California Attorney General that they are to resign, who may appoint an interim board.
- Are there any restrictions on who can be appointed?
- Suggestion of a preference with option 4, with implementation details to come.
- Note. NomCom is developing practices for a casual vacancy, which are becoming more regular
- A consultation process must be in place before a Board recall: petition and consultation
- Preference for option 4.
- Not requiring the NomCom to immediately seat interim Directors
- NomCom will not be required to bring names to the table
- Time span in which the new Board should be seated.
- WS2 a set of standards for Board members
- Discussion at the next CCWG mtg July 21st
Mission, commitments and core values
- Comments on the balancing test. In the proposal too complicated and too U.S. law centric
- Consistent with human rights standards
- Suggested commitment to adhering to human rights. Intent: what ICANN does not negatively impact on human rights
- Is there a standard or framework on human rights being suggested? A group to examine this, and its policy implications and practical affects, but now not the time to implement
- Further discussions about the human rights aspects.
- Core value 5. From the AoC and movement of the commitments into the bylaws. The nature of the language in the AoC suggested this different place in the bylaws.
· Words left out from them AoC text, the parenthesis 'issues including...' may be useful to discuss (taken to email).
Brenda Brewer: (7/18/2015 06:04) Welcome to CCWG Accountability Meeting #42, Session 3 on 18 July! Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards
Brenda Brewer: (06:48) Meeting will be starting in approximately 15 minutes. Please stand by.
Leon Sanchez (Co-chair ALAC): (06:55) Welcome back everyone
Leon Sanchez (Co-chair ALAC): (06:56) we will be reconvening shortlly
Jordan Carter (.nz, ccTLD member): (07:00) One Minute Call
James Gannon [GNSO-NCSG]: (07:10) My vote is to return to smoking at negotiation tables
Greg Shatan: (07:11) Smoking what, James?
James Gannon [GNSO-NCSG]: (07:12) Link: https://mm.icann.org/pipermail/accountability-cross-community/2015-July/004221.html
jorge cancio (GAC): (07:14) Total Recall...
Jordan Carter (.nz, ccTLD member): (07:14) Heh
Jordan Carter (.nz, ccTLD member): (07:14) the threshold that had been proposed for the petitioning was as follows
Jordan Carter (.nz, ccTLD member): (07:14) The community would initiate use of this power on the petition of two thirds of the sum of SOs and ACs in ICANN, with at least one SO and one AC petitioning.
David McAuley: (07:19) Thank you Holly for options presentation
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:20) yes very helpful
Keith Drazek: (07:20) I think #4 is the only truly viable model. Numbers #2 and #3 are problematic because of potential Conflicts of Interest that might exist or develop.
Bruce Tonkin: (07:20) Agree @Thomas - I think a sahdow board is a bad idea and also an overhead that is unnecesdarry given we believe this to be a rare eent.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:21) agree /kieth
Seun Ojedeji: (07:21) By we you mean Co-Chairs right?
Paul Rosenzweig (Heritage): (07:21) Completely agree -- #4 is the most sensible option ...
Mathieu Weill, ccNSO, co-chair: (07:21) Yes Seun
Robin Gross [GNSO - NCSG]: (07:22) I like #4 best also (so far).
Greg Shatan: (07:23) I am also in favor of #4.
Seun Ojedeji: (07:23) Okay thanks and yes i agree with option 4 excluding taking interim from nomcom
Malcolm Hutty: (07:23) +1 Chris, interim Board not having NomCom appointees seems pragmatic.
Bruce Tonkin: (07:23) @Chris - I agree that having a smaller interim board appoint by the SOs and ALAC. At least the Sos and ALAC have a standing Council of some form that coujld make decisions about an interim Board member.
Bruce Tonkin: (07:24) @Rosemary is exactly right - the threat to spill the Board would normally be sufficient - so we shouldn't make the caretaker Board too complicated.
Keith Drazek: (07:25) WE CAN BE THE FIRST!!! ;-)
Chris Disspain: (07:25) As is often the way with ICANN, Keith
Keith Drazek: (07:25) lol
Seun Ojedeji: (07:26) Dropped my hand as the view is consistent. Meanwhile i hope we are still coming back to the power of SO/AC as it relates to board removal
James Gannon [GNSO-NCSG]: (07:26) The dictator model
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:26) :-) :-) :-)
Rinalia Abdul Rahim: (07:27) I would be concerned about scope of action for caretaker board. It needs to be narrow.
Bruce Tonkin: (07:27) Of course the technical apporach here would be to test the disaster recovery plan. So we culd runa simulation and see how long it would take for the community to appoint an interim board :-)
James Bladel: (07:27) @James: but it's just temporary, until the emergency has passed. Surely there are no examples from History where that has been a rpoblem.
Malcolm Hutty: (07:27) it seems viable to say that a valid resolution to spill the Board by an SO/AC must contain the name of a person proposed to sit as an interim director
Robin Gross [GNSO - NCSG]: (07:27) is there any possibility to confine interim powers to some extent? I understand the need to act in the case of a crisis, but there is also the concern about big decisions being taken by board members who are only there for a couple months?
Mathieu Weill, ccNSO, co-chair: (07:28) @Robin: I've heard lawyers say it was quite difficult
Rinalia Abdul Rahim: (07:28) Why, Mathieu?
Malcolm Hutty: (07:29) @Robin, I would imagine that in practice any intermix nominee would be very aware of their interim status and reluctant to take any important decisions that could be deferred
Mathieu Weill, ccNSO, co-chair: (07:29) I am not qualified enought to say Rinalia ;-)
Tracy Hackshaw (Trinidad & Tobago): (07:29) Will a "Board of One" be equivalent to a "Corporation Sole"?
Rinalia Abdul Rahim: (07:30) Let me just say that to execute board duties requires some knowledge - there is a steep learning curve. Putting someone in a crisis and expecting full exercise of powers without the benefit of time to lean the ropes will affect the quality of decisions.
Mark Carvell GAC - UK Govt: (07:30) Mindful it will not be easy for a wholly new team to take over at short notice, and desirabilty of maintaining safety of decisions, is a combination of 1 handing over to 4 preferable to ensure continuity of essential Board functions without risk of basic mishaps e.g. when quick perhaps complex decisions are in train and these need to be taken shortly after a recall.
Rinalia Abdul Rahim: (07:30) And when I say learning it is specific to the ICANN context and issues.
Rinalia Abdul Rahim: (07:31) In this case, Julie Hammer's suggestion to consider past directors may be a viable option.
Greg Shatan: (07:31) Coup de Communite?
Tracy Hackshaw (Trinidad & Tobago): (07:31) Will the Board of 1 be equivalent to an Executive Chairman?
Greg Shatan: (07:32) If that's true, maybe ICANN is too reliant on its board.
Robin Gross [GNSO - NCSG]: (07:32) interesting suggestion - past board members
Mathieu Weill, ccNSO, co-chair: (07:32) Past board members could be compatible with option 4
Robin Gross [GNSO - NCSG]: (07:33) yep
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:33) indeed
Greg Shatan: (07:33) I would not have any strict requirements now, but trust to those organizing the recall to make prudent choices.
Bruce Tonkin: (07:33) @Robin - I assume the choice of appointing a past Board memnber would lie with the body making the interim appointment.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:34) I would think so @bruce
Robin Gross [GNSO - NCSG]: (07:35) Right, Bruce, not a requrement, but we could do it if we had a good candidate (past board member)
Bruce Tonkin: (07:35) There is plenty to choose from :-) The list is here: https://www.icann.org/resources/pages/board-of-directors-2014-03-19-en
Mathieu Weill, ccNSO, co-chair: (07:35) And the list should keep growing in the future ;-)
Lyman Chapin: (07:35) I vote for distant past Board members :-)
Rinalia Abdul Rahim: (07:36) That would be fine, Lyman.
Mathieu Weill, ccNSO, co-chair: (07:36) Are you sure ? I think that would be a VERY tough job to take on
Christopher Wilkinson 2: (07:37) Well, if the hypothetical crisis has reached the pass when the whole Board should be 'spilled', then other powers would have intervened long before. See my comments to CWG.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:38) Lyman who could you possibly mean :-)
Seun Ojedeji: (07:38) @Lyman, i like the idea of using past board members as interim as well...i also understand the "clause" of distance
James Bladel: (07:38) The Internet will continue to operate fine in the absence of an ICANN Board.
James Gannon [GNSO-NCSG]: (07:38) Can we just appoint SSAC as the interim board then =)
Steve DelBianco [GNSO - CSG]: (07:39) The board is rarely involved in maintaining the operations of ICANN on a day-to-day basis. IANA staff and compliance staff will still be doing their jobs
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:39) yup
Lyman Chapin: (07:39) @James Good idea - in a crisis security and stability should be paramount
Seun Ojedeji: (07:40) Meanwhile i suggest we should stop seeing this mechanisms as something that may not happen. We should rather assume it will happen and put enough mechanisms that ensures it will not happen. In the interest of ICANN and the community
Greg Shatan: (07:41) If we have board members who will head for the hills at the first sign of community disappointment coming from any sector, perhaps the recall is well placed.
Greg Shatan: (07:41) I tend to think they will not abdicate their duties so quickly.
Jordan Carter (.nz, ccTLD member): (07:41) I would be quite surprised if the response of the Board to a petition re recall led to many/most resigning
Greg Shatan: (07:41) I agree, Jordan. But it's really, really scary!!
Jordan Carter (.nz, ccTLD member): (07:41) in my experience directors only get towards such a situation when there is some weird group think and combat with the constituency going on
Jordan Carter (.nz, ccTLD member): (07:42) those aren't circumstances where people generally want to wander away
Seun Ojedeji: (07:42) @Jordan i think that is possible as it also has to do with integrity. "If you don't trust me to lead then why put me there in the first place"
Greg Shatan: (07:42) I'm sure Holly would love to work with the ICANN Board!
Seun Ojedeji: (07:43) Many leaders doing wrong prefer to resign before their removal. FIFA is the latest reminder
David McAuley: (07:43) Good point about reputation and the inherent discipline it imparts
Jordan Carter (.nz, ccTLD member): (07:43) Seun: aftert years of recalcitrance
Jordan Carter (.nz, ccTLD member): (07:44) the FIFA example proves my contention rather than Sam's, in my opinion
James Gannon [GNSO-NCSG]: (07:44) +1 Jordan
Greg Shatan: (07:44) FIFA is more a case of digging in than running away.
Mathieu Weill, ccNSO, co-chair: (07:45) What a nice exampleg Greg ;-)
Mathieu Weill, ccNSO, co-chair: (07:45) (and Jordan)
Greg Shatan: (07:45) You can credit Seun for bringing up FIFA....
Jordan Carter (.nz, ccTLD member): (07:47) I was only responding. ICANN is not FIFA.
Seun Ojedeji: (07:47) @Greg removal is result of digging in....i don't think digging in will be prevented irrespective of resign/not. Its just that it bring more shame if while digging it gets to you physically
Jordan Carter (.nz, ccTLD member): (07:48) I would sum up the caretaker idea as "Do nothing that does not need to be done."
Seun Ojedeji: (07:51) So what is "affected parties"?
David McAuley: (07:51) +1 option 4
Seun Ojedeji: (07:51) I presume its all SOs/ALAC
Avri Doria: (07:52) this is all being handled by the Member?
Greg Shatan: (07:52) I would give NomCom the option, but notthe obligation.
Mathieu Weill, ccNSO, co-chair: (07:53) @Avri : what do you mean handled ?
Lyman Chapin: (07:53) +1 Avri
Christopher Wilkinson 2: (07:53) Nomcom already can appoint Board memebers to replace a casual vacancy. CW
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (07:54) as we often have had to in recent times
Asha Hemrajani: (07:56) @clo given that nomcom has sometimes a "buffer" of suitable candidates, shouldn't the NomCom have the option of suggesting some suitable interim directors?
Avri Doria: (07:56) but perhaps if there is less than a year on a term, you can leave the interim in.
Seun Ojedeji: (07:57) I have not heard about the powers of SO/AC as it concern their board member recall
James Gannon [GNSO-NCSG]: (07:57) We are not on the topic of indival recall Seun
Seun Ojedeji: (07:57) thanks James
Avri Doria: (07:59) i tihnk we see capture everywhere.
Asha Hemrajani: (07:59) clap clap
Rinalia Abdul Rahim: (08:00) Apparently we are capture-centric
Avri Doria: (08:00) i think capture is a whol elot harder than everyone thinks.
Paul Rosenzweig (Heritage): (08:00) Can we get Becky's IRP PDF please as well
James Gannon [GNSO-NCSG]: (08:01) If you zoom to 165% it gets rid of the formatting
Greg Shatan: (08:01) Avri, our alien masters have told me to agree with you.
Brenda Brewer: (08:02) without formatting on the way
Avri Doria: (08:06) Greg, i aint' got no masters, alien or otherwise.
Asha Hemrajani: (08:07) @avri, I think Greg was referring to his masters :-)
Avri Doria: (08:07) he said ''our" ( :
Samantha Eisner: (08:07) Can we get a redline to the existing mission and core values?
Asha Hemrajani: (08:08) @avri I stand corrected
Rosemary Fei (Adler & Colvin): (08:09) Or maybe Greg is a "they".
James Gannon [GNSO-NCSG]: (08:09) That would explain...so much
Desiree Miloshevic: (08:09) and where is text on Human rights?
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (08:11) @avri do you have your recent words from the email available to put in chat ?
Avri Doria: (08:14) suggested wording: Work to ensure that ICANN respects human right obligations within itsmission, accounts for impact on human rights in policy creation, andadheres to the "Respect, Protect and Remedy" framework
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (08:16) thx
Avri Doria: (08:17) this was from the comments.
Avri Doria: (08:18) i think refereing to human raight as rainbows and puppied is rather inaappropriate.
David McAuley: (08:18) Greg raises a fair point essentially about unintended consequences in policy – so maybe a WP should work on language rather than approve any now
James Gannon [GNSO-NCSG]: (08:19) +1 Avri
Greg Shatan: (08:19) I just mean it is positively viewed across the board, on a conceptual level.
Malcolm Hutty: (08:20) (I am in the queue for this topic, but not the human rights subtopic)
Greg Shatan: (08:20) If there are hypersensitivities around even word choices in discussing this, I suggest that underlines how this is not a simple or straightforward subject to discuss.
David McAuley: (08:21) I like Jonathan's point about philosophical level vs real applicability level
Samantha Eisner: (08:21) +1 to Jonathan
Chris Disspain: (08:22) another + 1 to JZ
Jonathan Zuck (IPC): (08:22) are trademarks in the core values?!
Greg Shatan: (08:22) I don't think we "committed to trademarks" in a few weeks.
Robin Gross [GNSO - NCSG]: (08:22) yes they are, Jonathan: rights protections
Greg Shatan: (08:23) Can you expand on that Robin?
David McAuley: (08:23) Robin makes a good point about TM but we also have loads of policy work involved at getting to that point, and so maybe a wp needs to wrestle with language and potential implications first here
Robin Gross [GNSO - NCSG]: (08:23) If I had scroll control, I could site the language in the document
Greg Shatan: (08:24) So it seems we already have it covered then.
Greg Shatan: (08:25) That is not what I was saying at all.
Samantha Eisner: (08:25) Robin, are you referring to teh new Core Value 5 on the expansion of the domain name space?
Robin Gross [GNSO - NCSG]: (08:25) 5. Ensuring that any expansion of the top-level domain name sapace will adequately address issues of competition..... and rights protections."
Samantha Eisner: (08:25) (Sorry that crossed)
Chris Disspain: (08:25) a ? - whose interpestation of the human rights clauses would we use? US? China? Our own?
Edward Morris: (08:25) I can add a few specific examples: due process (ICANN's numerous procedural violations; see TM50, .Africa), free expression (Alan Grogan's recent blog post/threat concerning ICANN possibly getting involved in content), privacy (directly related to WHOIS and proposals for directory services), fair use (related to TMP's).
Samantha Eisner: (08:26) I think we heard from Becky that that wording is likely to moved out of the Core Values and into the review section
Robin Gross [GNSO - NCSG]: (08:26) Greg, if we can agree "rights protections" includes "human rights" we can get some where
Mark Carvell GAC - UK Govt 2: (08:26) Agree with Robin. This is about ensuring applicability. Community working party and GAC is examining this. Move this to workstream 2 if there is unresolved anxiety?
Edward Morris: (08:26) That's how I read core value 5 Robin
David McAuley: (08:27) The process to get there is very imp[ortant
Izumi Okutani (ASO): (08:27) I would like to suggest to have it more specific in relevance, to be clear that it covers the points relevant to ICANN's activities
Greg Shatan: (08:27) Based on the suggestions in the chat, it seems that the agenda is the denigration of intellectual property rights, not the protection of human rights in the broad sense. In that case, I am greatly concerned, and I put my objection on the record. iI also find that quite sad.
James Gannon [GNSO-NCSG]: (08:28) Now Greg thats just wrong.
Greg Shatan: (08:28) I hope that is not really the case, but it shows the need to deal with this deliberately.
James Gannon [GNSO-NCSG]: (08:28) That was not the intention at all
Samantha Eisner: (08:28) I don't see that trend in the chat, greg.
Greg Shatan: (08:28) When i look at your list, and Robin's, that's my takeway.
Robin Gross [GNSO - NCSG]: (08:28) Greg, I don't understand. How is IP denegrated because we want protection for humna rights too?
Greg Shatan: (08:29) TM50, content, fair use, rights protections were the examples.
Samantha Eisner: (08:29) I see a request for those interested in seeking protections for human rights to be given the same voice in the Bylaws that we might be proposing to give to trademark rights holders
James Gannon [GNSO-NCSG]: (08:29) Amazingly I fully agree with Sam =)
Greg Shatan: (08:29) Robin, I should hope its not. But I don't see an example that goes past IP-related concerns.
Samantha Eisner: (08:29) I'm surprised you'd admit that publicly, James ;)
James Gannon [GNSO-NCSG]: (08:30) It was a big step, Im scared of my future in NCSG now =)
David McAuley: (08:30) I think Chris’s questions illustrate the need for care in approaching this very desirable concept
Robin Gross [GNSO - NCSG]: (08:30) Greg, fair use/ free speech is the other side of the trademark right issue - they are two sides of the same coin.
Greg Shatan: (08:30) James, you're safe, you told me I was completely wrong.
Robin Gross [GNSO - NCSG]: (08:31) and we make great effort to protect one side of that coin and not the other.
Greg Shatan: (08:31) I don't see fair use (which is a copyright-based concept existing in only a few jurisdictions) as a part of the same coin as trademark rights.
James Gannon [GNSO-NCSG]: (08:31) Greg is wrong until proven otherwise =)
Asha Hemrajani: (08:32) +1 Chris - this goes to diversity of thought as well - interpretations can vary greatly in different parts of the world
Robin Gross [GNSO - NCSG]: (08:32) Fair use is the breathing space that allows IPR to not conflict with free expression, according to US Supreme Court (and others)
Greg Shatan: (08:32) James, you don't have to try so hard to buff your NCSG credentials. :-)
Samantha Eisner: (08:32) I think that the ICANN Bylaws are the right place to try to resolve the longstanding, healthy debate on expression/protection of trademarks
Samantha Eisner: (08:32) I mean NOT the right place
Greg Shatan: (08:32) IPR is not a monolthic concept, referring to it as such is misleading.
Becky Burr: (08:32) I do not believe there is a human right of fair use, fwiw
James Gannon [GNSO-NCSG]: (08:33) I agree Sam they are exactly the right place =)
Greg Shatan: (08:33) A human right to use other people's property? Why stop at IPR?
Greg Shatan: (08:33) I'm staying in your home right now, Becky. But I'll be fair and make the bed when I leave.
Greg Shatan: (08:34) Sam, that was a big NOT to leave out.
Leon Sanchez (Co-chair ALAC): (08:34) @Sam you scared me for a moment :P
Samantha Eisner: (08:34) Yes, I scared myself!
Leon Sanchez (Co-chair ALAC): (08:34) LOL
Robin Gross [GNSO - NCSG]: (08:34) now greg, that "property" comes with limitations - the "property" right is NOT unlimited. It includes exceptions, including fair use, which is part of free expression.
Greg Shatan: (08:35) I look forward to a healthy discussion of all of this, somewhere other than AC chat.
Leon Sanchez (Co-chair ALAC): (08:35) I agree with Greg in that treating IPR as monolithic leads to more confussion than certainty. Copyright, trademarks and Droit D'auteur are quite different concepts and vary greatly in many forms
Greg Shatan: (08:36) Fair use is an exception (or more accurately, a defense) to copyright infringement.
Robin Gross [GNSO - NCSG]: (08:36) Greg, how about over some Irish whiskey in Dublin? :-)
Greg Shatan: (08:36) Conflating trademark and copyright concepts will get us nowhere.
Robin Gross [GNSO - NCSG]: (08:36) 1st amendment is also a defense to copyright. so calling it a "defense" doesn't get anywhere
Leon Sanchez (Co-chair ALAC): (08:36) @Robin may I join the whiskey party?
Robin Gross [GNSO - NCSG]: (08:37) I hope so, Leon.
Greg Shatan: (08:39) First Amendment is constitutional right balanced against copyright, which is also constitutionally protected, while fair use is statutorily defined within US copyright law as a defense.
Greg Shatan: (08:40) Can we talke about some human rights concerns that have nothing to do with intellectual property rights?
Chris Disspain: (08:41) It's all about IP Greg ;-)
Robin Gross [GNSO - NCSG]: (08:41) not according to the US Supreme Court, Greg. Fair use is left very flexible precisely to leave that breathing space for free speech.
Chris Disspain: (08:42) So the exchnage between you 2, Greg and Robin, illustrates my point about who is the arbiter...it seems that we are talokign about human rights as interpreted by the US
Chris Disspain: (08:42) and that is not acceptable for an organisation like ICANN
Leon Sanchez (Co-chair ALAC): (08:43) +1 Chris
James Gannon [GNSO-NCSG]: (08:43) And Matthiu we had a strong disussion on this in WP2 aswell
Greg Shatan: (08:45) Robin, while there are flexibiilities in fair use, it is also a fact-specific multifactorial balancing test, relating to specific types of uses, not a broad first amendment protection.
David McAuley: (08:45) Becky’s explanation about “regulation” vs contract compliance makes sense but would a “For avoidance of doubt” kind of clause be warranted for Steve’s concern?
David McAuley: (08:46) Thanks Becky
Greg Shatan: (08:46) Regulation: "A rule of order having the force of law, prescribed by a superior or competent authority, relating to the actions of those under the authority's control."
Asha Hemrajani: (08:47) +1 Chris