[gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018

Paul Keating Paul at law.es
Tue Feb 6 15:05:42 UTC 2018 

While I also have some concerns about the ³re-litigating² issue, there is no
need to do so.  We are only trying to determine at a relatively high level
if the correct standard appears to be applied consistently.  I feel a review
is appropriate.  However any review must be of a statistical meaningful
sample.  I don¹t believe that focussing only on appeals is an appropriate
sample from which to make determinations regarding the entire pool of URS
cases.  Appeals happen because of many things which may or may not be
related to the standard having been correctly applied (e.g. Domain value,
low  cost of appeal, personal vendettas, etc).

And, I believe that the review should be undertaken with a request for the
underlying complaint and response (if any).  These documents are needed so
as to ensure that the orders do in fact correctly apply the standard to the
actual evidence submitted.  Obviously we need to provide appropriate
protection for the documents at issue with gated access to a limited group
who will retain the documents in confidence.

Paul

From:  gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of "BECKHAM,
Brian" <brian.beckham at wipo.int>
Date:  Tuesday, February 6, 2018 at 3:18 PM
To:  "Tushnet, Rebecca" <rtushnet at law.harvard.edu>, Julie Bisland
<julie.bisland at icann.org>, "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
Cc:  "gnso-secs at icann.org" <gnso-secs at icann.org>
Subject:  Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of
all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday,
01 February 2018

> Thanks Rebecca, 
>  
> On this perhaps somewhat semantic point, I tend to agree, and I could be wrong
> but I think what is actually meant is a ³substantive² review (which as was
> noted by several people on the call, risks re-litigating cases without the
> benefit of the pleadings ­ and drawing policy implications therefrom).  Below
> I was merely quoting from the transcript.
>  
> In terms of the appeals/lack thereof, with respect, I think it is pretty well
> articulated below (³to see if registrants themselves believe the standard is
> being misapplied²).
>  
> Another perhaps more colloquial way of putting it would be to say, if there
> are misgivings about the standard being applied in the URS ­ and to your point
> about drawing policy inferences form the rate of default, and especially when
> it literally costs nothing* to respond ­ are people putting their money where
> their mouth is, so to speak?
>  
> * Except in consolidated cases against 15 or more domain names, which I think
> may not yet have even occurred.
>  
> The point was that we are in somewhat of a chicken-and-egg scenario, so my
> suggestion was merely intended to propose a more rational and focused first
> pass to review select cases, if indeed it is even the collective consensus of
> the WG to do so (which so far seems far from clear).
>  
> If a first pass at such a narrower dataset reveals it would be beneficial to
> expand the effort, the WG could take it from there.
>  
> Best regards,
>  
> Brian 
>  
> 
> From: Tushnet, Rebecca [mailto:rtushnet at law.harvard.edu]
> Sent: Tuesday, February 06, 2018 2:26 PM
> To: BECKHAM, Brian; Julie Bisland; gnso-rpm-wg at icann.org
> Cc: gnso-secs at icann.org
> Subject: Re: Recordings, Attendance, & AC Chat for Review of all Rights
> Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February
> 2018
>  
> 
> I'd like to reiterate to the mailing list that "subjective" is often being
> used in an undefined and I think unjustified way.  As was pointed out on the
> call, there are plenty of qualitative inquiries on which we can expect
> agreement and which shouldn't be deemed "subjective" by any standard: did the
> panelist identify the domain name at issue?  Did the panelist identify the
> abusive use?  Aggregated, these individual observations provide valuable
> information about the transparency and functioning of the process as a whole.
> 
>  
> 
> In general, many in this group don't trust the average registrant involved in
> a dispute, so it's not clear to me why their appeals, or lack thereof, would
> guide whether we think the process is working.  Especially when there are a
> lot of defaults, the appeal rate doesn't indicate much--similar to debt
> collection against poor people in the US, where there are lots of defaults but
> when individual claims are examined they often don't hold up.  I expect that
> the rate of valid claims in the URS is much higher than the rate of valid
> claims in US debt collection cases, but that's just an expectation in advance
> of a lot of data.  Relatedly, the appealed cases are ones where the process is
> most likely to work as intended, because the parties join the issues.  But
> again, that's an expectation, and should be examined.
> 
>  
> 
>  
> Rebecca Tushnet
> 
> Frank Stanton Professor of First Amendment Law, Harvard Law School
> 703 593 6759 
> 
> 
> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of BECKHAM, Brian
> <brian.beckham at wipo.int>
> Sent: Tuesday, February 6, 2018 6:04:27 AM
> To: Julie Bisland; gnso-rpm-wg at icann.org
> Cc: gnso-secs at icann.org
> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all
> Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01
> February 2018
> 
>  
> 
> Thanks Terri, Julie,
> 
>  
> 
> Having listened to the call recording, it is plain to see there is strong (and
> well-reasoned) disagreement on whether to proceed with a ³subjective and
> qualitative review² of URS decisions with respect to the standard of evidence.
> 
>  
> 
> Given this, and perhaps as a start, we can look to see the number of cases
> which have been appealed -- whether on the merits or following a default -- to
> see if registrants themselves believe the standard is being misapplied.  A
> statistically low number of appeals would suggest the answer may be ³no².
> 
>  
> 
> If on the other hand, there is a significant instance of appeals, that may
> merit the type of ³review² proposed by some WG members.  For that event,
> perhaps the WG should already agree to avoid an approach that would risk
> re-litigating the decisions themselves;  instead, the WG could agree to only
> review select URS decisions with a view to possible ³improvements² going
> forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions
> should contain some minimal reasoning/elements).
> 
>  
> 
> Brian 
> 
>  
> 
> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Julie
> Bisland
> Sent: Thursday, February 01, 2018 2:24 PM
> To: gnso-rpm-wg at icann.org
> Cc: gnso-secs at icann.org
> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all
> Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01
> February 2018
> 
>  
> 
> Dear all,
> 
>  
> 
> Please find the attendance and AC Chat transcript of the call attached to this
> email. The MP3 and Adobe Connect recording are below for the Review of all
> Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01
> February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on
> agenda wiki page:  https://community.icann.org/x/uAxyB
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_uA
> xyB&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c
> 4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=B6_xLKTzbSMugFS24znCh5-A
> OPHfaylATml5PH6QU2Q&e=>
> 
> MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__audio.icann.org_gnso_gns
> o-2Drpm-2Dreview-2D01feb18-2Den.mp3&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQ
> vQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQC
> CLKIA&s=a5MR5HKPZXxEzSYhPVLgBP-z5u9CfwX-FYF4NAYkUmE&e=>
> Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__participate.icann.org_p6
> mww2tis6b_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I
> -0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=RJs2bS_ca1WJo0SpJ
> IVmki2x7PKi3Vys_oqa-pAwDgA&e=>
> 
>  
> 
> The recordings and transcriptions of the calls are posted on the GNSO Master
> Calendar page: https://gnso.icann.org/en/group-activities/calendar
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group-
> 2Dactivities_calendar&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEi
> DR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=ur-xpg
> tinOuwMSg8wnX6YTUr9mQF4tVqWR5Uu867J80&e=>
> 
>  
> 
> ** Please let me know if your name has been left off the list **
> 
>  
> 
> Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_gn
> so-2Drpm-2Dwg_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWl
> fM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=d08WTVPvoIs8p
> baizleMN-TkGoViJWukVFjCsoQa_as&e=>
> 
>  
> 
> Main wiki page for the working group: https://community.icann.org/x/wCWAAw
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_wC
> WAAw&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1
> c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=WDlCIXZEF11cuAabLb8GpAm
> IJEA5R1y6gEpqKCi5D1A&e=>
> 
>  
> 
> Thank you.
> 
> Kind regards,
> 
> Terri
> 
>  
> _______________________________________________ gnso-rpm-wg mailing list
> gnso-rpm-wg at icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg


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