[Gnso-ppsai-pdp-wg] Commercial Use - White Paper
Volker Greimann
vgreimann at key-systems.net
Tue May 13 09:18:46 UTC 2014
Hi John,
the problem is that commercial use is a very wide scope. Some courts
have held that providing space for Google Ads on your private blog can
be held to be commercial use. Or if I linked to an ebay auction I set up
and mentioned that in my blog, it could be construed to be commercially
used. Does that mean I lose my right to use a privacy service?
What about little work-from-home shops selling self-made stuff online?
Do they really have to put their home address on their domain? If I were
an activist for religion (or lack thereof), womens rights, abotrion,
death penalty and sell stickers promoting my cause in a small webshop,
do I suddenly have to tell every nutter out there where I live?
While I agree that there may be abuse of the services provided by whois
privacy, I do not agree that commercial activity is where we should draw
the line. Illegal activity using such services is what needs to be
prohibited, nothing else.
Best,
Volker
>
> I think it's important to note that nobody is currently proposing that
> commercial entities shouldn't be allowed to use p/p services. (Put
> aside the text in Bob's email, because I am guessing that is not what
> he actually meant. Anyway, it's not what's proposed in the paper.)
> Rather, the proposal is that p/p services should not be allowed for
> domain names _used for commercial purposes_. The status of the
> registrant as a registered business, or as an individual, is
> irrelevant. For some specific discussion on this point, I'd encourage
> you to review pages 8-9 of the document that Libby disseminated.
>
> To your specific point, pre-launch trademark searching and clearance
> wouldn't be "using the domain name" for "commercial activity" as it's
> contemplated. To be precise, the registrant might be engaged in
> commercial activity in other ways, but _not involving the use of the
> domain name_. The idea is that if a website is actually selling goods
> and services, either via the domain name or some website that it
> points to (e.g., all of the product are listed at example.com
> <http://example.com>, but it points to paypal.com <http://paypal.com>
> for transactions), that would be a commercial _use_ of a domain name.
> If you've just registered a domain name in preparation for the launch
> of a new brand or product line, but the domain name isn't actually
> transacting business, I don't think it's commercial _use_. We're
> talking about situations where you select a product, put it in your
> cart, pull out your credit card, and conduct a financial transaction,
> and I'd argue that Internet users have the right to an accurate,
> transparent Whois record at that point in time. In any case, I think
> that these issues are discussed in more detail in the document, and in
> particular, pages 8-9.
>
> Let me answer your earlier question about medsindia.com
> <http://medsindia.com>. But first, let me first point out that in
> numerous cases where we've submitted evidence to registrars about
> rogue Internet pharmacies, they respond, "We unfortunately cannot take
> any action unless you prove that the Whois record is inaccurate." (Put
> aside for a moment any disagreement with this response [I do not think
> it's accurate]; the point is that it's a common response by some,
> although not all, registrars.)
>
> So, to your question, there are two possibilities:
>
> 1. The domain name is accurately registered. Great; now, perhaps, law
> enforcement or the courts can take action as appropriate.
> 2. Or, it's a falsified or inaccurate Whois. Even if it takes a
> little leg work, the inaccurate nature of the Whois information
> can be established, and a WDPRS complaint can be submitted. Either
> the Whois is corrected, or it isn't and the domain name is suspended.
>
> In other words, if some registrars say, "The only enforcement
> mechanism we're going to recognize against domain names is a) a court
> order in our jurisdiction, or b) a false Whois," _medsindia_.com is an
> example where all options are off the table. As explained, Canadian
> law enforcement has no jurisdiction because Canada is the one country
> where the drugs aren't shipped to; and a WDPRS is off the table
> because there's no way to prove the Whois is falsified -- it's behind
> a p/p service.
>
> Hope that helps!
>
> John Horton
> President, LegitScript
>
>
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>
>
>
> On Tue, May 13, 2014 at 9:37 AM, McGrady, Paul D.
> <PMcGrady at winston.com <mailto:PMcGrady at winston.com>> wrote:
>
> Hi Kiran,
>
> I'm not sure how pre-launch trademark searching and clearance
> isn't a commercial activity. Further, Bob's email said: "This
> is one of the reasons for keeping whois data public for commercial
> entities." There is a big difference between excluding proxy
> services for commercial entities vs excluding proxy services for
> websites that resolve and contain commercial content ("This is one
> of the reasons for keeping whois data public for commercial
> entities.").
>
> What is actually being proposed?
>
> Best,
> Paul
>
>
> -----Original Message-----
> From: Kiran Malancharuvil
> [mailto:Kiran.Malancharuvil at markmonitor.com
> <mailto:Kiran.Malancharuvil at markmonitor.com>]
> Sent: Tuesday, May 13, 2014 8:31 AM
> To: McGrady, Paul D.
> Cc: John Horton; gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>
> Subject: Re: [Gnso-ppsai-pdp-wg] Commercial Use - White Paper
>
> Paul, we've discussed that as well. With the input from several of
> our clients that engage in this as a best practice, we understand
> that a pre-launch website would be able to utilize p/p because it
> is not yet engaging in commercial activity. Once the
> product/service goes live and is an active offering, it can drop
> the veil so-to-speak.
>
> K
>
> Kiran Malancharuvil
> Internet Policy Counselor
> MarkMonitor
> 415-419-9138 <tel:415-419-9138> (m)
>
> Sent from my mobile, please excuse any typos.
>
> > On May 12, 2014, at 5:27 PM, "McGrady, Paul D."
> <PMcGrady at winston.com <mailto:PMcGrady at winston.com>> wrote:
> >
> > Thanks Kiran. Thanks Bob.
> >
> > The other side of the balancing act on this is, of course, the
> legitimate need for commercial entities to have access to proxy
> services. For example, a brand owner who is trying to roll out a
> new brand and attempting to secure the corresponding domain names
> in advance of their first trademark filing in order to cut down on
> the amount of cybersquatting.
> >
> > Best,
> > Paul
> >
> >
> > -----Original Message-----
> > From: Kiran Malancharuvil
> [mailto:Kiran.Malancharuvil at markmonitor.com
> <mailto:Kiran.Malancharuvil at markmonitor.com>]
> > Sent: Tuesday, May 13, 2014 8:25 AM
> > To: McGrady, Paul D.
> > Cc: John Horton; gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>
> > Subject: Re: [Gnso-ppsai-pdp-wg] Commercial Use - White Paper
> >
> > Paul,
> >
> > Agree with Bob. No one expects them to be honest but with the
> new verification requirements, they will lose the domain name.
> >
> > K
> >
> > Kiran Malancharuvil
> > Internet Policy Counselor
> > MarkMonitor
> > 415-419-9138 <tel:415-419-9138> (m)
> >
> > Sent from my mobile, please excuse any typos.
> >
> > On May 12, 2014, at 4:58 PM, "McGrady, Paul D."
> <PMcGrady at winston.com
> <mailto:PMcGrady at winston.com><mailto:PMcGrady at winston.com
> <mailto:PMcGrady at winston.com>>> wrote:
> >
> > John,
> >
> > Setting aside for a moment the specific example below, the part
> I don't completely understand is why we think that a domain name
> owner who is using the domain name for a blatantly illegal purpose
> without regard for the law will somehow be inclined to provide
> accurate information in their WHOIS records if they are not
> allowed to contract for a proxy service.
> >
> > Thanks in advance for your thoughts.
> >
> > Best,
> > Paul
> >
> >
> > Paul D. McGrady Jr.
> >
> > Partner
> >
> > Chair, Trademark, Domain Names and Brand Enforcement Practice
> >
> > Winston & Strawn LLP
> > 35 W. Wacker Drive
> > Chicago, IL 60601-9703
> >
> > D: +1 (312) 558-5963 <tel:%2B1%20%28312%29%20558-5963>
> >
> > F: +1 (312) 558-5700 <tel:%2B1%20%28312%29%20558-5700>
> >
> >
> Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html>
> | VCard<http://www.winston.com/vcards/996.vcf> |
> Email<mailto:pmcgrady at winston.com <mailto:pmcgrady at winston.com>> |
> winston.com <http://winston.com><http://www.winston.com>
> >
> > <image001.jpg>
> >
> >
> > From: gnso-ppsai-pdp-wg-bounces at icann.org
> <mailto:gnso-ppsai-pdp-wg-bounces at icann.org><mailto:gnso-ppsai-pdp-wg-bounces at icann.org
> <mailto:gnso-ppsai-pdp-wg-bounces at icann.org>>
> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org
> <mailto:gnso-ppsai-pdp-wg-bounces at icann.org>] On Behalf Of John Horton
> > Sent: Tuesday, May 13, 2014 5:40 AM
> > To: gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org><mailto:gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>>
> > Subject: Re: [Gnso-ppsai-pdp-wg] Commercial Use - White Paper
> >
> > Hi all,
> >
> > Following up on the white paper that Libby Baney just
> circulated, and as we wrap up our discussion regarding
> distinguishing between commercial and non-commercial use, I
> thought it might be helpful to provide a concrete example of a
> domain name that (I trust we can all agree) is being used for
> commercial purposes. Perhaps we can collectively think through
> whether it makes sense for this domain name to be afforded privacy
> protection. For simplicity, I am only using one domain name as an
> example, but there are thousands like this in our database alone.
> I hope that a concrete example will be helpful to the discussion.
> >
> > Let's take the domain name medsindia.com
> <http://medsindia.com><http://medsindia.com>. First, as you can
> verify with a Whois query, it is using proxy/privacy services.
> >
> > Registrant Name: General (c/o Rebel.com<http://Rebel.com>
> Privacy Service) Registrant Organization: Private Domain Services
> Registrant Street: 300-12 York Street Registrant City: Ottawa
> Registrant State/Province: ON Registrant Postal Code: K1N 5S6
> Registrant Country: CA Registrant Phone: +1.866-497-3235
> <tel:%2B1.866-497-3235><tel:%2B1.866-497-3235 <tel:866-497-3235>>
> > Registrant Phone Ext:
> > Registrant Fax:
> > Registrant Fax Ext:
> > Registrant Email: IVP1JQKYRM3LQED1 at rebelprivacy.com
> <mailto:IVP1JQKYRM3LQED1 at rebelprivacy.com><mailto:IVP1JQKYRM3LQED1 at rebelprivacy.com
> <mailto:IVP1JQKYRM3LQED1 at rebelprivacy.com>>
> >
> > How is it being used? It's fairly straightforward: it sells
> addictive (controlled substances) and other prescription drugs
> without a valid prescription. But that's not all:
> >
> > * As noted, it sells prescription drugs, including controlled
> substances, without requiring a valid prescription.
> > * The drugs are not sold by a pharmacy licensed or otherwise
> recognized in the patient's jurisdiction, as is the standard
> requirement.
> > * The drugs are considered unapproved or falsified, depending
> on the regulatory language in the jurisdiction. Part of the reason
> is that they are illegally imported into the customers'
> jurisdiction and thus unregulated for safety or authenticity.
> > To be clear, this domain name is not being used for legal
> commercial purposes in any jurisdiction. (Despite its claim to be
> using a licensed pharmacy in India, not even in India, for reasons
> I can explain separately if anyone wants to know.) I choose this
> domain name because I do not think its unlawful or dangerous use
> can be disputed. I would further argue that the use of the p/p
> protection allows the unlawful actor to continue operating, as I
> explain below.
> >
> > Being privacy protected, of course, we can't immediately tell
> who is operating the website. Can we get law enforcement or courts
> in the registrar's jurisdiction to do anything -- e.g., go to the
> registrar and ask or require them to reveal the identity of the
> registrant? No. Try to buy a drug such as Xanax from this website.
> This Internet pharmacy will ship anywhere in the world except to
> Canada -- where its registrar and servers are located. To protect
> its ability to sell drugs globally, the registrant has sacrificed
> sales to a single country, and chosen a registrar and servers
> there, to create a safe haven. Consequently, Canadian law
> enforcement cannot point to a violation of Canadian law: no drugs
> are being shipped into Canada -- just everywhere else around the
> world. (Which, we can infer, is why this registrant removed Canada
> from their shipping destinations.) And, the reverse is true -- a
> court order or law enforcement request from outside of Canada can
> simply be ignored by the registrar and server companies in Canada.
> Those who have argued that the best way to deal with p/p use by
> illegal actors is simply to get a court order are not accounting
> for this quite common scenario.
> >
> > Being able to hide their identity in the Whois record is also
> the perfect set up for another reason: many registrars have said
> in the past that they only way that they can (or perhaps, will)
> take action on a domain name is if the Whois record is falsified.
> But how would we know? It is privacy protected. That removes the
> WDPRS as a mechanism for dealing with abusive behavior.
> >
> > Does this commercial registrant have a legitimate need for p/p
> services? I would argue that that is not the question to be
> answered. The question is: Does a consumer, consumer protection
> firm, government agency, etc. have the right to know who is
> operating this website? I would submit to this group that it is
> incumbent upon us to recommend a thoughtful, balanced policy that
> prevents this sort of "perfect set up" for Internet criminals to
> hide their identity as this one has. Keep in mind that, as pointed
> out in the circulated paper, no such right exists in the offline
> world -- rather, consumers have the right to know who they are
> dealing with. Ample requirements exist for business registrations
> to do business transparently. There should be no difference in the
> online world.
> >
> > Finally, recall that the Affirmation of Commitments (AoC)
> requires "timely, unrestricted and public access to accurate and
> complete WHOIS information." The AoC goes on to state that WHOIS
> policy and its implementation needs to meet "the legitimate needs
> of law enforcement and promote consumer trust." I ask the group,
> is ICANN fulfilling its commitment, not only to law enforcement
> but especially to promote consumer trust, if it allows websites
> like this to continue using p/p services?
> >
> > Thank you for your consideration.
> >
> > John Horton
> > President, LegitScript
> >
> [https://static.legitscript.com/assets/logo-smaller-cdb8a6f307ce2c6172e72257dc6dfc34.png]
> >
> >
> >
> > Follow LegitScript:
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> >
> > On Mon, May 12, 2014 at 11:40 PM, Libby Baney
> <libby.baney at fwdstrategies.com
> <mailto:libby.baney at fwdstrategies.com><mailto:libby.baney at fwdstrategies.com
> <mailto:libby.baney at fwdstrategies.com>>> wrote:
> > All --
> >
> > I appreciate the dialogue the group has begun regarding WHOIS
> transparency for entities engaged in commercial activity. With the
> hope of encouraging discussion on the merits of the issue, I am
> pleased to share the attached white paper: Commercial Use of
> Domain Names: An Analysis of Multiple Jurisdictions.
> >
> > As you'll see, the paper addresses the following question:
> Should domain name registrants who sell products or services on
> their websites should be able to conceal their identity and
> location in the domain name registration? The paper argues that
> they should not. Rather, the authors find that requiring domain
> name registrants engaged in commercial activity to provide
> transparent WHOIS information falls squarely in line both with
> ICANN's commitment to Internet users and existing global public
> policy to keep businesses honest and consumers safe. Accordingly,
> the paper recommends an approach that balances personal privacy
> and consumer protection rights. On the one hand, domain names used
> for non-commercial purposes (e.g., personal blogs) should, the
> authors believe, be permitted to utilize privacy or proxy
> registration. This reflects a fundamental right to privacy of
> domain name registrants not engaged in commerce. However, the
> authors do not believe the same right exists for registrants of
> websites engaged in commerce - a conclusion borne out by our research.
> >
> > It goes without saying that this group is divided on the issue
> of requiring WHOIS transparency for sites engaged in commercial
> activity. As some in the PPSAI WG have commented, these issues may
> be complicated but they nonetheless merit our full consideration.
> We hope the attached white paper stimulates further thinking and
> group discussion on the issues.
> >
> > I look forward to continuing the discussion tomorrow.
> >
> > Libby
> >
> > --
> > Libby Baney, JD
> > President
> > FWD Strategies International
> > www.fwdstrategies.com
> <http://www.fwdstrategies.com><http://www.fwdstrategies.com>
> > P: 202-499-2296 <tel:202-499-2296><tel:202-499-2296
> <tel:202-499-2296>>
> >
> >
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