[Gnso-ppsai-pdp-wg] An Edited Version of Draft Disclosure Text

Kathy Kleiman kathy at kathykleiman.com
Tue Mar 17 12:59:37 UTC 2015

Hi Luc,
Tx for your close review.

Re: III.C.5 Agreed. The goal here is to build in the flexibility -- so 
that Providers *may* provide a response or a justification of "no 
reveal" if it is clear on its face. The example that comes to mind is a 
clearly frivolous filing for reveal -- for example stating I own the 
word "sex" -- at the start of August when the registrant may be away for 
a few weeks on vacation. If it is a Safe Sex website or use of the 
domain name to circulate safe sex literature to communities in Texas (or 
other places where such literature is frowned upon), that may be an easy 
one for the Provider not to reveal - or to wait until the Registrant 
gets back. But I agree that ultimately, under the system we are setting 
up, it is the Provider's choice.

RE: Complex case process process
I agree also: Once a lawsuit commences, all bets are off and the court 
process takes over.

p.s. it's not a joke - from ancient history, someone did (repeatedly) 
say he owned the word "sex" online and in all domain names....he lost :-)
> Hello Kathy,
> A few comments regarding those modifications:
> III.C.5
> I understand the intent behind it, but in my opinion this would limit the accreditation as PP to law firms. Registrars are not staffed with lawyers that can apprehend the intricacies of copyright laws and their exceptions. If we are to keep this disclaimer, we would need to clearly state that PP has no obligation to mount a defence for its customers. It shall be the latter who have to do so.
> Complex case process proposal
> We should add here that if the requestor commences a lawsuit against the PP, the complex case advisory process will be trumped.
> Best Wishes,
> Luc
> On 16 Mar 2015, at 19:42, Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>> wrote:
> All,
> The Agenda for our meeting tomorrow appears to set a goal of finishing our discussion on Category F-- "Conclude discussion of framework for Category F (see attached document)."  While Staff has done a great job catching many changes we proposed (tx you!), there are more that have been proposed and not objected to. There are even more changes and edits that we have not gotten to as we have not yet moved to all topics, including Annexes, etc.
> Therefore, with respect and concern for the desire to move forward, I share a version with the changes we have proposed, and a few that we need to propose:
> - Section I.B that Providers be allowed to share information about Requestors who abuse their system (absent sanctions for abuse, which we have not yet defined, this is an alternative protection) -- and earlier proposed.
> - Section II.A,B,C that Requestors provide the name, address, telephone number of the trademark owner as well as his/her/its representative. The representative (such as an attorney) may or may not be in the same jurisdiction as the trademark or copyright owner, and we don't want to track down first the counsel and later the trademark owner. It should all be in one place... also, if the signatory is not the Trademark Owner, who are they?  As their statement under Penalty of Perjury is set out as a protection for the Customer, who they are and under what color of authority they represent the IP owner is a key piece of information in this process.
> - Section III.A that 15 calendar days for a Customer response. We are told by groups engaged actively in the reveal process in other areas that 15 is really the minimum for receiving, researching, contacting experts, and responding. They actually recommend 30 days...
> - Section III.C.3 that Provider may act on this own information and research in the case Customer does not or is unable to respond (e.g., August action and Battered Women's Shelter, Neighborhood Safety Program, well-known magazine).
> - Section III.C.5  that Provider may adopt the standard of obvious clear-cut infringement absent clear or reasonable defense.
> - Section III.D adds "lack of" to the full list of pending proceedings which, if they are taking place, the Provider may choose not to act until completed.
> - Section III.G is the proposed new section: Nothing in this proposal shall prohibit a Provider from determining the Customer’s use of the Service may violate its terms of service and reveal the underlying information despite the criteria of this proposal not being met.
> - ANNEX: Many questions regarding the Annex, including whether an appeals process has been agreed to? If so, it should be balanced, with access to both Requestors and Customers, and limited so that Providers do not have to face an appeal of each and every decision - but only exceptions or controversies passing a high threshold.  This draft tries to offer balancing language, but this is an area which we have not discussed I would ask the Chairs to spend at least one session on it before we finalize language and send it out for public comment.  Certainly the standard for action in bad faith from the requestor should be "knowingly false representations to the Provider," not "knowingly false representations to the Provider with intent to deceive." Providing "intent to deceive" is an almost impossible standard requiring Providers and Customers to know what was in the head and heart of the Requestor. A knowingly false statement to the Provider on the few key pieces of information a Requestor is asked to provide should be sufficient -- especially in a matter as significant as a Reveal -- and sufficiently hard for a Provider or Customer to prove...
> Everything in "Track Changes." Doc attached.
> Best,
> Kathy
> <Draft Disclosure text v4 with added language covering HR concerns - 16 Mar 2015-1.docx (with agreed_balancing edits) (00768348xB3D1E).DOCX>_______________________________________________
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