[gnso-rpm-wg] Food for Thought: DMCA procedure at YouTube contrast with URS/UDRP

[Paul Tattersfield]

Has there ever been an instance where someone has made a nuisance of
themselves by re-registering and abusing names that they have had suspended
under a URS determination?





On Mon, Jan 8, 2018 at 3:26 PM, claudio di gangi <ipcdigangi at gmail.com>
wrote:

> George, all,
>
> Thanks for this note.
>
> Just for clarification on the last point, as I understand the current
> remedies available under the URS does not include cancellation of the
> domain.
>
> As a result, upon expiry the suspended domain can be renewed and used
> (including for abusive purposes) by the losing registrant of the URS
> decision.
>
> To address this issue we can consider adding cancellation as a remedy (or
> otherwise modifying the URS) to minimize the need for repeated, serial
> enforcement against previously suspended domains.
>
> Best regards,
> Claudio
>
> On Mon, Jan 8, 2018 at 8:09 AM, George Kirikos <icann at leap.com> wrote:
>
>> Hi Paul,
>>
>> Thanks for your thoughts. I agree that they are different. Just
>> pointing out that there are other systems out there that don't have
>> that role reversal feature.
>>
>> Also, I believe some folks had mused about the possibility of a single
>> DRP that integrated the URS and UDRP. The issue of creation of a
>> "Notice of Dispute", that preceded the actual dispute, also has
>> arisen. If such a system also handled the high number of defaults
>> differently than today, then one result might be a much lower cost
>> procedure in the case of defaults (i.e. it could be very lightweight
>> like the YouTube procedure), and then reference to the courts for the
>> disputes when both sides show up and are heavily contesting the
>> matter.
>>
>> In terms of integration, one way to look at the URS is that it's very
>> similar to a UDRP where the Complainant (TM holder) asks only for
>> cancellation, albeit that the URS cancellation happens with a delay
>> (under the UDRP, the cancellation would happen almost immediately,
>> after allowing for the appeal to the courts)
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>> On Mon, Jan 8, 2018 at 6:30 AM, Paul Keating <Paul at law.es> wrote:
>> > George,
>> >
>> > I know that a response has already been posted but I wanted to add my
>> > quick thoughts.
>> >
>> > I agree that the DMCA and the UDRP/URS are not identical.  In fact the
>> > roles remain reversed throughout the UDRP/URS process.  The DMCA merely
>> > provides a notice, take-down followed by the opportunity to revive the
>> > posting.  Once reposting occurs the issue remains as it was before the
>> > notice - the copyright owner must proceed with litigation.  The UDRP/URS
>> > however, results in the domain being transferred/suspended or not.  In
>> the
>> > case of transfer, it is the registrant that must file.  In the case the
>> > complaint is denied then the trademark owner has that burden (like the
>> > copyright owner in the DMCA example).
>> >
>> > PRK
>> >
>> > On 1/6/18, 12:23 AM, "gnso-rpm-wg on behalf of George Kirikos"
>> > <gnso-rpm-wg-bounces at icann.org on behalf of icann at leap.com> wrote:
>> >
>> >>Hi folks,
>> >>
>> >>There was an interesting article published today about a copyright
>> >>dispute involving "white noise" videos on YouTube:
>> >>
>> >>https://gizmodo.com/man-s-youtube-video-of-white-noise-hit
>> -with-five-copyr
>> >>i-1821804093
>> >>
>> >>which linked to the dispute procedure that YouTube follows:
>> >>
>> >>https://support.google.com/youtube/answer/2797454
>> >>
>> >>Going through the various links, it was very interesting that they
>> >>even have a "Copyright School", see:
>> >>
>> >>https://support.google.com/youtube/answer/2814000
>> >>
>> >>(expand the "How to resolve a copyright strike" to see the link to
>> >>it), which is quite interesting, given how often the education aspect
>> >>for registrants has come up in our PDP's work.
>> >>
>> >>Also of interest is the section on "Counter Notification Basics":
>> >>
>> >>https://support.google.com/youtube/answer/2807684
>> >>
>> >>where importantly it says:
>> >>
>> >>"After we process your counter notification by forwarding it to the
>> >>claimant, the claimant has 10 business days to provide us with
>> >>evidence that they have initiated a court action to keep the content
>> >>down."
>> >>
>> >>and it's the content creator who posts the relevant jurisdiction:
>> >>
>> >>https://support.google.com/youtube/answer/6005919
>> >>
>> >>""I consent to the jurisdiction of the Federal District Court for the
>> >>district in which my address is located, or if my address is outside
>> >>of the United States, the judicial district in which YouTube is
>> >>located, and will accept service of process from the claimant."
>> >>
>> >>As noted in prior threads, various issues arise under the URS (and
>> >>UDRP) when the natural role of plaintiffs vs. defendants (had the
>> >>URS/UDRP not existed) gets reversed (e.g. the Yoyo.email UK "cause of
>> >>action issue", as well as IGO and other groups' claimed "sovereign
>> >>immunity").
>> >>
>> >>With the dispute resolution procedure followed by YouTube, instead the
>> >>onus is on the copyright owner (the "claimant") to file the lawsuit,
>> >>in the same natural way that would exist had that dispute resolution
>> >>procedure not existed. Thus, none of the issues due to reversal of
>> >>plaintiff/defendant arise.
>> >>
>> >>I thought it would be of interest, especially as it also might also
>> >>give insights as to how "defaults" are handled.
>> >>
>> >>Food for thought.
>> >>
>> >>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
>> >
>> >
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>
>
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