[GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?

Fri Jan 4 21:20:51 UTC 2019

I would suggest that the discussion of The Origin of the Universe and All
Things In It should be forked into a different thread, since it is an
admitted “tangent” to this thread.  Going down a rabbit-hole is bad enough;
going into a rabbit-Tardis is much worse.

Greg

On Fri, Jan 4, 2019 at 4:15 PM Greg Shatan <gregshatanipc at gmail.com> wrote:

> It seems unlikely that a single list exists, since agencies from 26
> countries plus Europol and Interpol were involved in the criminal seizures,
> and an untold number of entities were involved in the civil seizures.
>
> We can glean some information from the latest ICE press release, as well
> as previous press releases.
>
> The domain names cited in the latest press release were chinaseatbelt.com,
> airbagpart.com, chinasafetybelt.com, fareurope.com, far-Europe.com, and
> PRBlogics.com.  The first three domains appear to be using these terms in
> their generic meanings, while the next two are the domains based on the
> name of the company operating the websites (selling counterfeit seatbelt
> and airbag parts) found at the first three domains. PRBlogics.com is
> derived from the name of the company selling counterfeit chips (primarily
> field programmable gate arrays, apparently).  None of these domain names
> has relevance to ICANN RPMs.
>
> We can also see that the target of Operatio In Our Sites is the sale and
> distribution of counterfeit goods — not the domain names per se. That is a
> major distinction from RPMs.  Of course, it’s possible that some of the
> websites selling counterfeit goods had trademark-infringing domain names,
> too (in prior iterations, both cheapjerseysite.net and cheapnfljerseys.com
> were seized, along with 300+ other domains).  But given the focus on
> counterfeit goods in Operation In Our Sites, these actions are clearly not
> a substitute for ICANN RPMs.
>
> Looking at prior descriptions In Our Sites efforts, they specifically
> discuss “websites which closely mimicked legitimate websites” — in other
> words “copyright-infringing websites.”  So, IP claims involved here may be:
> (1) trademark, based on the trademark being used on counterfeit goods, (2)
> copyright, based on copying of legitimate website content, (3) copyright,
> based on copyright in the goods themselves (e.g., movies, music, software,
> games, decorative goods, etc.) and (4) trademark, based on an infringing
> domain name.  Only the last is actionable under the RPMs we’re charged with
> reviewing.
>
> Prior descriptions also note that websites using domains with ccTLDs are
> part of the target group, so this is another area of non-overlap with the
> ICANN RPMs.
>
> I would take issue with the idea that this all takes place in a way that
> is “free” to the victimized companies.  There are all sorts of costs
> attached to the ICE efforts that fall on the companies involved.  First,
> there are the civil seizures noted in the press release; these are the
> financial responsibility of the companies, at a high multiple to the cost
> of a URS or UDRP.  Second, coordination between the victimized companies
> and the multiple government agencies, necessary to support the criminal
> investigations, comes at a cost as well.  Third, there are underlying costs
> in maintaining systems, processes and staff dedicated to stopping
> counterfeiting.
>
> Finally, it is clear that there are a variety of ways to deal with
> trademark-infringing domain names, in isolation or in combination with
> other civil or criminal legal violations, and as a primary consideration or
> as a sideshow.  These ICE-coordinated actions and ICANN RPMs are only two
> of them. Some may involve criminal enforcement, others civil court
> litigation, still others administrative remedies, others alternate dispute
> resolution mechanisms, and others involve private resolutions.  It is not
> uncommon to use more than one, either serially or in parallel, depending on
> the circumstances.  But these methods are not fungible, and certain methods
> will fit certain problems better.  Operation In Our Sites is significantly
> different in numerous ways from ICANN RPMs, and is simply not a replacement
> for the URS or UDRP; at best, it is a complement. As such, it would not
> seem fruitful or a good use of resources to open up a major new line of
> inquiry, unless we have developed an undue fondness for rabbit-holes.
>
> Best regards,
>
> Greg
>
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> On Fri, Jan 4, 2019 at 2:33 PM Corwin, Philip via GNSO-RPM-WG <
> gnso-rpm-wg at icann.org> wrote:
>
>> Errata -- First sentence should read, " I was not involved with ICANN
>> until late 2006, so I was not  a participant in the discussions that led to
>> the UDRP being established at its inception."
>>
>> 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
>> Corwin, Philip via GNSO-RPM-WG
>> Sent: Friday, January 04, 2019 2:29 PM
>> To: icann at leap.com; gnso-rpm-wg at icann.org
>> Subject: [EXTERNAL] Re: [GNSO-RPM-WG] ICE domain name seizures --
>> potential source of data for RPM PDP?
>>
>> I was not involved with ICANN until late 2006, so I was not  PrticipNT in
>> the discussions that led to the UDRP being established at its inception.
>> Other members of this WG likely were and could knowledgeably respond to
>> your initial question. While this WG's Charter requires it to consider
>> whether URS should become an ICANN Consensus Policy, UDRP already has that
>> status and I take it as a given that there is unlikely to ever be consensus
>> within the ICANN community to do away with it. I therefore believe that our
>> Phase 2 efforts will be better focused on improving it.
>>
>> As to the provision of non-judicial alternatives to resolution of other
>> types of legal disputes, I would note that UDRP is not applicable to all
>> types of trademark disputes concerning domains, but only one narrow and
>> rather simple type of trademark dispute that can be resolved quickly and
>> without personal appearances, discovery, or other attributes of full
>> judicial process.  Complex civil disputes do not lend themselves to that
>> type of approach; antitrust/competition law disputes, for example, involve
>> exceedingly complex legal and econometric analysis and extended discovery
>> and other procedural attributes, and generally extend for years between
>> initial filing and final appeals.
>>
>> 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
>> George Kirikos
>> Sent: Friday, January 04, 2019 1:08 PM
>> To: gnso-rpm-wg at icann.org
>> Subject: [EXTERNAL] Re: [GNSO-RPM-WG] ICE domain name seizures --
>> potential source of data for RPM PDP?
>>
>> Phil:
>>
>> Remind me, what was so special about trademark owners that merit them
>> having non-judicial RPMs?
>>
>> If a party had a dispute with a registrar or registry, that would
>> typically be handled by the courts. e.g. if someone wanted to bring an
>> anti-trust action against Verisign, that would happen in the courts.
>> Are you in favour of the creation of non-judicial alternatives to civil
>> litigation for those other entities and causes of action too, that would
>> expose Verisign to anti-trust decisions outside of courts?
>> If the "justification" for the ICANN-created RPMs is that they're lower
>> cost alternatives to the courts, why not do the same for other causes of
>> actions against registrars and registries, in the name of "self-help" which
>> you appear to argue is desirable?
>>
>> Where are the non-judicial "self-help" remedies for removing entries from
>> the TMCH, for example?
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>> On Fri, Jan 4, 2019 at 12:43 PM Corwin, Philip <pcorwin at verisign.com>
>> wrote:
>> >
>> > Thanks for your feedback, Susan.
>> >
>> >
>> >
>> > A few additional personal comments—
>> >
>> > It appears from the ICE press release that a number of other national
>> law enforcement agencies may have been involved in the seizures.
>> > While the seizure may have been “free” to the trademark owner if the
>> domain was one that met the criteria for bringing a UDRP or URS, there is
>> considerable expenditure of public funds in these efforts.
>> > These law enforcement agency domain actions are directed at criminal
>> activity, whereas the great majority of UDRP and URS actions focus on
>> domains that could be the subject of civil trademark litigation. I would
>> not favor eliminating the availability of self-help to trademark
>> registrants via non-judicial RPMs, but one unintended result of doing so
>> might be to encourage some trademark owners to seek law enforcement actions
>> against domains that previously would have merited the filing of a UDRP or
>> URS.
>> >
>> >
>> >
>> > Best to all,
>> >
>> > Philip
>> >
>> >
>> >
>> > 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
>> >
>> >
>> >
>> > From: GNSO-RPM-WG [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of
>> > Susan Payne
>> > Sent: Friday, January 04, 2019 5:41 AM
>> > To: George Kirikos <icann at leap.com>; gnso-rpm-wg
>> > <gnso-rpm-wg at icann.org>
>> > Subject: [EXTERNAL] Re: [GNSO-RPM-WG] ICE domain name seizures --
>> potential source of data for RPM PDP?
>> >
>> >
>> >
>> > I completely agree with Phil's comments.
>> >
>> >
>> >
>> > In addition:
>> >
>> > 1. Can we try to remember that not all rights infringement or
>> enforcement happens in the US or has a US-connection.  From ICE's website
>> the mission is "to protect the national security and public safety of the
>> United States by disrupting and dismantling transnational criminal
>> organizations that engage in cross-border crime".
>> >
>> >
>> >
>> > 2. Also from ICE's website: "Due to the lapse in federal funding, this
>> website will not be actively managed".  Presumably there are also other
>> impacts on ICE activity, and this is hardly the first time this has
>> happened.
>> >
>> >
>> >
>> > Let's not argue for replacement of ICANN measures by a so-called "free"
>> option which is not available to all, where any action taken depends on the
>> US's current priorities, and whose funding generally is subject to whatever
>> US political squabble happens to be occurring.
>> >
>> >
>> >
>> > Susan Payne
>> >
>> > Head of Legal Policy
>> >
>> >
>> >
>> > Valideus
>> >
>> > 28-30 Little Russell Street
>> >
>> > London WC1A 2HN
>> >
>> > United Kingdom
>> >
>> >
>> >
>> > E: susan.payne at valideus.com
>> >
>> > www.valideus.com
>> >
>> >
>> >
>> > Liability cannot be accepted for statements made which are clearly the
>> sender’s own and not made on behalf of Valideus.
>> >
>> > This message is intended solely for the addressee and may contain
>> confidential information. If you have received this message in error,
>> please send it back to us, and immediately and permanently delete it. Do
>> not use, copy or disclose the information contained in this message or in
>> any attachment.
>> >
>> > Valideus Ltd is registered in England and Wales with company number
>> 06181291 and VAT number 272 9057 85.  Our registered office is at 28-30
>> Little Russell Street, London, WC1A 2HN.
>> >
>> >
>> >
>> >
>> >
>> > -----Original Message-----
>> >
>> > From: GNSO-RPM-WG [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of
>> > George Kirikos
>> >
>> > Sent: 02 January 2019 21:13
>> >
>> > To: gnso-rpm-wg <gnso-rpm-wg at icann.org>
>> >
>> > Subject: Re: [GNSO-RPM-WG] ICE domain name seizures -- potential source
>> of data for RPM PDP?
>> >
>> >
>> >
>> > Hi Theo,
>> >
>> >
>> >
>> > If it was only about copyright issues, then the list will likely be
>> useless, as I agree that it's out of our scope.
>> >
>> >
>> >
>> > But, it's possible (as per the TechDirt article) that it was actually
>> TM issues too, in which case ICE might have gone after cybersquatting.
>> >
>> > One will be able to quickly determine things by looking at the actual
>> list of domains.
>> >
>> >
>> >
>> > In the last paragraph of the TechDirt article, the author writes:
>> >
>> >
>> >
>> > "I've fired off a FOIA request asking for the details of these "seized"
>> domains and the communications with those industry partners.
>> >
>> > Should ICE ever decide to obey the law and respond to the FOIA, we'll
>> share it here."
>> >
>> >
>> >
>> > But, perhaps someone else here already has the list and is allowed to
>> publish it.
>> >
>> >
>> >
>> > Sincerely,
>> >
>> >
>> >
>> > George Kirikos
>> >
>> > 416-588-0269
>> >
>> > http://www.leap.com/
>> >
>> >
>> >
>> > On Wed, Jan 2, 2019 at 4:03 PM theo geurts <gtheo at xs4all.nl> wrote:
>> >
>> > >
>> >
>> > > Hi George,
>> >
>> > >
>> >
>> > > Is a full list going to help us here? ICE is focussed on copyright
>> "issues."
>> >
>> > > Sure we can discuss if they do it correctly or not, but it seems to
>> > > be
>> >
>> > > out of our scope.
>> >
>> > > Our bylaws are pretty clear, not to mention;
>> >
>> > > https://www.icann.org/news/blog/icann-is-not-the-internet-content-po
>> > > li
>> >
>> > > ce
>> >
>> > >
>> >
>> > > Feel free to correct me, I somewhat lost track of this group, so I
>> >
>> > > apologize in advance.
>> >
>> > >
>> >
>> > > Thanks,
>> >
>> > >
>> >
>> > > Theo Geurts CIPP/E
>> >
>> > >
>> >
>> > >
>> >
>> > > On 2-1-2019 17:48, George Kirikos wrote:
>> >
>> > > > Hi folks,
>> >
>> > > >
>> >
>> > > > Happy New Year.
>> >
>> > > >
>> >
>> > > > There was news about ICE seizing over 1 million domain names, see:
>> >
>> > > >
>> >
>> > > > https://www.ice.gov/news/releases/over-million-websites-seized-glo
>> > > > ba
>> >
>> > > > l-operation
>> >
>> > > >
>> >
>> > > > https://www.techdirt.com/articles/20181213/18030341224/ice-seizes-
>> > > > ov
>> >
>> > > > er-1-million-websites-with-no-due-process-apparently-unaware-that-
>> > > > co
>> >
>> > > > pyright-trademark-are-different.shtml
>> >
>> > > >
>> >
>> > > > I was curious whether anyone (maybe a registrar, registry, or TM
>> >
>> > > > holders who were involved, i.e. the "industry partners") has and
>> > > > can
>> >
>> > > > share the complete list of domain names that were seized, as that
>> >
>> > > > might be a potential source of data for our work.
>> >
>> > > >
>> >
>> > > > 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
>> >
>> > _______________________________________________
>> >
>> > GNSO-RPM-WG mailing list
>> >
>> > GNSO-RPM-WG at icann.org
>> >
>> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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