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

Paul Keating Paul at law.es
Thu Apr 26 10:54:37 UTC 2018 

Brian,

I do not honestly see any inconsistency between the question and the
standards you noted in your email.  If you do can you perhaps explain your
position further?

I have submitted substantially similar questions which include an inquiry as
to how the panelists are actually selected but the ADR provider.  I know
this is close to home for you given your position with WIPO.  However, I ask
that you try to put that aside so that the inquiries can be made.

Thanks

Paul

From:  gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of "BECKHAM,
Brian" <brian.beckham at wipo.int>
Date:  Thursday, April 26, 2018 at 12:22 PM
To:  Michael Karanicolas <mkaranicolas at gmail.com>, "gnso-rpm-wg at icann.org"
<gnso-rpm-wg at icann.org>
Subject:  Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS
Providers

> Michael,
>  
> The Rules, and URS, respectively provide that examiners should be (a)
> ³impartial and independent² and (b) ³should have demonstrable relevant legal
> background, such as in trademark law².
>  
> 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/
>> <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
>> <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/ <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
>>> <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
>>> <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/
>>> <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/ <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 tomorrow¹s 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
>>>> <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
>> > _______________________________________________
>> > 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
>> <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
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