[Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C

Sat Nov 18 00:36:05 UTC 2017

Hi Petter,

On Fri, Nov 17, 2017 at 6:22 PM, Petter Rindforth
<petter.rindforth at fenixlegal.eu> wrote:
> And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced".

Those are not valid arguments, just to say they're "fair and
balanced", without explanation (with reference to facts and law).

Let me abstract away from domains and ICANN for a moment. Imagine
we're tasked to look over software for an airplane, a purely
technical/engineering endeavour. In our review, looking at something
else entirely, we come across a critical vulnerability that could
cause the plane to crash under some rare circumstances. What would we
do? Logically, we'd fix the code so that the plane would never crash
under that circumstance, period.

This is what our job was in this PDP. We were to look at the all the
law, facts around IGOs, immunity and the UDRP, and thoroughly research
the topic. During that review, we discovered there was a "critical
vulnerability" in the UDRP itself. Rather than being an airplane
crash, this vulnerability is that some domain name registrants would
be denied the ability to have their day in court, to have their case
decided on the merits "de novo" (if an IGO successfully asserted an
immunity defense after winning a UDRP).

That's all it is --- a "software bug" under some scenarios. The
designers of the UDRP hadn't ever contemplated that scenario in 1999.
Because we did such a thorough job in our research, far better than
what happened in 1999, we're in the best position to decide how to fix
the "software bug."

Option A is a complete technical fix to the "software bug". The domain
name registrant can have their day in court. If the IGO wants to press
the matter, they have to give up the immunity, importantly, ****just
like they would have to do had the current UDRP not created the "bug"
in the first place*****. (re-read that part between the asterisks --
that is critical) Or the IGO can use one of the workarounds we
identified to completely insulate themselves from the immunity
issue/risk (agent, assignee, licensee brings the action, thereby
shielding the IGO). The IGO is in the best position to mitigate (if we
did the proper Risk Analysis I've called for). The domain owner is in
no position to mitigate.

So, suppose prior to Option A, the "plane crash" might happen 10 times
in the next 100 years. Under Option A, it happens zero times. The
problem is solved. The solution perfectly mirrors a world without the
UDRP --- both parties are in the exact same legal position as if the
UDRP hadn't happened. A level playing field is maintained, and any
rights that exist in the real world are fully respected under Option
A. No one's rights have been interfered with.

Now, those backing Option C say "Well, we'll implement a so-called
"fair and balanced" solution that makes the plane crash happen just 5
times in the next 100 years. "Yippee" they say, we've made an
improvement! Their frame of reference, their "starting point" isn't
"zero crashes" -- their focus was a world *with* the bugs, a world of
"10 crashes per 100 years" as the "status quo".

Yet, the plane still crashes under Option C, and supposedly we should
be willing to "accept that". Under Option C, it is entirely possible
for an arbitration panel to rule differently than the courts would
have ruled in a dispute. That's undeniable, because they are by
definition different. Option C is a poor facsimile of real court. The
domain name owner is *entitled* to court access, the real thing. No
one has the UDRP or arbitration as an "entitlement" -- it's a bonus
that is entirely supposed to be negated if one goes to court. Going to
court is supposed to "reset things" and have a level playing field
where everything is supposed to be decided under real laws.

Option B, to continue the story, says "We'll fix the code completely
for existing planes. New planes can get the "fair and balanced
solution" pushed by Option C's partial fix. So, perhaps now, planes
would crash only 2 times in the next 100 years (0 crashes for old
planes, though, and all the crashes on the new planes). Those who fly
on new planes have that choice, if they want to take the risk, they go
into it with eyes wide open.

Option #6 would have been similar in nature, in that it tries to
reduce the number of plane crashes (by making it harder to get to the
"crash scenario" computer code, kind of filtering the scenarios
somewhat). So, instead of crashing 5 times per 100 years under
existing Option C, it'd be a lower number if Option #6 was integrated
into a new Option C, maybe 3 times per 100 years.

I hope that helps folks look at things in a different way. Folks like
myself who are convinced Option A is the correct solution cannot
understand why those backing Option C are willing to accept those
"plane crashes" at all! We're not here to play politics and say "well,
we made an improvement, we did the best we could". We're supposed to
be here to analyze all the facts, knowledge, law, and analysis to get
to the correct decision (Option A).

I leave Option C backers with this question --- do you acknowledge
that under Option C, arbitration panels might make different rulings
than a court would??? Yes or no.

If the answer is "Yes", explain to us why that should be acceptable to
domain name registrants?

A domain name registrant, who is entitled to the protection of their
national courts, should not lose the right to that court access,
simply because the UDRP was not coded properly in 1999 and contains
software bugs. It should be our duty to fix the problem, eliminate the
software bugs,  rather than knowingly keeping a smaller or different
bug still lurking in that code (a bug that might have further
unintended consequences down the road that we haven't contemplated yet
that others might exploit).

Notice, I'm asking very simple questions here that cut to the heart of
the issues, yet instead of any answers, some are playing political
games, saying "well, we made a potential small improvement, you should
be happy, that's all you're going to get".

Sincerely,

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

P.S. This "immunity" issue  isn't the only "software bug" in the UDRP.
As some of you know from our RPM call on Wednesday, I talked about the
other "bug" whereby some courts (e.g. in the UK) are refusing to hear
de novo reviews/appeals of UDRP decisions at all, e.g. see the
Yoyo.email case:

http://www.bailii.org/ew/cases/EWHC/Ch/2015/3509.html

"My conclusions on the application to strike out the Claim are:

1) adopting the reasoning of Ms Proudman in Patel drives me to hold
that on a proper construction of the UDRP clause 4k does not give rise
to a separate cause of action in favour of the claimant;

2) nor does it afford any jurisdiction to this Court to act as an
appeal or review body from the Decision;"

This is clearly something the UDRP drafters in 1999 never
contemplated, and is a software bug we'll have to deal with in the RPM
PDP, as it strikes at the very bargain that was made when the UDRP was
adopted, namely that it wouldn't interfere with legal rights on access
to the real courts for a decision on the merits. For it to happen in
some jurisdictions wasn't known by those drafting the UDRP. (also
applies equally to URS)

I'll be writing more about that "software bug" in the RPM PDP's
mailing list probably next week.