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

[Nat Cohen]

Eloquently stated George.

Are UDRP providers neutral forums or are they revenue seeking organizations
growing revenues by cozying up to "IP and related associations" and by
"adjusting UDRP procedures" so that they are more user-friendly, meaning
Complainant-friendly?


On Wed, Oct 21, 2015 at 12:44 PM, George Kirikos <icann at leap.com> wrote:

> 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/
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