[gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers

Wed Apr 25 19:57:33 UTC 2018

Hi all,

Please find a revised question regarding examiners attached:

In selecting examiners, do you have policies in place that are aimed
at developing a roster which includes a balance of lawyers who focus
on trademark enforcement and those who represent respondents, and
would you say these policies have been effective in generating a
balance of examiners who represent both sides?

Thanks,

Michael Karanicolas

On Wed, Apr 25, 2018 at 1:44 PM, George Kirikos <icann at leap.com> wrote:
> Hi folks,
>
> During today's call, I was asked to propose new wording for some of
> the questions. Using the page numbering of the April 24th redline
> version as the starting point:
>
> 1. page 6, Q11:
>
> Current Version: "Do you believe the deadline for filing Responses is
> long enough? Please provide your rationale. If not, what time period
> would you support, keeping in mind that the URS is supposed to operate
> with rapidity?"
>
> Proposed Language: "Have you received any feedback from respondents
> that the time period to respond to a URS complaint is too low?
>
> [as an aside, conceivably, if all we're looking for is facts/data from
> the provider, rather than their opinion on policy changes, part of
> this might already be captured implicitly through Q3 on page 5;
> although, some respondents might have suffered through a short
> deadline, without asking for an extension]
>
> 2. Page 9, Q12(c):
>
> Current Version: "What is the procedure for assigning examiners? (i.e.
> how large is the pool of examiners, is it randomly assigned; some
> studies suggest a large number of cases are handled by a relatively
> small number of potential examiners)"
>
> Proposed Language:
> "12(c)(i) How large is the pool of URS examiners?
> 12(c)(ii) Are the examiners randomly assigned, rotated, or assigned
> using some other procedure (please specify)?"
>
> [aside: 12(c)(ii) seems to have already been responded to partially,
> based on the earlier wording of the question]
>
> 3. Page 13, Q10:
>
> Current Version: "Does the Provider have clerks or other staff that
> 'ghost-write' decisions for Examiners, before the Examiner has made a
> Determination independently, that the Examiner can simply sign their
> name to if they agree with it?"
>
> Proposed Language: [trying to be as diplomatic as I can -- my company
> does own Diplomacy.com! :-)  ]
> "To what extent does the Provider supply Examiners with information,
> analysis or research concerning a Complaint or Response that is not to
> be found within the Complaint or Response itself? Does the Provider
> provide drafts or exemplars to the Examiners?"
>
> [aside: the "drafts" and "exemplars" language came from Rebecca's
> suggestion in the WebEx chat today; I hope I used it appropriately,
> although I'm welcome to friendly amendments;  you'll recall that the
> "ghost-writing" term came from Paul Keating's comment to the article
> at:
>
> http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
>
> "In the case of NAF they are (with reason) suspected of having inside
> clerks ghost-write opinions for delivery to the panelists." (excerpt;
> full quote has been posted before on this list)
>
> As I noted in the Webex chatroom and orally today, there had been
> instances in the past where the same gibberish/nonsense appeared
> verbatim across multiple decisions (in the UDRP) from different
> panelists
>
> http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udrp_decisions/
>
> That article had a comment from Brett Lewis that stated (I'll quote it
> in it's entirety, to not take things out of context):
>
> "NAF decisions are drafted by in-house staffers who present the drafts
> to Panelists.  If the Panelists agree with the staffer's decision,
> they can simply adopt the decision as their own.  If the Panelists
> disagree, the Panelists have to draft a new decision.  There is
> certainly an incentive to go along with the staff draft, but let's
> give panelists a little more credit.  Most panelists that is.
>
> Staffers undoubtedly cut and paste, as all lawyers do — especially
> when working for so little money.  The real issue is whether the
> cutting and pasting is a sign of something more sinister — bias.
> Justice by factory because the trademark holder is always right.
>
> It seems that a number of the cut and paste jobs here actually went in
> favor of the Respondents.  I'd need to see more before I could say
> this is bias and not just sloppiness.  Also, what was being cut and
> pasted makes a big difference.  The UDRP system is far from perfect,
> and certain panelists are doing more of a hatchet job than they should
> be, but when they are getting paid a nominal amount to review papers
> and draft a decision, some degree of recycling is likely to happen.
> Still, it wouldn't kill NAF to review the decisions before they're
> published. "
>
> Later on, in response to my question whether WIPO does the same, he
> wrote (with the title of "Sausage Factory"):
>
> "I don't believe that WIPO does it.
>
> I'm not sure exactly how NAF does it, but they used to have staff
> members draft the decisions first, then submit them to the Panelists.
> The Panelists could adopt, modify, or reject the draft decisions.  I'm
> not sure if they do that when there's a three-member Panel, since
> contested matters are generally more complex and more difficult to
> decide."
>
> and later:
>
> "Judges often rely on law clerks to assist them to draft decisions.
> The idea may not be all that different.  The only issue would be
> whether panelists are abdicating their responsibility to be impartial
> fact finders in lieu of just signing onto a draft decision.  I don't
> believe that most panelists would do that, but for some, it might
> happen — especially if they have a particular view of respondents that
> fits the draft."
>
> So, I hope the above helps members of this PDP understand that this
> issue isn't "coming out nowhere".]
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
> On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <icann at leap.com> wrote:
>> Thanks for the updated document, and for reflecting many of the
>> comments I had previously submitted:
>>
>> https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002890.html
>>
>> Some additional thoughts:
>>
>> A] On page 13 of the redline document, Q10 (with regards to the
>> "ghost-writing"), the question was not intended to be "incendiary", as
>> per Justine Chew's comment. The issue had been brought up in the past
>> by Paul Keating (a member of this PDP), in a comment to an article in
>> 2010 on CircleID:
>>
>> http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
>>
>> See his comment (#2) on that page, which I'll reproduce in full:
>>
>> "Jeff, Here are a few of the things that worry me about all of this:
>>
>> 1.  No ADR provider is under contract with ICANN.  There is thus
>> absolutely no accountability.  Given NAF's history with the
>> authorities in connection with their having fixed the credit card
>> arbitration process, one wonders why this situation remains.
>>
>> 2.  Concerning statistics (mostly about NAF) have come out regarding
>> repetative appointments of a select few panelists.
>>
>> 3.  On prior occasions I have asked for corrections in NAF decisions
>> and have been told that it was not possible, that they would not
>> request panelists to do so, and they objected to any attempt on my
>> part to raise the issue directly with the panelists - even if copying
>> the other side in any correspondence.
>>
>> 4.  I can understand the desire not to have matters continued post
>> decision - such would be contrary to the spirit of the UDRP.  However,
>> to undertake a change to decisions without publication and an audit
>> function is simply unheard of.  In the US as you know, when a court
>> alters an opinion it publishes notices of the modification and it is
>> the judges who are doing the modification.  Here there is no
>> indication at all that any panelist made the request and no public
>> record keeping of the change.
>>
>> Overall, the ADR providers are a law unto themselves.  There is no
>> appeal and no accountability.  WHile 4(k) allows a post-UDRP legal
>> action, no care was taken when writing the UDRP to investigate whether
>> a proper cause of action exists for such a proceeding in the "Mutual
>> Jurisdiction".  There are no standards for panelists (one is a traffic
>> judge with no IP experience at all).  Appointments are not
>> statistically random.  They create their own supplemental rules.  They
>> actively and selectively promote lines of decisions (e.g. WIPO's Panel
>> Guidelines).  In the case of NAF they are (with reason) suspected of
>> having inside clerks ghost-write opinions for delivery to the
>> panelists.  Now this.  We are in a race to the bottom here.  While
>> overall I would say that the vast majority of decisions are correctly
>> decided, it is worrying that registrants are forced by contract to
>> participate in such a system.  The proper test for a judicial system
>> is not whether it gets it right in the easy cases but rather it has
>> adequate protections to ensure that the difficult ones are treated
>> properly. "
>>
>> Given that, I thought it appropriate to ask that particular question,
>> so that the providers can let us know whether that ghost-writing is
>> actually happening or not. Frankly, I found it disturbing that it
>> might be happening when I first learned of that possibility back in
>> 2010, and if it's happening, then the rules need to be strengthened.
>>
>> B] With regards to the "Effect of Court Proceedings" question (page 15
>> of the redline document), we know that WIPO is aware of court
>> proceedings after UDRPs (see:
>> http://www.wipo.int/amc/en/domains/challenged/ , although they've
>> failed to update that regularly, despite new cases being brought to
>> their attention). Perhaps something similar exists for the URS. If the
>> providers aren't aware of it (and you'd think they would be, given
>> their "suspension' nameservers would be changed by the registry
>> operator to reflect a court proceeding), then the registry operators
>> should be asked (since they'd probably be ordered to change the
>> nameservers back).
>>
>> C]. With regards to the final question on page 16 (running on to page
>> 17), Sub Teams shouldn't be making "conclusions" on anything
>> (decisions are made by the entire membership, not subteams). As to the
>> merits/scope of that question, it's not been all rainbows and unicorns
>> at NAF. I think it's important to know whether they've actually
>> learned from their past, and adopted changes to reflect the concerns
>> in those serious legal matters. If they haven't, that it's just been
>> "business as usual" for the domain-related cases (after no longer
>> doing consumer credit disputes), then that has policy implications. If
>> we as a PDP simply go with the answers already submitted, that's fine
>> with me, but I was bending over backwards to give them a chance to
>> improve their answers.
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <ariel.liang at icann.org> wrote:
>>> Hello everyone,
>>>
>>>
>>>
>>> In preparation for tomorrow’s WG call, please be so kind to find attached
>>> the redline document of the proposed questions to URS Providers. The
>>> document includes comments/suggestions from WG members, and the
>>> input/feedback to these comments/suggestions from the Providers Sub Team
>>> (received by the deadline at 12:00 UTC on Tuesday, 24 April).
>>>
>>>
>>>
>>> Please be so kind to review this redline document prior to the call tomorrow
>>> (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have commented
>>> and provided input!
>>>
>>>
>>>
>>> Best Regards,
>>>
>>> Mary, Julie, Ariel, and Berry
>>>
>>>
>>>
>>>
>>>
>>> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Julie Hedlund
>>> <julie.hedlund at icann.org>
>>> Date: Friday, April 20, 2018 at 2:43 PM
>>> To: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
>>> Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25
>>> April 2018 at 1200 UTC
>>>
>>>
>>>
>>> Dear RPM PDP WG members,
>>>
>>>
>>>
>>> Per the WG Co-Chairs, here is the proposed agenda for the Working Group call
>>> Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time –
>>> calendar invite will be sent via separate email):
>>>
>>>
>>>
>>> Proposed Agenda:
>>>
>>> Roll call and updates to Statements of Interest
>>> Status of Questions for Practitioners
>>> Finalize Questions for Providers
>>> Notice of agenda for 02 May meeting
>>>
>>>
>>>
>>> Best regards,
>>>
>>> Mary, Julie, Ariel and Berry
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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