[Gnso-ppsai-pdp-wg] Recap & Moving Forward

Wed Nov 5 09:40:24 UTC 2014

On 5 Nov 2014, at 5:19 am, Valeriya Sherman <VSherman at sgbdc.com> wrote:

> Phil/Graeme -- An IP owner would know who they authorized to use the IP and who they did not. The issue is that they do not know whether a particular Customer, whose identity is hidden, needs authorization or not. In the example I provided earlier, where a Requestor has rights in US but not in the EU, it would be essential for him to know where the Customer is located to establish whether the Customer needs any authorization -- and that is some of the information that Disclosure  would provide.

	Knowing whether the IP is authorized or not is NOT the only factor in knowing whether or not in knowing whether the customer needs authorization, because there exist (varying by jurisdiction) fair use defences to use of trademarks, alternative IP, and all the other uses that Volker mentioned. 
	There is no foolproof way of knowing whether a customer is entitled to fair use etc (though of course by looking at site contents you can probably have a reasonable idea), and sometimes that may be the issue the UDRP arbitration is deciding. 
	Those who are using a fair use defence (which is not something that can be determined until after the UDRP is initiated) may be particularly keen to avoid Disclosure, as the information may be used not just for UDRP, but for other forms of action, which may be legal or informal. 

> Another point that came up during our call is that an authorized party would respond to a relay request. Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure. As noted above, a Customer may not need any authorization, so his failure to reply to a relayed request is not conclusive evidence of his rights or lack thereof.

	And if they reply to a relayed request that isn't necessarily evidence of anything either. 

	It really seems to me that this line of argument is basically 'any information that might usefully inform about the possible outcome of UDRP/URS is grounds for disclosure'. And I think that reasoning has it backwards - of course it would be useful to know any information that would help know the outcome of a UDRP before one is launched, but presumably it is useful to the registrant to keep their details private too, and just being useful to the IP owner is not sufficient to justify disclosure. 
	After all, in theory the Provider could decide to respond to the UDRP on behalf of the registrant - and some may well choose to do just that, if the client is particularly keen to keep their identity private. And quite definitely the recipient of a UDRP can choose to voluntarily give up the domain in order to prevent disclosure. So even launching a UDRP is no guarantee of Disclosure. So why should considering a UDRP be grounds for disclosure?

> Disclosure is still needed.    

	Disclosure is desirable to the rights holder. That is not the same as necessary.  

	Regards

		David

>  
> Best,
> 
> Val
> 
> Valeriya Sherman
> Silverberg, Goldman & Bikoff, L.L.P.
> 1101 30th Street, N.W.
> Suite 120
> Washington, D.C. 20007
> Tel 202.944.3300
> Cell 303.589.7477
> vsherman at sgbdc.com
> From: gnso-ppsai-pdp-wg-bounces at icann.org [gnso-ppsai-pdp-wg-bounces at icann.org] on behalf of Phil Corwin [psc at vlaw-dc.com]
> Sent: Tuesday, November 04, 2014 9:43 AM
> To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg at icann.org
> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
> 
> Yes, Graeme, it is quite useful.
>  
> My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that?
>  
> Best, Philip
>  
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
> 202-559-8750/Fax
> 202-255-6172/cell
>  
> Twitter: @VlawDC
>  
> "Luck is the residue of design" -- Branch Rickey
>  
> From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Don Blumenthal
> Sent: Tuesday, November 04, 2014 9:36 AM
> To: Graeme Bunton; gnso-ppsai-pdp-wg at icann.org
> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
>  
> Thanks, Graeme. This summary is very helpful.
> Don
>  
>  
> From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org]On Behalf Of Graeme Bunton
> Sent: Monday, November 3, 2014 10:21 PM
> To: gnso-ppsai-pdp-wg at icann.org
> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
>  
> For my own benefit I thought it useful to try and capture highlights from the recent list discussion.  Apologies if I've mis-characterized any of your arguments.  I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others.
> 
> In general, we're still discussing disclosure.  This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap.
> 
> Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions.  This was, If I am understanding correctly, that we can break down some issues into two groups:
> 
> String issues: problems directly related to the string of characters that constitute a domain name
> Resolved resource issues: problems related to what a domain name is pointed at
> 
> I think it's worthwhile for us to discuss using those terms going forward.
> 
> Re: Allegations of IP Infringement and Disclosure & what constitutes content 
> Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement.  He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing.   Mandatory disclosure does not, to Phil, 'facilitate resolution'.    Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted.  
> 
> We collectively batted this around for a bit, main points being:
> the cost of a UDRP may be a useful gate to prevent abuse
> 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use.
> Disclosure being helpful for the requestor does not by itself justify the disclosure
> UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure
> Disclosure rather than publish may keep the customer for the provider.
> I don't think we resolved much from this discussion, but perhaps it clarified the positions.
> 
> To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap.   Shouldn't an IP rights holder know who they've allowed to use it and for what?  Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy?
> 
> The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light.  It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. 
> 
> Which lastly brings us to the discussion on a moderate central course of action.
> 
> James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others.
> 
> I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back.
> 
> Thanks
> 
> Graeme
> 
>  
> -- 
> _________________________
> Graeme Bunton
> Manager, Management Information Systems
> Manager, Public Policy
> Tucows Inc.
> PH: 416 535 0123 ext 1634 
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