[Gnso-rpm-protection] [gnso-rpm-wg] Food for Thought: DMCA procedure at YouTube contrast with URS/UDRP

Paul Keating paul at law.es
Mon Jan 8 23:19:05 UTC 2018 

I have no issue with background reading.  My experience, however, is that such materials often become described later on as being “evidence” and “factual”.

Sent from my iPad

> On 8 Jan 2018, at 21:10, claudio di gangi <ipcdigangi at gmail.com> wrote:
> 
> Paul,
> 
> As I understand, we are not at the policy setting stage.
> 
> We are starting with issue identification and then data gathering.
> 
> The previously circulated blog article was simply for background reading.
> 
> Best regards,
> Claudio
> 
> 
> 
>> On Mon, Jan 8, 2018 at 2:51 PM, Paul Keating <paul at law.es> wrote:
>> Please see my email to Brian. Setting policy based on outlier scenarios or undocumented blog articles is a no go for me.     Unless you want to open the entire policy to such an approach - starting with the requirement to actually establish a trademark using traditional legal principles. 
>> 
>> Sincerely,
>> Paul Keating, Esq.
>> 
>>> On Jan 8, 2018, at 6:07 PM, claudio di gangi <ipcdigangi at gmail.com> wrote:
>>> 
>>> Paul,
>>> 
>>> I don't have the exact numbers.
>>> 
>>> Anecdotally, it appears a non-trivial portion of the suspended domains are being renewed by the losing registrant; see this blog article:
>>> https://domainnamewire.com/2016/11/18/strange-thing-happening-domain-names-suspended-urs/
>>> 
>>> From the domains I've researched, a much smaller subset are being put back into use by redelegating the Name Servers. 
>>> 
>>> I previously sent around reference to a domain that was suspended, and the registrant took back control and the domain is being offered for sale.
>>> 
>>> Best regards,
>>> Claudio
>>> 
>>>> On Mon, Jan 8, 2018 at 10:58 AM, Paul Tattersfield <gpmgroup at gmail.com> wrote:
>>>> Has there ever been an instance where someone has made a nuisance of themselves by re-registering and abusing names that they have had suspended under a URS determination?
>>>> 
>>>> 
>>>> 
>>>> 
>>>> 
>>>>> On Mon, Jan 8, 2018 at 3:26 PM, claudio di gangi <ipcdigangi at gmail.com> wrote:
>>>>> George, all,
>>>>> 
>>>>> Thanks for this note.
>>>>> 
>>>>> Just for clarification on the last point, as I understand the current remedies available under the URS does not include cancellation of the domain.
>>>>> 
>>>>> As a result, upon expiry the suspended domain can be renewed and used (including for abusive purposes) by the losing registrant of the URS decision.
>>>>> 
>>>>> To address this issue we can consider adding cancellation as a remedy (or otherwise modifying the URS) to minimize the need for repeated, serial enforcement against previously suspended domains.
>>>>> 
>>>>> Best regards,
>>>>> Claudio
>>>>> 
>>>>>> On Mon, Jan 8, 2018 at 8:09 AM, George Kirikos <icann at leap.com> wrote:
>>>>>> Hi Paul,
>>>>>> 
>>>>>> Thanks for your thoughts. I agree that they are different. Just
>>>>>> pointing out that there are other systems out there that don't have
>>>>>> that role reversal feature.
>>>>>> 
>>>>>> Also, I believe some folks had mused about the possibility of a single
>>>>>> DRP that integrated the URS and UDRP. The issue of creation of a
>>>>>> "Notice of Dispute", that preceded the actual dispute, also has
>>>>>> arisen. If such a system also handled the high number of defaults
>>>>>> differently than today, then one result might be a much lower cost
>>>>>> procedure in the case of defaults (i.e. it could be very lightweight
>>>>>> like the YouTube procedure), and then reference to the courts for the
>>>>>> disputes when both sides show up and are heavily contesting the
>>>>>> matter.
>>>>>> 
>>>>>> In terms of integration, one way to look at the URS is that it's very
>>>>>> similar to a UDRP where the Complainant (TM holder) asks only for
>>>>>> cancellation, albeit that the URS cancellation happens with a delay
>>>>>> (under the UDRP, the cancellation would happen almost immediately,
>>>>>> after allowing for the appeal to the courts)
>>>>>> 
>>>>>> Sincerely,
>>>>>> 
>>>>>> George Kirikos
>>>>>> 416-588-0269
>>>>>> http://www.leap.com/
>>>>>> 
>>>>>> On Mon, Jan 8, 2018 at 6:30 AM, Paul Keating <Paul at law.es> wrote:
>>>>>> > George,
>>>>>> >
>>>>>> > I know that a response has already been posted but I wanted to add my
>>>>>> > quick thoughts.
>>>>>> >
>>>>>> > I agree that the DMCA and the UDRP/URS are not identical.  In fact the
>>>>>> > roles remain reversed throughout the UDRP/URS process.  The DMCA merely
>>>>>> > provides a notice, take-down followed by the opportunity to revive the
>>>>>> > posting.  Once reposting occurs the issue remains as it was before the
>>>>>> > notice - the copyright owner must proceed with litigation.  The UDRP/URS
>>>>>> > however, results in the domain being transferred/suspended or not.  In the
>>>>>> > case of transfer, it is the registrant that must file.  In the case the
>>>>>> > complaint is denied then the trademark owner has that burden (like the
>>>>>> > copyright owner in the DMCA example).
>>>>>> >
>>>>>> > PRK
>>>>>> >
>>>>>> > On 1/6/18, 12:23 AM, "gnso-rpm-wg on behalf of George Kirikos"
>>>>>> > <gnso-rpm-wg-bounces at icann.org on behalf of icann at leap.com> wrote:
>>>>>> >
>>>>>> >>Hi folks,
>>>>>> >>
>>>>>> >>There was an interesting article published today about a copyright
>>>>>> >>dispute involving "white noise" videos on YouTube:
>>>>>> >>
>>>>>> >>https://gizmodo.com/man-s-youtube-video-of-white-noise-hit-with-five-copyr
>>>>>> >>i-1821804093
>>>>>> >>
>>>>>> >>which linked to the dispute procedure that YouTube follows:
>>>>>> >>
>>>>>> >>https://support.google.com/youtube/answer/2797454
>>>>>> >>
>>>>>> >>Going through the various links, it was very interesting that they
>>>>>> >>even have a "Copyright School", see:
>>>>>> >>
>>>>>> >>https://support.google.com/youtube/answer/2814000
>>>>>> >>
>>>>>> >>(expand the "How to resolve a copyright strike" to see the link to
>>>>>> >>it), which is quite interesting, given how often the education aspect
>>>>>> >>for registrants has come up in our PDP's work.
>>>>>> >>
>>>>>> >>Also of interest is the section on "Counter Notification Basics":
>>>>>> >>
>>>>>> >>https://support.google.com/youtube/answer/2807684
>>>>>> >>
>>>>>> >>where importantly it says:
>>>>>> >>
>>>>>> >>"After we process your counter notification by forwarding it to the
>>>>>> >>claimant, the claimant has 10 business days to provide us with
>>>>>> >>evidence that they have initiated a court action to keep the content
>>>>>> >>down."
>>>>>> >>
>>>>>> >>and it's the content creator who posts the relevant jurisdiction:
>>>>>> >>
>>>>>> >>https://support.google.com/youtube/answer/6005919
>>>>>> >>
>>>>>> >>""I consent to the jurisdiction of the Federal District Court for the
>>>>>> >>district in which my address is located, or if my address is outside
>>>>>> >>of the United States, the judicial district in which YouTube is
>>>>>> >>located, and will accept service of process from the claimant."
>>>>>> >>
>>>>>> >>As noted in prior threads, various issues arise under the URS (and
>>>>>> >>UDRP) when the natural role of plaintiffs vs. defendants (had the
>>>>>> >>URS/UDRP not existed) gets reversed (e.g. the Yoyo.email UK "cause of
>>>>>> >>action issue", as well as IGO and other groups' claimed "sovereign
>>>>>> >>immunity").
>>>>>> >>
>>>>>> >>With the dispute resolution procedure followed by YouTube, instead the
>>>>>> >>onus is on the copyright owner (the "claimant") to file the lawsuit,
>>>>>> >>in the same natural way that would exist had that dispute resolution
>>>>>> >>procedure not existed. Thus, none of the issues due to reversal of
>>>>>> >>plaintiff/defendant arise.
>>>>>> >>
>>>>>> >>I thought it would be of interest, especially as it also might also
>>>>>> >>give insights as to how "defaults" are handled.
>>>>>> >>
>>>>>> >>Food for thought.
>>>>>> >>
>>>>>> >>Sincerely,
>>>>>> >>
>>>>>> >>George Kirikos
>>>>>> >>416-588-0269
>>>>>> >>http://www.leap.com/
>>>>>> >>_______________________________________________
>>>>>> >>gnso-rpm-wg mailing list
>>>>>> >>gnso-rpm-wg at icann.org
>>>>>> >>https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>>> >
>>>>>> >
>>>>>> _______________________________________________
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>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>> 
>>>>> 
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>>>> 
>>> 
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