[Gnso-igo-ingo-crp] Number of UDRPs being "targeted" by WIPO as a performance metric

[George Kirikos]

Hi folks,

There was an interesting article at IP-Watch last week that mentioned
various performance targets set by WIPO, see:

http://www.ip-watch.org/2015/10/12/wipo-reports-on-domain-name-disputes-sets-new-targets/

In particular, there are references to the budget document at:

http://www.wipo.int/edocs/mdocs/govbody/en/a_55/a_55_5_rev.pdf

(see pages 62-65) I'm particularly concerned about how, on page 64,
that "Effective Intellectual Property Protection in the gTLDs and the
ccTLDs) is being measured using "No. of UDRP based gTLD and ccTLD
cases administered by the Center". They have targets of 3,000 gTLD
cases in the 2016/17 budget period, despite *never* having had so many
cases in the past, see:

http://www.wipo.int/amc/en/domains/casesx/all.html

Year    Cases
==============
2008:   2,009
2009:   1,804
2010:   2,295
2011:    2,323
2012:    2,549
2013:    2,257
2014:    2,288
2015:    1,869** (as of October 21, 2015)

To me, it seems that if IP Protection is effective, one should be
seeing *fewer* UDRPs, not more of them! Just like if we're measuring
traffic safety, fewer traffic court cases would be a sign that drivers
are obeying the law.

In my opinion, this reveals a huge disconnect between WIPO and the
rest of society. It seems that WIPO is displeased if the number of
domain name disputes is falling or drops to zero, presumably because
it cuts into their "business". Indeed, they're targeting increases in
the number of cases far higher than have existed in the history of the
UDRP program (2012 was the all-time high, with 2,549 cases).

On page 63, they consider one of the "Major Risks" to be a "Decrease
in UDRP filing", and suggest that they will mitigate that by
"Increasing user-friendliness; Adjusting UDRP procedures (where
ICANN-tolerated); continued Uniform Rapid Suspension (i.e.(URS))
monitoring; participating in ICANN UDRP review; more regular
partnering with IP and related associations; prioritizing case
administration and policy development resources to strike balance
between “staying in the market” and adding specific WIPO value."

This really demonstrates the risks of "forum shopping". Courts and
tribunals are supposed to be neutral, and should not be actively
encouraging disputes. Those that see UDRP as a "business" that has
growing "performance targets" will try to influence policies and
change their behaviour to increase the number of complaints,
regardless of the actual incidence of bad behaviour by domain name
registrants.

There are some companies, for example, that are in the business of
building jails, and try to influence the laws so that more and more
people are incarcerated, independent of the actual level of crime in
society. Indeed, if crime is falling, they need more and more
non-crimes to be reclassified as "crimes" in order to keep the jails
full. This appears to be the path that WIPO is taking, with its
budgetary targets and statements.

Ayn Rand warned about this in "Atlas Shrugged"

"Well, when there aren't enough criminals one makes them. One declares
so many things to be a crime that it becomes impossible for men to
live without breaking laws. Who wants a nation of law-abiding
citizens? What's there in that for anyone? But just pass the kind of
laws that can neither be observed nor enforced or objectively
interpreted – and you create a nation of law-breakers – and then you
cash in on guilt. "

This working group should resist the efforts of those who have an
interest in increasing the number of disputes, because it helps their
"business" that cashes in on "guilt." Our duty should be to look at
existing laws, and not create new ones that help those whose
businesses rely upon an ever-expanding definition of "crime."

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/