[ALAC] BGC decision of NCSG reconsideration request on TM+50

[Alan Greenberg]

http://www.icann.org/en/groups/board/governance/reconsideration/recommendation-ncsg-16may13-en.pdf

To cut to the result, the BCG rejected the request to overturn the 
inclusion of TM+50 into the TMCH.

Part of the decision was based on the fact that the original TMCH 
implementation itself, a result of the STI effort, was deemed (by the 
GNSO and all of us) to be part of the IMPLEMENTATION of 
Recommendation 3 of the GNSO new gTLD PDP:

>Strings must not infringe the existing legal rights of others that 
>are recognized or enforceable under generally accepted and 
>internationally recognized principles of law. Examples of these 
>legal rights that are internationally recognized include, but are 
>not limited to, rights defined in the Paris Convention for the 
>Protection of Industry Property (in particular trademark rights), 
>the Universal Declaration of Human Rights (UDHR) and the 
>International Covenant on Civil and Political Rights (ICCPR) (in 
>particular freedom of expression rights).

As such, can a change or refinement to this "implementation" be 
anything other than still just implementation? This is to some extent 
supported by the minority position that the ALAC took on the STI 
report, specifically that the ALAC supported some level of TM + 
service/product being in the TMCH. We also supported common law 
trademarks in addition to registered trademarks. *IF* the STI had 
bowed to our wisdom on these issues, both of these would have been in 
the TMCH design.

But the STI did not overall agree, and they did not end up in the design.

Similarly, if the TM+50 had been raised during the STI and had won 
(not very likely in my opinion, just as our pet issues above did not 
win), then this too would have been part of the default implementation.

Which of course now raises an interesting question.

Why would these "features" have simply been part of the 
"implementation" of the TMCH is we had won the arguments in late 
2009, but when we considered the TM+50 earlier this year, we 
forcefully felt that this was clearly policy?

The answer is not obvious, and yet it seems to be at the core of the 
visceral reaction that many of us have on the question of policy vs 
implementation.

I won't pretend that I have the answer to this. But I think that part 
of understanding it is to recognize that virtually all policy in the 
gTLD realm leads to implementation. Recent PDPs (and the new PDP 
process in the Bylaws) allow for an implementation team that helps 
ensure that the staff designed implementation follows both the word 
AND the intent of the policy. Indeed, one can consider that all of 
ICANN spent several years being the "implementation team" supporting 
the design of the New gTLD process and the AG.

I am starting to suspect that as policy takes on a concrete form 
during implementation, in peoples minds, the arrived at 
implementation and the original policy became meld together and 
become inseparable. It is a bit of a scary conclusion, because it 
means that, in our minds, the line between policy and implementation 
for any given issue, MOVES over time.

On a completely different issue, that of the new desired right of 
ICANN to change registry agreements without the concurrence of the 
registries (and outside of Consensus Policy) seems to validate my 
conclusion. One of the arguments that registries have made is that 
this option was already discussed several years ago and was discarded 
at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the 
elimination of that option several years ago enshrined NOT doing it 
in effective policy.

I admit that much of what I have written here is really 
stream-of-consciousness (and it is a bit past midnight now!), and I 
have not fully thought it through, but I felt it important to capture 
it and I look forward to comments.

Alan