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

Thu Apr 26 10:22:10 UTC 2018

Michael,

The Rules, and URS, respectively provide that examiners should be (a) “impartial and independent” and (b) “should have demonstrable relevant legal background, such as in trademark law”.

Perhaps it would make more sense to reframe your question by reference to those previously-agreed provisions?

Brian

-----Original Message-----
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Michael Karanicolas
Sent: Wednesday, April 25, 2018 9:58 PM
To: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers

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<mailto: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_in

> to_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<mailto: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<mailto: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<mailto:gnso-rpm-wg-bounces at icann.org>> on behalf of Julie

>>> Hedlund <julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>>

>>> Date: Friday, April 20, 2018 at 2:43 PM

>>> To: "gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>" <gnso-rpm-wg at icann.org<mailto: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<mailto:gnso-rpm-wg at icann.org>

>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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