[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
Wed Feb 7 16:11:29 UTC 2018


Renee,

Regarding the confidentiality, there is no provision in the Rules that would
form the basis for confidentiality of filings.  There is obviously nothing
to prevent a panelist from quoting anything contained in the filings.  And,
of course there is nothing that prevents the opposing party from publishing
any filings they have received.  Thus, although they have typically not been
published, it would be unusual for the parties to somehow believe they have
some right of confidentiality in documents being submitted..   Nevertheless,
I have suggested that disclosure of the underlying filings be gated in terms
of access so that they are not needlessly publicized.  If you feel there is
some legal basis for asserting confidentiality please share it with us.

Regarding NAF¹s post WG report interactions with its panelists, that is a
matter yet to be determined.  WIPO, for example, is very active in promoting
continuing education of panelists. This has never been seen as interference
or undermining WIPO¹s role as a neutral.  And, in any event the result would
be an assessment of whether or not, and to what extent, panel decisions
reflected the established standards.


Paul


From:  gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of "Fossen,
Renee" <rfossen at adrforum.com>
Date:  Wednesday, February 7, 2018 at 4:53 PM
To:  Jonathan_agmon icann <jonathan.agmon.icann at ip-law.legal>, Georges
Nahitchevansky <ghn at kilpatricktownsend.com>
Cc:  "gnso-rpm-wg at icann.org" <gnso-rpm-wg 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

> As a URS Provider, Forum finds itself in a difficult position with respect to
> many of the decision review options set forth to date.  We are concerned that
> the filing parties reasonably expected that their filings would be
> confidential. We are also concerned that if we intervened with the examiners
> on behalf of the WG regarding past decisions, or drew conclusions regarding
> the examiners¹ aptitude to decide a particular case correctly, that we would
> undermine our role as a neutral administrator in the URS process.
>  
> Forum will of course continue to cooperate with the WG, but cautions that any
> information outside of the decision itself should be gathered in a way that
> does not upset the integrity of the URS system.
>  
> Kind regards,
>  
> Renee Fossen
> Director of Arbitration
>  
> Forum
> 6465 Wayzata Blvd., Suite 480
> Minneapolis, MN  55405
> Phone  952.516.6456
> E-mail rfossen at adrforum.com <mailto:rfossen at adrforum.com>
> www.adrforum.com
>  
>  
>  
> 
> From: Jonathan_agmon icann [mailto:jonathan.agmon.icann at ip-law.legal]
> Sent: Tuesday, February 06, 2018 7:12 PM
> To: Nahitchevansky, Georges
> Cc: gnso-rpm-wg 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
>  
> 
> I agree with Georges¹ comments and some comments made in the call that
> qualitative review may not be very constructive.
> 
>  
> 
> The cases are determined by panelists from various backgrounds, legal system
> qualifications, and experience, and trying to second guess why decisions came
> out the way they do would not in my mind lead to any meaningful result. As
> stated in the call some decisions are better reasoned than others and
> therefore I do agree that if a review is undertaken the review may at best
> address the minimum requirements of information to be stated in the decisions
> by Panelists. 
> 
>  
> 
> Thanks,
> 
>  
> 
> 
> On 7 Feb 2018, at 7:34 AM, Nahitchevansky, Georges
> <ghn at kilpatricktownsend.com> wrote:
>> 
>> I agree with some of the comments made by Scott and others, but want to add a
>> few additional thoughts.  Looking at appeals is not really going to prove
>> much of anything.  It certainly does not tell you whether a UDRP or URS
>> decision was correctly decided.  First, the elements for establishing viable
>> UDRP or URS cases are different in many respects from national laws that look
>> at whether or not a domain name registration or use is infringing, and/or
>> constitutes cybersquatting, unfair competition, defamation or libel etc.  The
>> point is that court actions can include many other claims or defenses
>> depending on the jurisdiction you are litigating in.  Second, UDRP and URS
>> cases are streamlined procedures with limited records or evidence.  Thus, a
>> case could have been properly decided by a UDRP panelist based on the record
>> presented, but on a full record could be seen otherwise.  Sometimes
>> Complainants or Respondents do a terrible job in laying out their cases and
>> provide little to no evidence to support their contentions.  So the fact that
>> a court action appeal resulted in a decision that is different from a UDRP or
>> URS decision does not prove that the case was wrongly decided in the first
>> instance.  Third, you cannot conclude that an appeal is always being filed
>> because there is a viable case.  There are ample examples of people filing
>> appeals simply to force a settlement of the matter.  For example, the cost of
>> litigating in the US can be quite high and thus there are many examples of
>> people filing questionable appeals with contingency fee attorneys, not
>> because they legally believe they have a strong case, but believe and hope
>> that the other side will decide to a pay a settlement amount that is far less
>> than the anticipated litigation costs.  There are also many examples of
>> people who have registered domain names using addresses and registrars in
>> jurisdictions where they can file cheap appeals to try to create problems for
>> the parties who prevailed in the UDRP or URS -- and do so on the basis of
>> securing pretextual flimsy rights in such jurisdictions.  Again this is done
>> to try and force a settlement and not because the losing party had a viable
>> case.  Consequently, if a case on appeal settled and something was paid to a
>> Respondent, it does mean anything as to whether or not the UDRP or URS was
>> correctly decided.  It may simply mean that the Complainant found it cheaper
>> and more expedient to pay off the Respondent as a way of avoiding a
>> protracted and potentially costly litigation (i.e. a business decision).
>> Lastly, I'm not sure how all appeals are tracked, but there likely as many
>> post UDRP or URS lawsuits filed by Complainants against Respondents where the
>> Complainant lost the UDRP or URS.  Again this does not mean that the UDRP or
>> URS decisions were incorrect.  There are often cases where the UDRP or URS
>> elements might not be established by the Complainant but there might be
>> viable claims for cybersquatting, trademark infringement, unfair competition
>> or defamation under national laws. Again the UDRP and URS are a streamlined
>> process for a subset of potential claims and there are many cases that fall
>> outside of the scope of what the UDRP or URS are intended for.  One good
>> example, is a case where a respondent initially registered a domain name in
>> good faith, but then only uses it in bad faith to take advantage of another's
>> trademark.  Because the UDRP and URS have a conjunctive requirement of bad
>> faith registration and use, the weight of decisions would rule against the
>> Complainant and in favor of the Respondent.  The Complainant might then be
>> able to file a viable ACPA or trademark infringement claim and prevail.  In
>> that situation, the UDRP decision would have been correct and the Court
>> decision would likewise be correct.  Similarly, there are many case that
>> involve situations where the identity of the registrant is unknown. This
>> could be because the registrant uses bogus registration information (such as
>> a fake name) or uses a privacy service that does not lift the privacy shield,
>> etc.  This might then result in a stilted record that is put before a panel.
>> In a subsequent court case, there could be a much more robust record to
>> establish a claim.  So again you could not draw conclusions as to whether or
>> not a UDRP or URS was correctly or incorrectly decided.
>> 
>>  
>> 
>> In sum, looking at appeals without knowing (i) what evidence was presented on
>> the UDRP or URS levels, (ii) whether the original whois information was
>> accurate, or (iii) what the motivation for filing the appeal might be, will
>> not be very probative.  Similarly relying on blogs that discuss UDRP cases,
>> or reviewing a case decision itself, does not necessarily tell you much if
>> you don't know what was actually filed and considered by the Panel ruling on
>> the matter.  If you are going to get into trying to review the underlying
>> pleadings and in all instances, a fortiori, the brand owner claims -- both of
>> which I do not support -- then it seems, for full purposes of a review, that
>> you should also want to get full information on the actual parties who
>> registered the domain names to see if they gamed the system with fake names
>> or privacy shields.  You could certainly seek to obtain information on who
>> paid for the registration of the domain names at issue, which might tell you
>> who is really the party behind a registration.  Again, I am not in favor of
>> doing any of these types of reviews, but if there are those who suggest we go
>> down one route, then these other routes should be explored as well as they
>> would certainly have a bearing on cases where Complainants lost because a
>> Respondent cleverly gamed the system.
>> 
>>  
>> 
>> As for comments about the number of cases filed or appeals thereof, numbers
>> alone don't say much.  If the notion is to increase the number of filings,
>> then perhaps a way to address that would be to change the standard for a UDRP
>> or URS from bad faith registration and use to bad faith registration or use
>> and/or include trademark infringement as a basis of a claim, perhaps provide
>> more meaningful relief in URS cases -- such as a transfer of the domain name,
>> perhaps better access to accurate Whois information or a workable mechanism
>> to get accurate information on the actual registrant of a domain name.
>> 
>>  
>> 
>> Georges Nahitchevansky
>> 
>>  
>> 
>>  
>> 
>> -----Original Message-----
>> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George
>> Kirikos
>> Sent: Tuesday, February 6, 2018 2:37 PM
>> To: Scott Austin <SAustin at vlplawgroup.com>
>> Cc: gnso-rpm-wg 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
>> 
>>  
>> 
>> Hi Scott,
>> 
>>  
>> 
>> I'm not sure why your browser would give warnings, but I didn't link to any
>> dangerous sites. In your email, the links are mangled. You can see what the
>> original links were on this mailing list's web archive
>> 
>> at:
>> 
>>  
>> 
>> http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html
>> 
>>  
>> 
>> i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc.
>> 
>>  
>> 
>> Contrast those links with the mangled links in your email at:
>> 
>>  
>> 
>> http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html
>> 
>>  
>> 
>> While it may be true that some of these cases lack reasons for the orders, if
>> they're settlements, they're still court orders or decisions (that enabled
>> the registrar to release the domain name from any litigation hold) and that
>> changed the outcome of the UDRP. The fact that UDRP decisions were
>> overturned, and UDRP complainants agreed to pay damages or costs speaks for
>> itself. Knowing the court case number, anyone could use PACER or other
>> national court databases to look at the public filings and documents, and
>> infer what the reasons might have been, had the case proceeded, based on the
>> evidence and/or arguments presented.
>> 
>>  
>> 
>> Sincerely,
>> 
>>  
>> 
>> George Kirikos
>> 
>> 416-588-0269
>> 
>> http://www.leap.com/
>> 
>>  
>> 
>>  
>> 
>> On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin at vlplawgroup.com> wrote:
>> 
>>> > George:
>> 
>>> > Some of the links you provided raised safety concerns on my browser so I
>>> did not review every link, but for each case for which you provided
>>> alternate links I was able to get at least the domain press version. It
>>> appears all but the last are stipulated settlements with no court opinion or
>>> analysis of claims or any discussion of a legal basis for overriding the
>>> underlying UDRP result. To echo an earlier post, it is questionable what, if
>>> anything, can be drawn from the court sanctioned settlements as the
>>> defendants in each case might have just lacked the resources or resolve to
>>> defend their UDRP success in an action in US federal court. The same would
>>> apply to the default judgment you obtained in Canada  for <pupa.com
>>> <http://pupa.com> > which WIPO did post. These cases show no court analysis
>>> questioning the efficacy of the UDRP.
>> 
>>> > 
>> 
>>> > The 4th entry on your list is interesting but may be very limited to its
>>> facts, especially as the Hogan Lovells analysis rightly points out, after
>>> the French district court agreed with the UDRP result the French appellate
>>> court considered territoriality in an infringement action and relied upon
>>> the related website's territoriality carve out (tabs for only non-EU
>>> countries) to deny trademark infringement, consistent with French precedent,
>>> even in the presence of use of a mark in  a .com global gTLD domain name. As
>>> HL rightly pointed out, "the assessment of trademark infringement is
>>> intrinsically different from the assessment conducted under the UDRP."
>> 
>>> > 
>> 
>>> > Best regards,
>> 
>>> > Scott
>> 
>>> > 
>> 
>>> > Please click below to  use my booking calendar to schedule:
>> 
>>> >   a 15-minute call    a 30-minute call    a 60-minute call
>> 
>>> > 
>> 
>>> > 
>> 
>>> > Scott R. Austin | Board Certified Intellectual Property Attorney | VLP
>> 
>>> > Law Group LLP
>> 
>>> > 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301
>> 
>>> > Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com
>> 
>>> > 
>> 
>>> > -----Original Message-----
>> 
>>> > From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of
>> 
>>> > George Kirikos
>> 
>>> > Sent: Tuesday, February 6, 2018 9:02 AM
>> 
>>> > To: gnso-rpm-wg 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
>> 
>>> > 
>> 
>>> > P.S. While I have Brian's attention, I'd like to note that I've
>> 
>>> > **repeatedly** brought to WIPO's attention various court appeals of UDRP
>>> decisions, yet they they never get posted to WIPO's page at:
>> 
>>> > 
>> 
>>> > https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai
>> 
>>> > ns/challenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8g
>> 
>>> > CisD8w8iAijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
>> 
>>> > 
>> 
>>> > I understand that others have attempted to also get cases added to
>> 
>>> > that list, without success. Thus, perhaps we have a situation of low
>> 
>>> > *reported* appeals, because of missing data with regards to court actions.
>> 
>>> > 
>> 
>>> > Here are 4 court cases that I brought to WIPO's attention already:
>> 
>>> > 
>> 
>>> > 1. 
>> 
>>> > https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXi
>> 
>>> > hZRNshnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvd
>> 
>>> > QtsUOtwg8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 --
>> 
>>> > https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/0
>> 
>>> > 7/21/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1h
>> 
>>> > dACWod77IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvn
>> 
>>> > nqzmEP56VNRpk4cVR9l1kp6-&typo=1
>> 
>>> > 
>> 
>>> > 2. 
>> 
>>> > https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8l
>> 
>>> > Jn4c5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehn
>> 
>>> > lfr0ONkTGY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 --
>> 
>>> > http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.us
>> 
>>> > courts.cod.147273.23.0.pdf
>> 
>>> > 
>> 
>>> > 3. 
>> 
>>> > https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzg
>> 
>>> > cZDLBXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl
>> 
>>> > 9h5newNWNDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 --
>> 
>>> > https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/0
>> 
>>> > 7/22/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLG
>> 
>>> > elVVrPkRYuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZ
>> 
>>> > s7ectA9nxVRf1IrhBQnX-tXBEaOPEOaj4,&typo=1
>> 
>>> > 
>> 
>>> > 4. 
>> 
>>> > https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm
>> 
>>> > 51IbqbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG
>> 
>>> > 05TSsexK9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 --
>> 
>>> > https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/
>> 
>>> > detail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4
>> 
>>> > XKMVdRe1Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAy
>> 
>>> > r-XQiHGxG44TwbnDpVipyHVjDFiuohck,&typo=1
>> 
>>> > https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurispru
>> 
>>> > dences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E,
>> 
>>> > 1,d29bBLDOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ff
>> 
>>> > iDDy7KlgB3xmGDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1
>> 
>>> > https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai
>> 
>>> > ns/search/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ
>> 
>>> > 2JyqinuJafCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZ
>> 
>>> > ykPVLyv1ALK4FywjpoKe_x9c1WUfl&typo=1
>> 
>>> > 
>> 
>>> > Perhaps similar cases exist for the URS (although, less likely, given that
>>> new gTLD domains tend to be worth far less than .com domain names, and thus
>>> it makes less economic sense to invest money in legal fees to defend them).
>> 
>>> > 
>> 
>>> > Let's check back at:
>> 
>>> > 
>> 
>>> > https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai
>> 
>>> > ns/challenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2W
>> 
>>> > ohfKoubto77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&ty
>> 
>>> > po=1
>> 
>>> > 
>> 
>>> > and see if those 4 cases above get added.
>> 
>>> > 
>> 
>>> > Sincerely,
>> 
>>> > 
>> 
>>> > George Kirikos
>> 
>>> > 416-588-0269
>> 
>>> > https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj
>> 
>>> > 6kIMBk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQh
>> 
>>> > TJVMpDtsHsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > 
>> 
>>> > On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann at leap.com> wrote:
>> 
>>>> >> Well said, Rebecca.
>> 
>>>> >> 
>> 
>>>> >> Furthermore, if a low level of appeals is an appropriate metric, then
>> 
>>>> >> I would think that the low overall usage rate of the entire URS
>> 
>>>> >> procedure, relative to the number of domain names registered, should
>> 
>>>> >> also be an appropriate metric. The same would apply to the very low
>> 
>>>> >> sunrise usage. That would support the elimination of the sunrise and
>> 
>>>> >> URS procedures, given their low adoption.
>> 
>>>> >> 
>> 
>>>> >> The fact that just 33 survey responses in the INTA survey were
>> 
>>>> >> considered by some here to be very powerful evidence (LOL!) speaks
>> 
>>>> >> for itself.
>> 
>>>> >> 
>> 
>>>> >> Unlike those 33 survey responses which purported to be statistically
>> 
>>>> >> representative of all TM holders worldwide and valid, we can review
>> 
>>>> >> the entire universe of URS decisions (thus it's no longer a *sample*
>> 
>>>> >> of a larger population, where getting a reliable sample might be
>> 
>>>> >> hard; it's the *entire* population being studied).
>> 
>>>> >> 
>> 
>>>> >> Sincerely,
>> 
>>>> >> 
>> 
>>>> >> George Kirikos
>> 
>>>> >> 416-588-0269
>> 
>>>> >> https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_
>> 
>>>> >> b
>> 
>>>> >> Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc
>> 
>>>> >> 0
>> 
>>>> >> F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
>> 
>>>> >> 
>> 
>>>> >> On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca
>> 
>>>> >> <rtushnet at law.harvard.edu> wrote:
>> 
>>>>> >>> 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
>> 
>>>>> >>> 
>> 
>>>>> >>> MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
>> 
>>>>> >>> 
>> 
>>>>> >>> Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> The recordings and transcriptions of the calls are posted on the
>> 
>>>>> >>> GNSO Master Calendar page:
>> 
>>>>> >>> https://gnso.icann.org/en/group-activities/calendar
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> ** Please let me know if your name has been left off the list **
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> Main wiki page for the working group:
>> 
>>>>> >>> https://community.icann.org/x/wCWAAw
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> 
>> 
>>>>> >>> 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
>> 
>>> > _______________________________________________
>> 
>>> > gnso-rpm-wg mailing list
>> 
>>> > gnso-rpm-wg at icann.org
>> 
>>> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>> 
>>> > 
>> 
>>> > 
>> 
>>> > This message contains information which may be confidential and legally
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>>> have received this message in error, please send me an email and delete this
>>> message. Any tax advice provided by VLP is for your use only and cannot be
>>> used to avoid tax penalties or for promotional or marketing purposes.
>> 
>> _______________________________________________
>> 
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>> 
>> gnso-rpm-wg at icann.org
>> 
>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>> 
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>> 
>> _______________________________________________
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