[bc-gnso] BC statement on IRT

[Liz Williams]

Hello everyone

It is very clear that we have do not have agreement in the  
constituency about the report.

I would suggest that we only note the completion of the report and  
that we encourage members to put in their comments and questions to  
the forum.

Best wishes.

Liz
On 24/06/2009, at 3:57 AM, David J Castello wrote:

>
> The Castello Cities Internet Network agrees with George Kirikos'  
> proposal stated below for an alternative and balanced statement.
>
>
> Best,
> David J Castello
> Castello Cities Internet Network, Inc.
> www.CCIN.com
>
>
> ----- Original Message ----- From: "George Kirikos" <icann at leap.com>
> To: "BC gnso" <bc-gnso at icann.org>
> Sent: Tuesday, June 23, 2009 5:24 PM
> Subject: Re: [bc-gnso] BC statement on IRT
>
>
>>
>> Hello,
>>
>> We do not support that proposed BC statement on the IRT. We propose  
>> an
>> alternative and balanced statement as follows:
>>
>> ----- start proposed statement ------
>> "The BC appreciates the effort of the IP constituency's work in
>> creating a proposal that would protect trademark holders interests.
>> However, much work remains to be done to ensure that the needs of
>> trademark holders are balanced against the needs of domain  
>> registrants
>> for certainty, predictability and due process. The BC looks forward  
>> to
>> working with the IP constituency, and other constituencies within the
>> GNSO on an improved version of the IRT's report, one that can achieve
>> consensus support of all stakeholders."
>> ----- end proposed statement ------
>>
>> As we have stated previously, we have grave concerns about the IRT,
>> and the "answers" provided by the members of the IRT team have been
>> spurious. To give just two concrete examples (there are many more if
>> one reads our prior comments submitted in the official comment
>> periods):
>>
>> a) No good reason has been provided as to why the IRT proposes that
>> *all* domain names, irregardless of age, should be subject to the  
>> URS,
>> especially given that markholders ultimately would want the URS to
>> apply to legacy TLDs such as com/net/org. The URS is an extraordinary
>> procedure that would take down a domain name with short notice (so
>> short that a registrant on vacation may not receive actual notice  
>> of a
>> complaint). Such an extraordinary procedure should be targeted only
>> towards the most abusive domain names, one where "time is of the
>> essence." Time is not of the essence if a domain name is 10 years  
>> old!
>> The onus should be on markholders to not delay in bringing complaints
>> if there is truly a matter that is "urgent" and requires the URS. We
>> proposed that the URS either apply only to domains younger than a
>> certain age (e.g. 6 months), or that the time to respond to  
>> complaints
>> be a function of the age of the domain (e.g. 15 days + the age of the
>> domain in months). Businesses and consumers require certainty and due
>> process, and a system like the URS as proposed that would threaten
>> their legitimate domain name, one that they've owned for years,  
>> denies
>> them both certainty and due process.
>>
>> b) No good reason has been provided as to why the IRT proposes to
>> limit notification to registrants to only 2 emails and 1 letter by
>> post for the URS. Email is unreliable given the amount of spam that
>> exists, and international mail might not be received in time to
>> respond to a complaint, given the slow delivery times of the
>> international postal system. We specifically pointed to opt-in fax as
>> a highly reliable system to notify registrants of complaints, and the
>> IRT provides excuses that leave objective people incredulous.  
>> Footnote
>> 30 of the report stated:
>>
>> "The IRT decided that such requirements would add significant
>> complexity and cost to the system due to time zones and national and
>> local laws regarding faxing and calling."
>>
>> This is simply astonishing for the IRT to say, given that (a) the
>> faxes are 100% opt-in, and (b) the UDRP has been providing fax
>> notification for over 10 years without issues. The cost to send a
>> 1-page fax notification of a complaint (using email to fax gateways)
>> is on the order of 10 cents, far below the postal delivery stamp  
>> fees.
>>
>> A legitimate URS complaint by a markholder will not be impacted if  
>> the
>> registrant receives proper and timely notification (actual notice) by
>> fax. The URS was supposedly intended for "clear cut" cases, and
>> notification shouldn't impact the registrant's ability to defend a
>> "clear cut" case of abuse.
>>
>> However, illegitimate and frivolous URS complaints with weak claims
>> that hope to win by default due to lack of registrant notification
>> will greatly benefit by lack of fax notification, lack of actual
>> notice. A legitimate registrant will strongly defend their domain  
>> name
>> and is hurt by lack of the ability to respond and prepare a defence.
>>
>> The only logical conclusion is that the IRT has intentionally acted  
>> to
>> put the rights of illegitimate and frivolous URS complainants with
>> weak claims ahead of legitimate domain registrants with strong
>> defences, by putting up spurious obstacles to the domain registrants
>> receiving actual notice and due process. This is no surprise given  
>> the
>> IP's pro-complainant dominance of the IRT process.
>>
>> While the IRT members posture in public that their report was a
>> "compromise" I hope it is clear from just the above two cases (and
>> there are more) that it truly was not any compromise, but was an
>> extreme and unbalanced report.
>>
>> Legitimate domain registrants like my company and others in the BC  
>> and
>> other constituencies are prepared to work with the IP constituency to
>> come up with a balanced solution within the GNSO process. But, until
>> such time, the IRT report should continue to draw skepticism within
>> the ICANN community, and be rejected.
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>> P.S. One can read our early substantial comments on the IRT, indeed
>> with novel approaches (such as the concept of easements), that were
>> ignored by the IRT:
>>
>> http://forum.icann.org/lists/irt-draft-report/msg00000.html
>> http://forum.icann.org/lists/irt-draft-report/msg00015.html
>> http://forum.icann.org/lists/irt-draft-report/msg00016.html
>> http://forum.icann.org/lists/irt-final-report/msg00000.html
>

Liz Williams
+44 1963 364 380
+44 7824 877757