[gnso-rpm-wg] [Ext] Re: REMINDER re: Nominations for RPM Working Group Co-Chair

Mon Apr 30 05:39:08 UTC 2018

George,

On Sun, Apr 29, 2018 at 5:17 PM, George Kirikos <icann at leap.com> wrote:

> Hi Greg,
>
> The WIPO website refers to "orders and decisions", and makes no
> distinction (the one you want to invent) to bar consent orders or
> consent decisions from their list.

The title of the page is "Select UDRP-related Court Cases."  "Cases" are
generally understood to be decisions (i.e,. judicial opinions).  See, e.g.,
https://en.wikipedia.org/wiki/Legal_case ("A legal case is a dispute
between opposing parties resolved by a court, or by some equivalent legal
process.")

When law schools teach by the "case method" and use "casebooks" they are
using judicial opinions. See
https://www.princetonreview.com/law-school-advice/case-method  Rather than
"inventing" things, I am offering interpretations based on my knowledge and
experience (32 years of practicing law, after graduating Columbia Law
School, where I was a Harlan Fiske Stone Scholar and Editor-in-Chief of a
law journal).  You are offering a different interpretation. I'm comfortable
with mine.  Others can decide which interpretation they prefer.

As for "inventing" stuff -- there's no such thing as a "consent decision"
(at least not in US law or any law I'm familiar with).  Not only is that
your invention, that would be an oxymoron -- a decision is a final opinion
by the court, so consent cannot be part of it.

There are three "orders" on the page; 2 are default judgments, which do
count as judicial opinions.  The third is the Law Society order.

> As noted earlier, WIPO did not
> hesitate to already include one (for lawsociety.com) in its
> collection, a long-established precedent that is demonstrable proof in
> how they view their own list:
>
> http://www.wipo.int/amc/en/domains/challenged/

You can call this a "long-established precedent that is demonstrable
proof in how they view their own list."  To me, it looks like an anomaly
that proves nothing.  There's certainly no way to deduce intent from this
posting.  More than likely it was a mistake, not something intended to be
"precedent.".  Given that they've never posted another settlement in spite
of being informed of them *repeatedly* (although I bet all from the same
source...), I'd say that *not* listing those settlements better
demonstrates how they view the list.  But why speculate?  Let's ask Brian
Beckham to tell us how WIPO views the list.

> You claim "WIPO is offering case law", yet where's the "case law" in
> the lawsociety.com court order? :-)

Nowhere, unlike every other item on the page, which is why it is an
anomaly that probably shouldn't be there.

> The phrase "case law" doesn't
> appear on that page, either, another invention by yourself as to what
> that list is supposed to represent.
>

See above. "Case law" means "law established by judicial decision in
cases."  This is, with one exception, a list of cases that are judicial
opinions, establishing case law.  I believe I'm making a very reasonable
inference regarding the list -- that a list of "Court Cases" is intended to
be a list of case law.

>
> Indeed, while you claim these are "meaningless", they certainly mean
> something to the *registrar*. Remember, the registrar would have kept
> the domain in limbo, awaiting the outcome of the court case (which in
> some cases challenged an adverse UDRP for the registrant, which would
> have meant a transfer of the domain to the TM holder), without these
> orders to the contrary. The consent order certainly carries the same
> weight to them as any other court order.
>

This is consistent with the case being meaningless beyond the parties
involved.  Although I thought I was clear enough, I was referring to the
value of the case beyond those involved in it. The registrar may not be a
party, but they are clearly involved, as the entity holding the asset in
question.

>
> Indeed, there have been occasions where judges *refuse* a proposed
> consent order or proposed settlement by parties. (search Google for
> "judge rejects settlement" without the quotes) The judges don't just
> blindly rubber stamp them.
>

I'm well aware of that, but these are edge cases, compared to the huge
volume of settlements that are approved (or don't even get reviewed by a
judge).  A rejection happens when the court sees a settlement that doesn't
serve justice or seems fundamentally unfair.  As long as the settlement
seems reasonable, the courts do essentially rubberstamp them (I never said
they did it blindly...).

>
> If the parties wanted to, the complainant could have simply withdrawn
> the case, without any order. But, no....these orders went further then
> that and memorialized various things (e.g. the money owed, where the
> domain name should end up, etc.) within the court order.
>

These things would all be memorialized by the parties in a Settlement
Agreement between the parties, whether or not there was an order.  Clearly,
in these cases the parties didn't want to simply withdraw the case.  One or
both parties wanted the order.  Typically, courts issue orders for
settlements because the litigants have asked them to.  As noted previously,
this can make it easier to enforce the settlement if one party fails to
comply.  If the settlement is completely "out of court", the party seeking
to enforce would generally need to bring an entirely new action.   The fact
that the settlement is subject to an order, does not change the fact that
it is the parties that are memorializing these things, then providing the
order to the judge. (I'm not inventing this; this is how it works, in my
experience. Though judges will rewrite orders they don't quite like, the
order is produced by the parties.)

>
> As for where things "originate", recall lobster "was considered a mark
> of poverty or as a food for indentured servants"
>
> https://en.wikipedia.org/wiki/Lobster#History
>
> yet now is treated somewhat differently. "Boom goes the dynamite" may
> have had dubious origins, but the phrase was used correctly in the
> prior email, as it has caught on and since become a popular way to
> indicate a "pivotal moment":
>
> https://en.wikipedia.org/wiki/Boom_goes_the_dynamite

Clearly, you think there was a "pivotal moment" in your email.  In my
view, it was closer to the original circumstance in which "Boom goes the
dynamite" was used.  You are entitled to your own opinion, of course.

>
>
> While you might look down upon and snicker at things that have humble
> origins, others do not.
>

Not sure where this came from.  I certainly didn't say anything remotely
like that, nor can I see anything I wrote that could be interpreted that
way.  But clearly, I do not see the world through your eyes....

Best regards,

Greg

>
> / <http://www.leap.com/>
>
>
> On Sun, Apr 29, 2018 at 3:30 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
> > George,
> >
> > A “clown car” is still a car and a crushed car is still a car, but
> neither
> > will get you where you want to go.  In a narrow semantic sense, you are
> > correct, up to a point; the word “order”’appears on the document. But in
> a
> > substantive way, you are still incorrect.  A settlement is not a decided
> > case, no matter how it’s labeled.  A settlement that is “ordered” by a
> judge
> > has no more value than a settlement that is handled out of court, except
> > between the parties (if the parties settlement is recorded with the
> court,
> > it is generally easier to come back to the court to enforce the
> settlement).
> > For the rest of the world, these are meaningless in terms of
> understanding
> > how the court viewed this case. These are not “judicial outcomes”; the
> judge
> > had nothing to do with it.
> >
> > There is certainly nothing in the settlement documents that would support
> > the assertion that the “UDRP decisions are likely highly deficient.”  It
> > would be misleading to leave people with that impression.
> >
> > Whether a settlement is “of interest” is irrelevant. WIPO is offering
> case
> > law, not a list of all court activity.  One swallow does not make a
> spring,
> > and one settlement listing does not make “long-established precedent.”
> (Nice
> > try, though.) Why WIPO listed one settlement among the cases, I don’t
> know;
> > but it proves nothing about the intended scope of the list.  It certainly
> > doesn’t prove that everything i’ve said is wrong.  Indeed, it doesn’t
> prove
> > that anything I’ve said is wrong. In any event, this settlement is not
> case
> > law, and it would not be appropriate to call it a case (except in a world
> > where a clown car is still a car).
> >
> > It’s amusing that the one settlement that’s listed is one that was
> favorable
> > to the Complainant, although the litigation was commenced by Respondent
> > (i.e., the Complainant got the domain in the settlement).    So, while it
> > shouldn’t be on the list, it is “interesting.”  (And no, listing this
> > settlement is not credible evidence of WIPO bias and conspiracy against
> > respondents....)
> >
> > As for Moobitalk, I did not “concede”; I agreed. I had expressed no prior
> > opinion on the subject. But if calling it a concession makes you feel
> like
> > you won something, I wouldn’t want to take that away....
> >
> > I’ll stop to note that “Boom goes the dynamite” originated in possibly
> the
> > worst and most embarrassing college TV
> > station sports newscast in history. One mistake followed another, but the
> > beleaguered student broadcaster was able to finally use his signature
> call
> > of “Boom goes the dynamite.”  The segment was so exceptionally,
> hilariously
> > bad it went viral, and a meme was born.  So, yeah, that is probably the
> > right “sound effect” for your email.
> >
> > Best regards,
> >
> > Greg
> >
> > On Fri, Apr 27, 2018 at 7:49 AM George Kirikos <icann at leap.com> wrote:
> >>
> >> Greg:
> >>
> >> A "consent order" is still an order (just like a "red car" is still a
> >> car), and a "consent judgment" is still a judgment even if it's the
> >> result of a settlement. Most cases are settled.  When a TM holder wins
> >> a UDRP complaint, but then is challenged in court, the outcome of that
> >> challenge is certainly of interest. Take a look at the outcomes here:
> >>
> >> 1. Soundstop.com -- Domain Asset Holdings (domain owner) kept the domain
> >>
> >> 2. AustinPain.com -- "Judgment and Permanent Injunction" -- domain
> >> owner keeps the domain, and also gets $25,000 - "the NAF Order in the
> >> UDRP proceeding is hereby set aside"
> >>
> >> 3. SDT.com -- Telepathy (domain owner) keeps the domain, and gets
> >> $50,000 paid to it by the initiator of the UDRP; "Consent Judgment and
> >> Permanent Injunction"; "Accordingly, it is hereby Ordered and
> >> Adjudged"
> >>
> >> 4. Moobitalk.com - you concede
> >>
> >> Folks would be misled by simply having the UDRP decisions appear at
> >> NAF/WIPO, making it seems as if they're the final outcome, the final
> >> word, when they're not. By knowing these cases exist, others can go to
> >> the actual pleadings, and learn something (in particular, that the
> >> UDRP decisions which were rendered are likely highly deficient, given
> >> the judicial outcomes).
> >>
> >> Furthermore, WIPO has *already* listed a case, the one for
> LawSociety.com:
> >>
> >> S.H., Inc. v. The Law Society, Case No. CV10-0248MJP, United States
> >> District Court for the Western District of Washington, July 19, 2010
> >>
> >> http://www.wipo.int/export/sites/www/amc/en/docs/
> courtorderd2009-1520.pdf
> >>
> >> which was *also* the result of a settlement (a consent order) [boom
> >> goes the dynamite -- I really need sound effects for these emails!].
> >> That precedent further reinforces that everything you said is wrong
> >> --- to be consistent with their long-established precedent, they
> >> should be adding all the cases.
> >>
> >> Nice try, though. :-)
> >>
> >> Q.E.D.
> >>
> >> George Kirikos
> >> 416-588-0269
> >> http://www.leap.com/
> >>
> >>
> >> On Fri, Apr 27, 2018 at 1:04 AM, Greg Shatan <gregshatanipc at gmail.com>
> >> wrote:
> >> > Soundstop, Austin Pain and SDT are all settlements.  The WIPO page is
> >> > entitled "Select UDRP-related Court Cases," which they specify as
> >> > "orders
> >> > and decisions." As settlements, they really are neither court orders
> or
> >> > decisions.  The court just rubber-stamped the private agreement of the
> >> > parties.  There's nothing wrong with that, but there's no judicial
> value
> >> > in
> >> > these actions.  They provide nothing a third party could rely on, set
> no
> >> > precedent, apply no law and make no law.
> >> >
> >> > These are not "successful challenges" in the sense that a court
> actually
> >> > considered the merits of the case and rendered a decision.  They may
> be
> >> > favorable settlements to the respondents, but they do not represent
> >> > success
> >> > in court in the way that a "case" does.  (In law school, when students
> >> > are
> >> > "reading cases" in law school, they are reading decisions; when a
> lawyer
> >> > says she has a "case on this point," she is referring to a decision.)
> A
> >> > s
> >> > such I wouldn't consider these "cases" at all for this purpose.
> >> >
> >> > Also none of these are relevant to "the other side of the coin, abuse
> of
> >> > the
> >> > process, reverse domain name hijacking, and the court cases that are
> >> > required to achieve justice."  Hopefully, nobody who read this thread
> >> > actually thought that these (non)cases represented any of those
> things,
> >> > or
> >> > thought that WIPO was biased and engaging in a cover-up by "failing"
> to
> >> > post
> >> > these settlements.  (This seemed to be the undercurrent of the
> argument,
> >> > but
> >> > perhaps I'm reading too much into it.)
> >> >
> >> > In other words, WIPO did the right thing with regard to Soundstop,
> >> > Austin
> >> > Pain and SDT.
> >> >
> >> > Moobitalk is different -- it is an actual court decision (indeed, two
> >> > court
> >> > decisions), which I think would be of some interest to those looking
> for
> >> > court decisions reflecting the outcome of judicial challenges to UDRP
> >> > cases.
> >> > In this instance, I would join George in requesting (respectfully, in
> my
> >> > case) that WIPO post the decisions in this case on the "Select
> >> > UDRP-related
> >> > Court Cases" page.
> >> >
> >> > Again I should note that Moobitalk doesn't appear to demonstrate "the
> >> > other
> >> > side of the coin, abuse of the process, reverse domain name hijacking,
> >> > and
> >> > the court cases that are required to achieve justice," and also note
> >> > that
> >> > none of this is relevant to Brian's fitness or appropriateness to
> serve
> >> > as
> >> > Co-Chair of this WG.  For that purpose, this is a "frolic and detour."
> >> >
> >> > Greg
> >> >
> >> >
> >> >
> >> > On Tue, Apr 24, 2018 at 3:30 PM, claudio di gangi <
> ipcdigangi at gmail.com>
> >> > wrote:
> >> >>
> >> >> George, all,
> >> >>
> >> >> Personally, I don't believe WIPO is doing anything wrong by not
> >> >> publishing
> >> >> your specific list of post-UDRP cases, which is not a requirement for
> >> >> Providers. From my perspective, it looks like they have posted some
> of
> >> >> these
> >> >> cases as a nice gesture to the community.
> >> >>
> >> >> The webpage on which these cases are published clearly states these
> are
> >> >> "select" cases and there is no intent to create a comprehensive,
> >> >> updated
> >> >> running list of all post-UDPR actions.
> >> >>
> >> >> Moreover, in taking a quick glance at some of the cases you
> >> >> highlighted:
> >> >>
> >> >> <Soundstop.com> - the court case settled; it doesn't appear the court
> >> >> issued a holding that is generally applicable to other UDRP
> >> >> proceedings.
> >> >>
> >> >> <sdt.com> - it looks like the UDRP panel terminated the proceeding
> to
> >> >> let
> >> >> the court case run its course.
> >> >>
> >> >> <Moobitalk.com> -   the decision of the appeals court was based on a
> >> >> legal
> >> >> principle (territoriality) that is not a required element under the
> >> >> UDRP.
> >> >> This seems to be a relatively unique case and publishing this
> decision
> >> >> may
> >> >> confuse some readers in terms of the general applicability of UDRP
> >> >> jurisprudence.
> >> >>
> >> >> ---
> >> >>
> >> >> In terms of Brian's nomination, I am very grateful that he is willing
> >> >> to
> >> >> serve and dedicate the time needed to take on this role.  As
> mentioned
> >> >> by
> >> >> Zak and other's, I believe he is preeminently qualified and has the
> >> >> natural
> >> >> leadership skills that will greatly benefit our team.
> >> >>
> >> >> Hope this helps.
> >> >>
> >> >> Best regards,
> >> >> Claudio
> >> >>
> >> >>
> >> >>
> >> >> On Tue, Apr 24, 2018 at 12:47 PM, George Kirikos <icann at leap.com>
> >> >> wrote:
> >> >>>
> >> >>> With regards to Brian Beckham of WIPO being one of the co-chairs,
> I'm
> >> >>> relatively indifferent, as long as the co-chairs comply with the
> >> >>> working group guidelines which place constraints on their behaviour
> >> >>> (i.e. neutrality, not pushing their own agenda, etc.). It's meant to
> >> >>> be an administrative/clerical task, essentially.
> >> >>>
> >> >>> I think Brian would go a long way towards demonstrating his
> commitment
> >> >>> towards that required neutrality if he would get WIPO to update
> their
> >> >>> "Court Challenged Cases" page at:
> >> >>>
> >> >>> http://www.wipo.int/amc/en/domains/challenged/
> >> >>>
> >> >>> with cases that have been **repeatedly** brought to their attention
> in
> >> >>> the past, including:
> >> >>>
> >> >>> 1. Soundstop.com --
> >> >>>
> >> >>>
> >> >>> http://domainnamewire.com/2016/07/21/mike-mann-
> overturns-udrp-decision-court/
> >> >>> https://domainnamewire.com/wp-content/soundstop-1.pdf
> >> >>>
> >> >>> 2. AustinPain.com --
> >> >>>
> >> >>>
> >> >>> http://ia601008.us.archive.org/18/items/gov.uscourts.cod.
> 147273/gov.uscourts.cod.147273.23.0.pdf
> >> >>>
> >> >>> 3. SDT.com --
> >> >>>
> >> >>>
> >> >>> http://domainnamewire.com/2015/07/22/50000-penalty-for-
> filing-a-frivolous-udrp/
> >> >>> https://domainnamewire.com/wp-content/SDT-settlement1.pdf
> >> >>>
> >> >>> 4. Moobitalk.com --
> >> >>>
> >> >>>
> >> >>> http://www.lexology.com/library/detail.aspx?g=
> 5899d5f9-3bbc-416e-a9a5-7233a147b62c
> >> >>>
> >> >>>
> >> >>> https://www.legalis.net/jurisprudences/cour-dappel-de-
> paris-pole-5-ch-1-arret-du-8-novembre-2016/
> >> >>> (actual decision)
> >> >>>
> >> >>> It looks bad on WIPO's part that all of these successful challenges
> >> >>> are not being reflected on that page. WIPO is quick to assert
> "record
> >> >>> cybersquatting" exists, yet they fail to mention the other side of
> the
> >> >>> coin, abuse of the process, reverse domain name hijacking, and the
> >> >>> court cases that are required to achieve justice. If Brian would get
> >> >>> that page updated before an election, that would be wonderful.
> >> >>>
> >> >>> 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
> >> >>
> >> >>
> >> >>
> >> >> _______________________________________________
> >> >> gnso-rpm-wg mailing list
> >> >> gnso-rpm-wg at icann.org
> >> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
> >> >
> >> >
> _______________________________________________
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