[Gnso-ppsai-pdp-wg] Revised Reveal Doc

Metalitz, Steven met at msk.com
Mon Mar 23 22:21:23 UTC 2015

Though it has been repeatedly mentioned that the DMCA may be a model of uncertain value for our purposes, I need to correct Kathy's last statement.  17 USC section 512(h)(1) provides, "A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection."  As previously noted, if the request contains the proper information and is in the proper form and contains a "sworn declaration" that the information obtained "will only be used for the purpose of protecting rights under this Title," then "the clerk shall expeditiously issue and sign the proposed subpoena."  17 USC 512(h)(4).  

-----Original Message-----
From: Kathy Kleiman [mailto:kathy at kathykleiman.com] 
Sent: Monday, March 23, 2015 6:08 PM
To: Kiran Malancharuvil; gnso-ppsai-pdp-wg at icann.org; Metalitz, Steven; Graeme Bunton
Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc

Hi Kiran,
Thank you for your comments. The agency issue worries some of us greatly.  By what authority is the "agency" established; what actual knowledge of the a) trademark or copyright owner's rights are there, b) by what expertise can he/she make an assessment of infringement and c) by what right, ability or authority can the signatory bind the trademark or copyright owner to the allegations being made.

I should note that the proposed changes follow the DMCA: for a Reveal Subpoena, the request must be done by an attorney for the Requester or by the Requester himself/herself/itself (in the US we call it "pro se").

> Hi Kathy,
> Thanks for forwarding this to the group, and special thanks for forwarding with enough time to review before the call!
> We can certainly discuss in more depth on the call tomorrow, but I am not a fan of the changes in Section II.  I'm concerned about the level of minutiae in the language, and I'm wondering how and why that level of micromanagement will be helpful/probative information to the Service Provider.  In very large companies, the trademark owner/president/VP/partner, etc. isn't actually involved directly in the enforcement activity.  It should be enough to demonstrate agency, as the previous language did.
> Perhaps I will have more later, but I wanted to float that to the group before the call.
> Thanks,
> Kiran
> Kiran Malancharuvil
> Policy Counselor
> MarkMonitor
> 415.222.8318 (t)
> 415.419.9138 (m)
> www.markmonitor.com
> -----Original Message-----
> From: gnso-ppsai-pdp-wg-bounces at icann.org 
> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kathy 
> Kleiman
> Sent: Sunday, March 22, 2015 11:19 AM
> To: gnso-ppsai-pdp-wg at icann.org; Metalitz, Steven; Graeme Bunton
> Subject: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
> Hi All,
> Steve and I talked on Friday, and he asked me to circulate a Revised Reveal document -- which is attached.  This document has three types of changes based on our discussion last Tuesday and subsequent research:
> 1. To the title (reset pending further discussion) 2. To Section II, 
> the Request Templates to clarify the requester and his/her direct 
> knowledge of the alleged infringement and legal authority to represent 
> the Requester, and 3. Annex (reset to original pending discussion with 
> drafters over the narrow goals and intents of this section)
> All other edits remain - to continue our excellent discussion of high 
> standards for disclosure, human rights issues, etc. There is also much 
> to discuss regarding follow-up processes (after the Request) including
> a) when are appeals allowed and for whom, and b) how does a Provider challenge an alleged "wrongful disclosure" of its Customer's information?
> Best and have a good rest of weekend,
> Kathy

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