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

Mon Jan 8 19:49:22 UTC 2018

Fine but if you want such a remedy file a udrp. 

Sincerely,
Paul Keating, Esq.

> On Jan 8, 2018, at 6:16 PM, claudio di gangi <ipcdigangi at gmail.com> wrote:
> 
> Paul,
> 
> To clarify, I am not suggesting a remedy that equates to an immediate cancellation, such as the remedy for cancellation that is available under the UDRP.
> 
> Rather, as George described in his last note, the cancellation would only take effect upon the expiration of the domain's life-cycle. This will need to take into account the various procedures of the URS, such as the appeals mechanism.
> 
> Best regards,
> Claudio
> 
> 
> 
>  
> 
>> On Mon, Jan 8, 2018 at 11:13 AM, Paul Keating <Paul at law.es> wrote:
>> I would be very opposed to having cancellation available in a URS proceeding, particularly given the issues discussed concerning notice and language.  If the complainant wants the domain they should proceed to the UDRP route
>> 
>> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Paul Tattersfield <gpmgroup at gmail.com>
>> Date: Monday, January 8, 2018 at 4:58 PM
>> To: claudio di gangi <ipcdigangi at gmail.com>
>> Cc: gnso-rpm-wg <gnso-rpm-wg at icann.org>
>> Subject: Re: [gnso-rpm-wg] Food for Thought: DMCA procedure at YouTube contrast with URS/UDRP
>> 
>> 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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