Reconsideration Request 99-1
Submitted by: Eric Brunner and Bob Gough
Received: 12 September 2002

From: Eric Brunner <brunner@maine.rr.com>
To: <reconsider@icann.org>
Sent: Friday, June 25, 1999 4:48 PM
Subject: Reconsideration Request Notice: VI-B(3)(b)(7) decision

=== Begin Request ===

References:
http://www.icann.org/reconsideration.html
http://www.iipc.tp/index.html

Pursuant to the Reconsideration Policy adopted March 4, 1999, [ICANN Bylaws, Article III, Sec. 4(a)], the organizers and members of the group which made the (Indigenous) Intellectual Property Constituency proposal envisioned in Article VI-B(3)(b)(7), request that the Interim Board reconsider that body's decison of May 25-27, of provisional recognition of another group as the DNSO's "Trademark, Intellectual Property and Anti-counterfeiting Interest" constituency.

1. (a) Our name, address, and contact information are unchanged from our constituency proposal itself:

Robert P.W. Gough, P.O. Box 25, Rosebud, SD 57570
Phone: (715) 426-1415
Fax: (715) 426-1415
E-mail: rpwgough@aol.com

Eric Brunner
Nokia Research Center
3 Burlington Woods Drive, Suite 250, Burlington, MA 01803
Phone: (781) 359-5159
Fax: (781) 359-5196
E-mail: eric.brunner@research.nokia.com, brunner@world.std.com, brunner@maine.rr.com

(b) Our URL is now resolved as "www.iipc.tp", under the jurisdiction of the holding agents of the indigenous government in exile of the former Portugese Colony, now occupied by Indonesia, on Timor.

2. The specific action of ICANN for which reconsideration is sought is provisional recognition of a group as the "Trademark, Intellectual Property and Anti- counterfeiting Interest" constituency, envisioned in Article VI-B(3)(b)(7) of the ICANN Bylaws.

3. The date of the action was 25 through 27 May.

4. The manner by which we are affected by the action is non-recognition as the "Trademark, Intellectual Property and Anti-counterfeiting Interest" constituency, and non-membership within that constituency. This adversely affects indigenous intellectual property rights.

5. A temporary stay of the action is requested.

6. The specific steps we ask ICANN to take are:

(a) Specific Fact Issues:

(1) determination of the membership criteria which when applied to our request to obtain equal status as a member group of the the group which obtained provisional recognition, resulted in that group's offer of non-member "observer" or other inferior status.

(2) determination whether this membership criteria and all other criteria were applied consistently by that group.

(3) determination whether the group which obtained provisional recognition made reasonable efforts to "operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness."

(3) determination of whether any ICANN Provisional Board members other than those specifically noticed by our group were aware that a controversy existed, and that the core issue was not identified.

(4) determination of what discussion the ICANN Provisional Board entertained on the subject of applicant group competencies prior to voting unanimously to extend provisional recognition to a group unable or unwilling to state their basis for excluding equitable indigenous participation in the working process of a VI-B(3)(B)(7) constituency.

(5) determination of which applicable By-Laws or other guidelines, if any, were violated by the parties.

(b) 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.

7. The grounds on which the action should be modified are asserted in the specific fact issues alleged above. Additionally, should the reconsideration pannel finds no By-Laws fact issue exists, a prima facia case for discrimination exists.

8. We have previously submitted our proposal, and a record of email exchanged in the period in question is already in ICANN's possession. In addition to this, we presently offer the following:

(a) the controlling ICANN text on openness, transparency and fairness for constituency organizers,

(b) A summary of the telephone transactions conducted by the primary point of contact for this constituency proposing group between himself and the organizers of the group which ICANN provisionally recognized.

We request the personal journals of concerned persons be made available, as well as organizational minutes, for the purpose of establishing which specific criteria for "membership" formed the basis for the denial of membership status to our group, within the provisionally recognized one, and for the purpose of establishing that ICANN Board members were aware of the issues, not limited to establishing a record of discriminatory preference along cultural, ethnic, and religious lines.

9. In support of our request for a temporary stay of the action, we offer the following statement of harm which results from non-stay of the action:

The Names Council will not be capable of identifying or of protecting indigenous intellectual property rights while these interests are excluded from that body.

The Interim ICANN Board will share this incapacity at this critical period, and responsibility for having caused or permitting such a situation to arise, with prior knowledge.

The interests of Indigenous Polities and Peoples, specifically the existence of an "indigenous IP" in the Internet, and the interests of the DNSO Names Council in formulating a policy to address the problems posed by a group of advocates of a Euro-American conception of intellectual property rights, and the interests of ICANN in obtaining legitimacy from Indigenous Polities, are all harmed by non-stay of the action.

Sincerely,

Eric Brunner and Bob Gough,
for the (Indigenous) Intellectual Property Constituency proposing group.

Attachments 8(a) and 8(b) follow:
=====

a) ... Constituency organizers are reminded that constituencies will be required (in accordance with Bylaw provisions adopted by the ICANN Board on March 31), to "operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." ...

b)

X-From_: iipc@world.std.com Sat Jun 19 16:23 EDT 1999
To: brunner@maine.rr.com
Subject: Record mail sent to group
Date: Sat, 19 Jun 1999 16:23:29 -0400
From: IIPC list-manager (Eric Brunner) <iipc@world.std.com

------- Forwarded Message

Message-Id: <3.0.6.32.19990602202437.00999790@maine.rr.com
X-Sender: brunner@maine.rr.com
X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32)
Date: Wed, 02 Jun 1999 20:24:37 -0400
To: tl-ip@world.std.com
From: Eric Brunner <brunner@maine.rr.com
Subject: [tl-ip] ICANN status after Berlin

01.06.99 Status of Work - ICANN Berlin

The Internet Corporation for Assigned Names and Numbers (ICANN) accredited a proposal for the "Trademark, Intellectual Property and Anti-Counterfeiting" sub-constituency of the Domain Name Supporting Organization (DNSO). This proposal was brought by a group of professional organizations and two rights organizations, lead by Jonathan Cohen (FICPI), Susan Anthony (INTA) and Todd Cohen (MPAA). The ICANN Interim Board accreditation vote occurred on May 27th.

There were three such proposals, listed by theme and organizer:

"professionals" Mike Heltzer (mheltzer@inta.org)
"anti-trademark" Bret Fausett (baf@fausett.com)
"indigenous" Eric Brunner (eric.brunner@research.nokia.com)

A side-by-side comparison of these was prepared by Ellen Rony and may be
found at:
http://www.domainhandbook.com/dnso-ip.html.

In the very early morning (EDT) of May 25th, I attempted to participate via telephone with the persons meeting in the room set aside for this constituency to hold final organizational discussions. I was not successful, as the hotel staff could not locate anyone in this specific room. Later in the early morning (EDT) of the same day, I attempted to access the Berkman Center's remote participation facility, again without success, due to a technical problem at the Center.

In the early afternoon (EDT) of May 25th, I called Mike Roberts, Interim CEO of ICANN, and learned that the board intended to accredit the proposal tendered by the Heltzer/Cohen group. Later that afternoon, I called and left message with several of the Cohen et al. group requesting that our specific concerns be incorporated into their draft.

In the early evening (EDT) Jonathan Cohen, Susan Anthony, Peter Dengate Thrush and some additional persons called me from Berlin. I took the call on my mobile phone, and we held our first discussion -- they in a hotel room in Berlin, me at Howell's Truck Stop in Kittery, Maine. As an introduction to our concerns in the contest of "names only", I covered the Makah, Abenaki, Pequot and Crazyhorse situation -- they made appreciative responses, one even mentioned that he'd spent some time with an Inuit group (maybe he meant Innu) as a young man. We clearly reached some understanding, that both groups viewed "names" as just a part of the area where policy is lacking, hence a governance mechanism required, and that "trademark" was not sufficient to solve the "names" problem.

One hour later I called Susan Anthony from my home in Portland and went over the four changes to the "New York draft" which the Heltzer/Cohen group had made earlier in the day to consolidate their proposal and a subset of the "anti-trademark" group, Mikki Berry's "Domain Name Rights Coalition". The ability of these two diametrically opposed sides of a highly polarized conflict to find some common basis for cooperation surprised me. Over the evening and early morning hours of May 26th, I consulted with Jim Casey and Bob Gough, and was able to speak only briefly again with Susan Anthony, who was momentarily away from the day-long ICANN Open Board meeting. I made several subsequent attempts to contact the Cohen/Anthony/Thrush group via phone and via the Berkman Center's remote mechanism during the day, without success.

I spent a part of the night reviewing my memories, notes and email from the conversations with most of the people on this list, in an attempt to be clear in my own mind before attempting to "close the deal" , about what were the central characteristics of indigenous intellectual "property".

At midday (EDT) a second conference call took place with the same parties, with the exception of Peter Dengate Thrush, who was absent, and oddly also characterized "not a party" to the Heltzer/Cohen group by Jonathan Cohen. Due to some technical failure(s) in Berlin, my email to Jonathan, Susan and Peter had not been received, so I dictated the text of the message to them.

The changes I requested in their proposal draft ("Berlin Document") were:

1. add "Indigenous Intellectual Property Council" to the list of members, after "Domain Name Rights Coalition" in the prefatory section, and in the signatory section,

2. add "and indigenous views as defined in the IIPC proposal, attached as an appendix" after "and minority views", a change made to accommodate the DNRC, in the body of the proposal.

There were two other substantive suggestions, that we hold one officer seat, an "Indigenous VP", and that we name two alternates to the Names Council. I gave myself as the I-VP, as a placeholder (not a job I want), and Alan Mandell and Ms. Aroha Mead (Maori) as the Names Council Alternates. I did not view these as vital, and waived them (I have never viewed seats on the ICANN Names Council in the same rosy light as every other actor seems to share, I want to draft the law, at least the bits which concern ourselves, and not attempt to participate in the "Internet Gold Rush".) After some back and forth, I clarified that we viewed the membership (co-equal status) and our definitional control of what "indigenous intellectual property" means as a non-negotiable.

Jonathan Cohen said that they had already submitted their final proposal text prior to making this call, citing the technical difficulties in getting document uploading and working email as the reason for making their final submission an hour or more before the 7pm Berlin-time deadline which Susan had mentioned in the immediate prior call. I pointed out to him that the changes required could be done in pencil and the markup document walked down the hallway to Mike Robert's room, which would meet the submission deadline.

Jonathan Cohen concluded the call saying they'd get back to me, and I took this to mean that they would make a good-faith attempt to both meet the 7pm Berlin-time deadline and accept our reasonable requirements. There were no further calls, and I sent email to Mike Roberts and Becky Burr that night, appraising them what discussions had taken place that no conclusion had be reached.

On the 28th, shortly after midnight (EDT), Jonathan Cohen wrote me, offering observer status, with full membership at some later date, should our group meet the membership criteria. There was no explanation as to which criteria for membership our group did not meet. I declined this offer. Later the same day, about 7am (EDT) Mike Roberts wrote confirming the accreditation of the Cohen/Anthony/Cohen group and otherwise expressing the necessity and utility of indigenous peoples getting on the ICANN bus, under the terms offered. Again, there was no mention of criteria for membership our group did not meet, nor any details of the ICANN Interim Board's consideration of our proposal on its merits. I again declined the offer.

Both Bob and Jim were cc'd on all traffic.

I thank Peter d'Errico for remembering me when he was copied on Michael Froomkin's original comments mail, Robert Williams, who helped me get a respectable shot across WIPO's bows, Oren Lyons and Bruce Clark, who also assisted. I also thank Aroha Mead for her comments and attempts to get Professor Erica-Irene Daes and I in communication, and each of you for taking the time to think about my questions.

This concludes this phase of ICANN work. The longer-term work remains unchanged, to supplement the Biodiversity Convention and related texts of the UN IP system in the area of intangible _indigenous_ IP and networks of digital computers.

The URL for this list is http://www.world.std.com/~iipc.

Kitakitamatsinowpowaw,

Eric

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