The Names Council, at its July 29 meeting, approved a new task force to recommend changes in the UDRP. As presented to the Names Council, the draft terms of reference proposed a pretty inclusive-looking committee, including representatives from each of twenty identified groups. As approved by the Names Council, though, the final terms of reference incorporated one itty-bitty change: They now directed that the Task Force may not include any of the five people named, in September 1999, to advise Louis Touton in his drafting of the original UDRP documents (implementing policies the ICANN Board had adopted a month earlier, in its Santiago meeting).
The five people now barred from the new task force: Michael Froomkin (law professor, member of the WIPO Panel of Experts on the UDRP and, well, ICANNWatch editor), Kathy Kleiman (representing the NCDNHC and the Domain Name Rights Coalition), Steven Metalitz (representing the International Intellectual Property Alliance), Rita Rodin (representing AOL and the registrars), and Scott Evans (representing the International Trademark Association).
For the story of how this happened, and the reasons why it is at best a Really Bad Idea, read on . . .
The story of how it happened is simple: At I hr 32 minutes into the Names Council meeting, Caroline Chicoine proposed an amendment to the draft terms of reference excluding all of the September 1999 committee members, explaining that the proposal came from the Intellectual Property Constituency. When Milton Mueller asked who the committee members had been, nobody seemed to know -- folks managed to come up with the names of Evans, Rodin and Kleiman, but blanked on the others. That was the only discussion surrounding the amendment; it was incorporated into the document with essentially no discussion of whether it was a good idea.
In fact, it's a very odd idea. The terms of reference refer to these five people as the "drafting committee constituted by ICANN to draft the UDRP," and I suppose the notion might be that, as the original drafters of the UDRP, these five would have insufficient perspective to evaluate it. There's only one problem: It's not so. The Board's Santiago resolutions directed Touton to start with a policy document and rules of procedure that had already been prepared by a registrars' group, and to amend it in three specific ways. Touton made it clear that he would entertain no suggestions as to the content of the UDRP that did not fall within that narrow brief. Further, the committee members were to "advise" him, but were not to haggle over language or to do any actual drafting. As Touton's later report emphasized, "the responsibility for selecting the language in the posted documents was that of ICANN staff and counsel, not the committee members." And none of the members came away with all they asked for.
So what have we got, then? Apparently, we're taking five people who were deemed to have the greatest level of subject-matter and legal drafting expertise, so that they were invited to kibitz when Touton drafted the UDRP implementation documents, and singling them out as the only people who cannot serve on a task force intended to recommend changes in how the UDRP operates. Seems backwards. Worse than backwards, in fact. After all, the trademark bar has a whole lot of competent lawyers who can represent the interests of trademark owners on this task force; the IPC doesn't particularly need Evans or Metalitz to serve. But the ranks of trademark experts within the public-interest community are much thinner. Froomkin, who was the sole public representative on the WIPO panel of experts on this topic, has been the leading voice within the public-interest community on UDRP policy issues; Kleiman's contribution too has been invaluable. Without them, the ability of the public-interest community to participate on the task force is significantly weakened.
And one can't help noticing that the source of this proposal was the Intellectual Property Constituency. I don't blame Chicoine for this; apparently she didn't draft the language, and was unaware of its full impact. But it seems fair to assume that whoever in the IPC did draft this language knew who it would exclude. And that person wasn't doing so to exclude Metalitz and Evans; one can only assume the point was to exclude Kleiman and Froomkin.
I confess to my own interest here: I've known Michael Froomkin for a long time, and -- like him -- I'm an editor of ICANNWatch. But that doesn't stop me from pointing out a Really Bad Idea when I see one.
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