From: Andrew McLaughlin
Sent: Monday, May 22, 2000 4:35 PM
To: Eric Brunner; Robert Gough
Cc: Hans Kraaijenbrink; Ken Fockler; Amadeu Abril i Abril
Subject: Reconsideration Request 99-1
Dear Eric and Robert:
The Reconsideration Committee has (finally!) made its recommendation in response to your reconsideration request. The recommendation will be considered by the Board at its next teleconference meeting.
Let me know if you have any questions.
[RC 99-1] On June 25, 1999, the Reconsideration Committee received a request for reconsideration from Eric Brunner and Robert Gough relating to ICANN's recognition of the Intellectual Property Constituency (IPC) of the Domain Name Supporting Organization. The request complains of ICANN's decision not to recognize a distinct DNSO constituency for "indigenous intellectual property" interests. The request raises questions about the Intellectual Property Constituency (IPC)'s membership criteria and their application; the openness and transparency of its procedures; the process by which the IPC was recognized; and whether any bylaws "or other guidelines" were violated by the parties involved. The request asks for three specific remedies:
"(1) modification of the provisional recognition to extend to our group, in effect, partitioning a single constituency in recognition that no compromise between corporate and indigenous groups was achieved, and that the exclusion of either is unnecessary, and actionable.
"(2) modification of subsequent language concerning WIPO's work product to reflect its inadequacy, consistent with our formal response to WIPO RFC3, on record at WIPO's web site.
"(3) modification of the VI-B(3)(b)(7) constituency allocation of seats on the Names Council, transferring one seat from the group provisionally recognized at Berlin (corporate) to our (indigneous) group."
The crux of the request appears to be a feeling that the indigenous intellectual property group led by Messrs. Brunner and Gough was not treated fairly by the other IPC organizers, and that a separate constituency with its own Names Council representative should be created. [Request 2 appears to have nothing to do with the recognition of the IPC, reflecting instead a substantive disagreement with the recommendations of the World Intellectual Property Organization relating to domain names.]
In response to the request, the Reconsideration Committee asked a series of questions to the IPC, which are posted at http://www.icann.org/committees/reconsideration/ipc-letter-27dec99.htm. Mr. Steve Metalitz, then president of the IPC, responded to the questions; his response is posted at http://www.icann.org/committees/reconsideration/metalitz-response-10jan00.htm. Mr. Brunner followed with a response of his own, posted at http://www.icann.org/committees/reconsideration/brunner-response-13jan00.htm.
Over the past 11 months, the ICANN staff and the Reconsideration Committee (in its past and present incarnations) have scrutinized the structure and By-laws of the IPC, both in theory and in practice. See http://ipc.songbird.com/IPC_Bylaws_dec_15_correct.htm. The Committee has observed the operation of the IPC over an extended period of time, and concludes that there is no basis on which to alter or overturn its recognition by the Board. The IPC is open to new members (including Messrs. Brunner and Gough and any organizations represented by them); it has applied its membership criteria evenhandedly; it is reasonably open and transparent; and it was recognized on the basis of a general community consensus (which obviously did not include Messrs. Brunner and Gough, but was nevertheless an evident consensus).
The Committee notes that all current members of the IPC have been required to complete and submit applications for membership, something it appears Messrs. Brunner and Gough have elected not to do. As Mr. Metalitz notes in his response, Messrs. Brunner and Gough have been invited to apply for membership in the constituency. Through Mr. Metalitz, the IPC has stated publicly its commitment to treat any such applications fairly and impartially, consistent with its stated policies. As members of the IPC, Messrs. Brunner and Gough would be able to take part in its activities and deliberations on an equal basis with any other members, and to advocate for indigenous intellectual property interests within the IPC and the DNSO. The Reconsideration Committee sincerely hopes they will do so. In the meantime, the Committee sees no reason to revoke or alter the Board's recognition of the IPC.
In sum, the Reconsideration Committee recommends that the Board take no action in response to RR 99-1.