Greetings!
Good. Trust-building it is.
And if hard cases usually make bad law, I would not have anyone believe
it is always so fated.
Finding an appropriate definition for non-commercial entities is going
to be very difficult. But Avri is on the right track by doing the
exercise of dissecting justifications put forth (or logically implied)
for positions on the discrimination criterion. (Avri's message is a
little further down this thread, for those who like me enjoy
thunderbird's threaded sortings of emails). In this case, justifications
for [policy] positions are intertwined with policy(/charter)
interpretation, as well as with matters of facts. It is agreeing on the
status of the facts that is going to be the most difficult, so let's
right now make way with assertions about the detention of any facts or
evidences upper-handedness.
I do not see why we couldn't pull it off.
For the sake of discussion, let's work through what we've got. We have
the beginning of an agreement in the extreme cases that should or
shouldn't be allowed . Which means we probably have some sort of common
understanding of the ideas and principles that the charter requirements
are trying to accomplish.
We can think of some other cases too, real or imagined, that would help
us narrow down the confines of the grey area between what should be
considered commercial and non, in the context of gNSO policy making.
I think, writing the rules on a blank canvas, one would certainly have
to try to protect the balance of power and *interests* (these are
expressed in *perspectives*, but I will come back to this) between both
Houses. Each SG owes to itself, as well as to the whole NSO, and also to
the whole of ICANN for that matter, the obligation to protect itself
from *capture*. Policy capture brings dysfunctional legitimacy which
threatens the very shaky foundations on which ICANN dwells.
I therefore submit that in drafting and interpreting the
*non-commercial* requirements, in a NSO that has its dividing lines
along just this distinction, then we should be very aware that orgs come
and go, that some can be created just to fit the requirements, that some
may be capturists in disguise, and so on and so forth.
Going back to the points (a little further up the thread) made by Evan,
the ALAC liaison, on whether or not policy perspective has, should have,
or could have an appropriate role to play in such a discriminating
scheme. In principle, most working sets of political groupings form
around *both* 1) a recognized set of functionally equivalent entities
AND 2) an admitted *perspective* on (good) policy positions in a policy
area or set of policy areas. Think political parties. So, on the merits,
it is in no way objectively undemocratic nor otherwise reprehensible to
discriminate on the basis of some article of political faith of a given
grouping. Could be basic human rights, could be anything.
Now we may not want to bring policy differences as a discriminating
factor in the context of already existing ICANN political structure.
Surely, a time will come when the CSG will face participation from
(functionally equivalent) commercial entities with different classes of
interest, possibly colliding. Think last AT&T merger attempt. And it
would certainly be unfair to deny the waters of the NCSG harbor to any
trademark-loving academics on the basis that their policy positions are
aligned with those of the CSG.
But let us not kid ourselves, Evan, and act offended when policy
perspectives are (most naturally, inaesthetical as you may think this
be) used in our natural processes of raising the capture flag.
In any case and back to our definition/interpretation problem, and
solely from the perspective of preventing non-commercial capture by
commercial interest, which should not be the sole axis of framing and
debate but nevertheless is a major and legitimate one, I would say that
we would need to, in principle :
A- discriminate against orgs that have commercial membership (downstream)
B- discriminate against orgs that are members of commercial orgs (upstream)
C- discriminate against orgs that are dependent upon commercial
benedictions to exist or fulfill their mission/values/roles
[especially so if those benedictions are within the policy areas delt
with in gNSO and ICANN: e.g. an org has to obtain licensing rights from
an commercial organisations in order to perform its functions -- and
licensing rights are a policy area dealt in ICANN -- than this org,
although non-commercial in itself by all measure, should be
discriminated against on the basis that it is most likely representing
the interest of an org that wouldn't otherwise have NCSG standing.
D-specify the degree and the side to which NCSG will be prone to err on.
Should members have a low threshold to meet in order to successfully
oppose prospective orgs in a context where the EC should accept most
everyone? that could be one way of working this out. Or it could be as
it is now, with the possibility for the EC to err on the side of fear of
caprture, and then let the members duke it out.
E- possibly discriminate against orgs that would present a apparent
conflict of interest with regard the commercial/non-commercial divide
[consensus on the details would be hard to pull]
##########
In the mean time:
The "commercial focus" language is an acceptable ersatz in the absence
of a more thorough definition. It gives leaway to our representatives to
make decisions and leaves the final appreciation to the members, who can
file appeals. But I think we could work on collecting the different
things that we can all agree on that should in principle direct our
search for a proper "non-commercial" definition.
So, although I consider your (Alain) reaction good, that is coming up on
the list and dissagreeing, let's just take this one a little slower
(like starting a new thread would be a good idea) and work both in the
abstract and with this USOC case, if enough people are interested, and
see if we can come up with something more precise. That is, of course,
if it is relevant at all in the sense that the charter may be amended
(the ignorance of which I shamelessly admit ... should have thought of
that before writing all this).
Nicolas, off to bed
On 11/15/2011 5:55 PM, Alain Berranger wrote:
> Greetings Nicolas,
>
> I generally buy the Chambers of Commerce arguments... NPOC is not
> submitting any Chamber of Commerce membership application... for the
> USOC case please refer to the stream of emails and we can exchange
> further, if you wish.
>
> Generally I think Avri's criteria of assessing what are the main
> activities of an organization applying for membership is excellent. So
> in reference to the London games, NPOC would support an application by
> the UK Olympic Committee but not by the London olympic games
> organizing committee (See the distinction in Kelly's email response to
> Avri).
>
> Best
>
> Alain
>
> On Tue, Nov 15, 2011 at 5:08 PM, Nicolas Adam <[log in to unmask]
> <mailto:[log in to unmask]>> wrote:
>
> catching up on a lot of discussion folks. This debate may be more
> advance now than I am aware of.
>
> Alain,
>
> Don't make this about "being" or "not being" a *non-profit*. It is
> about being or not being *non-commercial*. Non-profit and
> non-commercial are objectivaly distinctive. one of the distinction
> we chose to make was about the commercial status of the org
> members themselves, which is a very objective way to discriminate.
>
> Tell me straight please, would you have wanted to draft rules that
> would have enabled Chambers of Commerce to apply for and receive
> NCSG membership? This is a trust-building or trust-breaking
> question as far as i'm concern. And a fundamental one at that.
>
> Also, why isn't the org in question interested in joining the CSG?
>
> Nicolas
>
>
> On 14/11/2011 2:27 PM, Alain Berranger wrote:
>> Thanks Kelly for putting evidence of USOC's not-for-profit status
>> squarely on the table. It is now hoped that the NCSG-Executive
>> Committee opponents to USOC's membership will change their minds
>> and rally to the NPOC-Executive Committee's recommendation. Kudos
>> to Avri for her mature and transparent attitude!
>>
>> I sincerely hope future discussions about pending and new NPOC
>> members will be based solely on evidence, ie. facts verifiable by
>> an independant and uninterested third party. Let it be clear,
>> once again, that the NPOC Constituency will accept only
>> non-commercial members, thus facilitating the work of the
>> NCSG-Executive Committee on admission to the Stakeholders' Group.
>>
>> Best, Alain
>>
>> On Mon, Nov 14, 2011 at 12:07 PM, Kelly Maser
>> <[log in to unmask] <mailto:[log in to unmask]>> wrote:
>>
>> Thank you to Alain for speaking up to discuss why the U.S.
>> Olympic Committee is truly a non-profit entity. The USOC
>> and its predecessor organizations have been responsible for
>> overseeing amateur sports in this country, not just at the
>> elite level but also encouraging sports, healthy lifestyles,
>> competition and fair play at the grassroots levels as well.
>> The USOC has many member organizations, some of which are
>> community-based organizations such as the YMCA or Boys and
>> Girls Clubs of America, the Girl Scouts, etc. But the
>> primary members are the National Governing Bodies ("NGBs")
>> for the individual sports (/e.g., /USA Track & Field, USA
>> Swimming, U.S. Ski and Snowboard Association, U.S. Figure
>> Skating, U.S. Tennis Association). The majority of the
>> USOC's budget goes to support athletes, either through direct
>> grants or through funding the NGBs. The USOC also provides
>> support to the NGBs (and their athletes) in terms of
>> governance support, coaching assistance, sports medicine,
>> sports psychology and the like. The USOC also operates three
>> U.S. Olympic Training Centers where thousands of athletes
>> train each year. Here are a few statistics for you:
>>
>> For example, from 2002-2010, these fees were used to assist
>> the USOC in:
>>
>> (a) annually hosting approximately 25,000 athletes,
>> coaches, officials and program staff for the National
>> Governing Bodies ("NGBs") for the individual Olympic sports
>> at its three Olympic training centers (located in Chula
>> Vista, California, Colorado Springs, Colorado and Lake
>> Placid, New York) and at its U.S. Olympic Education Center in
>> Marquette, Michigan, at a cost of $360 million over that
>> period;
>>
>> (b) providing support to and sending elite U.S.
>> athletes and teams to national and international
>> competitions, most notably the Olympic Games, at a cost of
>> $80 million;
>>
>> (c) working with local communities and 19 different NGBs on
>> behalf of the Community Olympic Development Programs in
>> Atlanta, Georgia; Chicago, Illinois; Springfield, Missouri;
>> Moorestown, New Jersey; San Antonio, Texas; Verona,
>> Wisconsin; and Park City and Kearns, Utah;
>>
>> (d) directing over $160 million in grants and
>> services to athletes, including monetary stipends, health
>> services and benefits, educational grants, and more;
>>
>> (e) providing additional support to 47 different
>> National Governing Bodies in the form of NGB Programs and
>> Services including sport performance, coaching assistance,
>> sports medicine, sports science and organizational support,
>> at a cost of $235 million; and
>>
>> (f) funding the USOC's many other statutory
>> functions.
>>
>> Please let me know if there are other questions that I could
>> help answer.
>>
>> Sincerely,
>>
>> Kelly**
>>
>> **
>>
>> *Kelly Maser **| Associate General Counsel|****United States
>> Olympic Committee****|****Office**: 719.866.4115
>> <tel:719.866.4115> |****Cell**: 719.330.0266
>> <tel:719.330.0266> |****Fax**: 719.866.4839
>> <tel:719.866.4839> | [log in to unmask]
>> <mailto:[log in to unmask]>** |****www.teamusa.org
>> <http://www.teamusa.org>*
>>
>> *From:*[log in to unmask]
>> <mailto:[log in to unmask]>
>> [mailto:[log in to unmask]
>> <mailto:[log in to unmask]>] *On Behalf Of *Alain
>> Berranger
>> *Sent:* Saturday, November 12, 2011 3:09 PM
>> *To:* Avri Doria
>> *Cc:* [log in to unmask]
>> <mailto:[log in to unmask]>; [log in to unmask]
>> <mailto:[log in to unmask]>
>> *Subject:* [npoc-voice] Re: [NCSG-Discuss] Notes from NCSG-EC
>> Teleconference on 8 November 2011
>>
>> Thks Avri,
>>
>> I have no appetite for minority appeal that I cannot hope to
>> win under current membership mindset, sense of entitlement,
>> grand-fathering, numbers and distribution... but NPOC
>> colleagues may decide differently.
>>
>> I think we need in general to follow evidence-based
>> membership criteria and follow the same criteria for all. So
>> my 4 arguments remain as far as I am concerned and can be
>> verified by evidence (facts) not opinion, hearsay, bias, etc...
>>
>> Different strokes for different folks? For instance, how can
>> we have NCUC/NCSG individual members working for a law firm
>> or a telecom company? but we do. The NPOC membership is
>> clear: all are not-for-profit and only play one side of the
>> street.
>>
>> To the risk of repeating myself, national olympic committees
>> are not-for-profits working year in and year out for athletes
>> and not to be confused with the games organizing committees
>> which are for profit (or at least not for loss) once in a
>> blue moon when the country is awarded the games...
>>
>> For instance re London 2012: one needs to distingush between
>> the games organizers - http://www.london2012.*com*/
>> <http://www.london2012.com/> which is for profit and get
>> sponsors to support the 2012 games and the UK Olympic
>> committee which every year supports UK athletes and get
>> sponsors to support athletes- http://www.olympics.*org*.uk/
>> <http://www.olympics.org.uk/>
>>
>> Alain
>>
>> On Sat, Nov 12, 2011 at 3:42 PM, Avri Doria <[log in to unmask]
>> <mailto:[log in to unmask]>> wrote:
>>
>> Hi,
>>
>> Assuming there are 14 members who agree with your position,
>> the charter has provision for an appeal process that includes
>> the possibility of taking it to a full membership vote if the
>> difference of opinion cannot be resolved.
>>
>> > 1. Any decision of the NCSG-EC can be appealed by
>> requesting a full vote of the NCSG membership. There are
>> several ways in which an appeal can be initiated:
>> >
>> > · If 15 NCSG members, consisting of both
>> organizational and individual members, request such an appeal
>> the NCSG Executive Committee will first take the appeal under
>> consideration.
>> >
>> > · If, after consideration of any documentation
>> provided by those making the appeal, the NCSG-EC does not
>> reverse its decision, the NCSG-EC and those making the appeal
>> should attempt to negotiate a mutually agreeable solution.
>> >
>> > · If the NCSG-EC and those making the appeal cannot
>> reach a mutually acceptable agreement on the decision within
>> 30 days, then an NCSG vote will be scheduled as soon as
>> practicable.
>> >
>> > · For this type of appeal to succeed 60% of all of the
>> NCSG members must approve of the appeal in a full membership
>> vote as defined in section 4.0.
>>
>>
>> Some comments below.
>>
>>
>> On 12 Nov 2011, at 15:16, Alain Berranger wrote:
>>
>> > Dear Colleagues,
>> >
>> > I want to state I disagree with the decision to exclude the
>> USOC. For 4 reasons:
>> >
>> > 1) Its vision: to enable America's athletes to realize
>> their Olympic and Paralympic dreams.
>>
>> That is its vision, but it is debatable that is main purpose
>> is to administer commercial licensing agreement. Or at
>> least this seems to be the resumption of those who voted
>> against their membership.
>>
>> The charter indicates:
>> "3. Is engaged in online activities that are primarily
>> noncommercial, including, e.g., advocacy, educational,
>> religious, human rights, charitable, scientific and artistic,
>> and"
>>
>> So the question is, what are its primary activities, granting
>> licenses or supporting athletes. I have certainly heard
>> arguments on both sides of this issue, and personally think
>> it is a toss up. For example, it is well known that most
>> olympians have to find their own funding in the US. This
>> varies by country, but in the US, the US Olympic Committee
>> does not support athletes as far as I have been able to
>> discover. So what do they do beyond sanction events and
>> licensing?
>>
>>
>>
>> > 2) its mission: To support U.S. Olympic and Paralympic
>> athletes in achieving sustained competitive excellence and
>> preserve the Olympic ideals, and thereby inspire all Americans.
>> >
>> > 3) It is a not-for-profit with IRS exemption under 501 c 3
>>
>> As the charter indicates, being not-for-profit is not
>> sufficient. For example the Chamber of Commerce in
>> not-for-profit and yet obviously not a non-commercial entity.
>> Specifically:
>>
>> "4. In the case of a membership-based organization, the
>> organization should not only be noncommercial itself, but
>> should have a primarily noncommercial focus, and the
>> membership should also be primarily composed of noncommercial
>> members. (E.g., a chamber of commerce, though it may be a
>> noncommercial organization itself, and might even have some
>> noncommercial members, is primarily composed of commercial
>> organizations and has a commercial focus and would not be
>> eligible for membership.)"
>>
>> So the question becomes, who are the principles members? I
>> do not know the answer to this.
>>
>> avri
>>
>>
>> >
>> > 4) fundraising is an activity of all not-for-profits,
>> including sponsoring, and thus does not make a not-for-profit
>> a commercial organization. I think you are confusing the USOC
>> per se with the various olympic games hosting organizations
>> set up for Lake Placid, Los Angeles games, etc...
>> >
>> > Alain
>> >
>> > On Thu, Nov 10, 2011 at 6:11 PM, Robin Gross
>> <[log in to unmask] <mailto:[log in to unmask]>> wrote:
>> > The new NCSG Executive Committee held its first
>> tele-conference on Tuesday and we made great progress,
>> particularly with respect to establishing a process for
>> handling NCSG membership applications and dealing with the
>> NPOC applications that had come in since the election. So
>> below are my notes from the EC meeting's discussion.
>> >
>> > Thanks,
>> > Robin
>> >
>> > NCSG-EC Teleconference - 8 Nov. 2011
>> > Transcript & mp3 recording:
>> https://community.icann.org/display/gnsononcomstake/Meetings
>> > Attendance: Michael Carson, Rafik Dammak, Robin Gross,
>> Milton Mueller, Klaus Stoll
>> > NCSG-EC Mtg Discussion Agenda:
>> >
>> > - Review of NCSG membership application procedures
>> >
>> > - Review of pending NCSG membership applications
>> >
>> > - Establishment of NCSG Financial Committee
>> >
>> > --------------------------------------------------
>> >
>> > MEETING NOTES:
>> >
>> > These 8 orgs were approved for NCSG membership:
>> > ALSAC / St. Jude
>> > Australian RedCross Society
>> > Church of God in Christ
>> > Goodwill Industries
>> > International Baccalaureate Organization
>> > The Association of NGOs, The Gambia (TANGO)
>> > Water Environment Research Foundation
>> > YMCA of The Gambia
>> >
>> > These 3 orgs were determined ineligible for NCSG membership:
>> > 1. Kaswesha Community Resource Center
>> > Reason provided for non-approval: Not the exclusive user of
>> at least one domain name (a requirement for eligibility under
>> NCSG Charter Section 2.2.1).
>> > They were invited to re-apply when they have a
>> noncommercial domain name.
>> >
>> > 2. Civil Society Movement Against Tuberculosis in
>> Sierre Leone (CISMAT-SL)
>> > Reason provided for non-approval: Not the exclusive user of
>> at least one domain name (a requirement for eligibility under
>> NCSG Charter Section 2.2.1).
>> > They were invited to re-apply when they have a
>> noncommercial domain name.
>> >
>> > 3. US Olympic Committee:
>> > Reason provided for non-approval: USOC is substantially a
>> major sports licensing business and NCSG is devoted to the
>> protection of noncommercial interests.
>> > They were invited to join ICANN's Intellectual Property
>> Constituency as the more appropriate place to protect their
>> interests.
>> >
>> > These 7 orgs are undergoing further evaluation:
>> > Child Protection Alliance
>> > Information Technology Association of the Gambia
>> > National Coalition for the Homeless
>> > National Grange of the Order of Patrons of Husbandry
>> > Pilots N Paws
>> > Tranquil Space Foundation
>> > Young Life
>> >
>> >
>> > ** Attached to this email is a flow chart to explain the
>> agreed process for handling NCSG Membership Applications
>> going forward.
>> >
>> > A few notes on the procedures for handling NCSG Membership
>> Applications:
>> >
>> > Completed NCSG Membership applications should be submitted
>> by the Applicant to the email address [log in to unmask]
>> <mailto:[log in to unmask]> for consideration by the
>> entire NCSG Executive Committee.
>> >
>> > NCSG-NCUC Membership application forms are available on the
>> NCSG wiki (for individuals and for organizations).
>> >
>> > Members of the NCSG-EC have 2 weeks to conduct the required
>> due diligence on the applications (more flexible if a holiday).
>> >
>> > Decisions to approve membership applications require the
>> full consensus of the voting members of the NCSG Executive
>> Committee (NCSG Charter 2.4.2).
>> >
>> > Verification of a named official representative's authority
>> to represent an organizational applicant should be
>> independently verified by the EC (NSCG Charter 2.2.4.1).
>> >
>> > Aggregate voting / representation is not permitted for
>> organizations. Each organization must be represented by a
>> different person. No single person (or group of persons,
>> i.e., a law firm) can represent two or more organizations in
>> NCSG at the same time. This policy discourages attempts to
>> game the system through aggregating membership votes.
>> >
>> > Organizations with a nonprofit legal structure are
>> nonetheless ineligible for membership in NCSG if they are
>> substantially a commercial or business activity and their
>> interests are more appropriately represented in one of the
>> commercial stakeholder groups (NCSG Charter 2.2.2).
>> >
>> > An organization's official representative to NCSG cannot be
>> a GNSO Council Representative for the Intellectual Property
>> Constituency (or other officer or member of the IPC or CSG).
>> Outside trademark lawyers are discouraged as the official
>> representative for an org to NCSG since NCSG is devoted to
>> protecting noncommercial interests.
>> >
>> > ON A SEPARATE ISSUE:
>> > The EC is in the process of establishing a NCSG Financial
>> Committee (as per NCSG Charter 2.1. & 2.6.) and is looking
>> for volunteers from among the NCSG membership - people with
>> fundraising expertise and time to devote to NCSG fundraising
>> activities and ICANN resource allocations. So please let an
>> EC member know if you'd like to be considered for membership
>> on the NCSG Financial Committee. Thank you!
>> > --------------------
>> >
>> >
>> >
>> >
>> >
>> >
>> > IP JUSTICE
>> > Robin Gross, Executive Director
>> > 1192 Haight Street, San Francisco, CA 94117 USA
>> > p: +1-415-553-6261 <tel:%2B1-415-553-6261> f:
>> +1-415-462-6451 <tel:%2B1-415-462-6451>
>> > w: http://www.ipjustice.org e: [log in to unmask]
>> <mailto:[log in to unmask]>
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> > --
>> > Alain Berranger, B.Eng, MBA
>> > Member, Board of Directors, CECI, http://www.ceci.ca
>> > Executive-in-residence, Schulich School of Business,
>> www.schulich.yorku.ca <http://www.schulich.yorku.ca>
>> > NA representative, Chasquinet Foundation,
>> www.chasquinet.org <http://www.chasquinet.org>
>> > interim Vice Chair, NPOC, NCSG, ICANN, http://npoc.org/
>> > O:+1 514 484 7824 <tel:%2B1%20514%20484%207824>; M:+1 514
>> 704 7824 <tel:%2B1%20514%20704%207824>
>> > Skype: alain.berranger
>> >
>>
>>
>>
>> --
>> Alain Berranger, B.Eng, MBA
>>
>> Member, Board of Directors, CECI, http://www.ceci.ca
>> <http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
>>
>> Executive-in-residence, Schulich School of Business,
>> www.schulich.yorku.ca <http://www.schulich.yorku.ca>
>>
>> NA representative, Chasquinet Foundation, www.chasquinet.org
>> <http://www.chasquinet.org>
>> interim Vice Chair, NPOC, NCSG, ICANN, http://npoc.org/
>> O:+1 514 484 7824 <tel:%2B1%20514%20484%207824>; M:+1 514 704
>> 7824 <tel:%2B1%20514%20704%207824>
>> Skype: alain.berranger
>>
>>
>>
>>
>> --
>> Alain Berranger, B.Eng, MBA
>> Member, Board of Directors, CECI, http://www.ceci.ca
>> <http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
>> Executive-in-residence, Schulich School of Business,
>> www.schulich.yorku.ca <http://www.schulich.yorku.ca>
>> NA representative, Chasquinet Foundation, www.chasquinet.org
>> <http://www.chasquinet.org>
>> interim Vice Chair, NPOC, NCSG, ICANN, http://npoc.org/
>> O:+1 514 484 7824 <tel:%2B1%20514%20484%207824>; M:+1 514 704
>> 7824 <tel:%2B1%20514%20704%207824>
>> Skype: alain.berranger
>>
>
>
>
> --
> Alain Berranger, B.Eng, MBA
> Member, Board of Directors, CECI, http://www.ceci.ca
> <http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
> Executive-in-residence, Schulich School of Business,
> www.schulich.yorku.ca <http://www.schulich.yorku.ca>
> NA representative, Chasquinet Foundation, www.chasquinet.org
> <http://www.chasquinet.org>
> interim Vice Chair, NPOC, NCSG, ICANN, http://npoc.org/
> O:+1 514 484 7824; M:+1 514 704 7824
> Skype: alain.berranger
>