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

Mon Jan 8 23:36:32 UTC 2018

Speaking personally, I see some other significant differences between YouTube's DMCA compliance practices and the UDRP/URS, aside from being based in a federal statute:

*       The DMCA’s notice-and-takedown procedure provides only a temporary means for removal of content claimed to be infringing, and is not meant to provide a DRP alternative to litigation.
*       Default (failure to respond) by the allegedly infringing party results in the content remaining in takedown status, while in the UDRP/URS context there remains a possibility that the Complaint will fail.
*       YouTube has a direct relationship with its users and can therefore impose specific jurisdiction venue requirements through its TOS. ICANN has no direct relationship with domain registrants, and the “mutual jurisdiction” nexus for  litigation that may be filed in relationship to a UDRP/URS must accommodate the fact that the two parties with a direct contractual relationship (registrar and registrant) may be located in separate national jurisdiction, both of which may lie outside the U.S.; and that the trademark holder complainant may be domiciled in yet a third jurisdiction.

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way

Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

-----Original Message-----
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Nahitchevansky, Georges
Sent: Friday, January 05, 2018 11:08 PM
To: George Kirikos <icann at leap.com>; gnso-rpm-wg <gnso-rpm-wg at icann.org>
Subject: [EXTERNAL] Re: [gnso-rpm-wg] Food for Thought: DMCA procedure at YouTube contrast with URS/UDRP

George K:

The Youtube procedure is linked to the DMCA, which is part of the US copyright laws. The whole point is that if Youtube follows certain procedures under the DMCA it can avoid host liability. This is not Youtube coming up with a new dispute resolution mechanism but a way for Youtube to avoid liability per the DMCA for content being posted on its platform, and for Youtube to avoid being put in the middle of a dispute between a content owner and a potential infringer. This is quite different from the UDRP or URS, which is meant to address abusive registrations of domain names in a cost effective way.

‎You should keep in mind that the DMCA is part of federal law in the US, that it needs to be read in conjunction with other part of the copyright laws as well as the personal jurisdiction laws in the various US sates and constitutional concerns.  Put another way, a copyright infringer in Montreal, for example, can be hauled in to a US court in any US jurisdiction where sufficient contacts can be established that would meet state and constitutional requirements. This means  (a) a much wider range of forums for litigation and where a potential defendant might have to litigate, and (b) less options for a party that has been accused of infringement (i.e. Such a party could file an action in Canada for non-infringement, but still face suit anywhere else in the US where sufficient contacts for state and constitutional purposes can be established). Also keep in mind that attorneys fees and statutory damages are available against an infringer under the US copyright laws if certain requirements are met. All of that fits in hand in hand with the DMCA. So the bottom line is that the Youtube example under the DMCA  is linked to a set of premises that are very different from domain name situations. The Yoyo mail UK example is an outlier case, for reasons that have been discussed ad nauseum. -- and keep in mind it is not the norm given that many many countries allow lawsuits by parties that lost a UDRP.   In sum, we should not be looking to create a whole new model, but perhaps address wrinkles such as the Yoyo mail situation in the UK.

  Original Message

‎

From: George Kirikos‎

Sent: Friday, January 5, 2018 6:23 PM

To: gnso-rpm-wg

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

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-copyri-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/

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