[Gnso-epdp-team] FW: IPC Proposal for Day 1 Automation

Mueller, Milton L milton at gatech.edu
Fri Jan 31 21:58:31 UTC 2020


>Since the free speech example would not be trademark infringement, the
>requestor could not cite that basis to request data for a domain like this.

LOL. That's the problem with automation, Brian. They could cite any basis they pleased and they would get the data. There would be no opportunity to challenge it. No one would even see it.

> Remember that in this use case we're requiring that the requestor allege
> infringement, and fraud or misrepresentation can result in deaccreditation.
>The additional noteworthy safeguards we mention below are tied to this
>representation: that the requestor has a good-faith belief that the domain name is infringing.
>Do you think additional safeguards are required? If so, why? Which ones would you suggest?

Trademark owners often sincerely believe that any use of their mark in any circumstance is an infringement. I invite you to read 1,000 UDRP cases or so if you doubt this. This is no safeguard at all.
And oh by the way, if the process is automated how is anyone supposed to know what was alleged and how well the allegations matched the actual case? By doing a laborious after the fact log check after millions of disclosures have been made? Do we both understand the meaning of the term "automated" here? It means, you enter a query and you get results, no human intervention.

>As a final point on your note below, it seems like you think the legal standard for disclosure
>is proof of infringement.

No of course I do not think that. You do not need to prove infringement to get disclosure. But we are not having an argument about the criteria for disclosure, we are having an argument about when we can _automate_ disclosure.  You seem to be assuming that if these requests are not automated there will be no disclosure. Clearly that is not the case. You will make a request, it will be reviewed by a human, and if it is prima facie reasonable, you will get disclosure. I will even say that in most cases disclosure will be routine, because the pattern of a domain suspect of trademark infringing is quite common. But routinization is not automation. You can have the former but not the latter.

Dr. Milton L Mueller
School of Public Policy
Georgia Institute of Technology
[IGP_logo_gold block_email sig]

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