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

Mon Apr 30 11:42:37 UTC 2018

Hi Greg,

The Wikipedia link supports my argument, not yours. First, WIPO
doesn't use the term "legal case". The Wikipedia page says:

"At any point during the case, the parties can agree to a settlement,
which will end the case, although in some circumstances, such as in
class actions, a settlement requires court approval in order to be
binding."

i.e. it's a case at **all times**, from the moment it is started, to
the moment it ends. Even WIPO agrees, because their own page says:

"Court cases that are pending or for which no order/decision is
available are not published on this list."

i.e. their own implicit definition of a "court case" *includes cases*
that are pending (but then they won't publish them until there is an
order/decision.

Your argument was lost when the lawsociety.com case was posted a
couple of emails ago. Learn to cut your losses. :-) Writing off
evidence that proves you're wrong as just 'an anomaly' doesn't work.

What's amusing is that you're kind of painting yourself into a corner
--- because if we were to pivot and ask "Where are all the examples of
cybersquatting that require RPMs such as the UDRP/URS/TMCH, etc?" some
folks would point to the most expansive non-judicial examples and
claim "This is cybersquatting" (some have great imaginations, and
claim enormous damage from all that cybersquatting), even though there
are actually very few cybersquatting cases that make it through the
courts to an reasoned verdict. If we were to follow your overly narrow
interpretations in the email exchanges of the past few days, we should
set a very narrow definition of cybersquatting, to be consistent, i.e.
only cite those cases where a judge declares that it is cybersquatting
with a reasoned order (and not via a consent order/settlement, either)
as examples of "cybersquatting."

Quick test, Greg: was the Verizon iREIT case an example of
cybersquatting, that justifies RPMs? Remember, nothing was ever proven
in court (as it was settled).

I say it *was* clear-cut cybersquatting, but for you to be consistent,
you'd have to say "No, that wasn't cybersquatting, George."

Should you answer "No", then I really wonder why we need the
UDRP/URS/TMCH, since there'd be very little evidence of actual
cybersquatting (evidence via reasoned verdicts of the courts, by that
narrowest definition of "evidence").

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Mon, Apr 30, 2018 at 1:39 AM, Greg Shatan <gregshatanipc at gmail.com> wrote:
> 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
>
>
>>
>>
>> /
>>
>>
>> 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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>
>