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

[David Cake]

On 6 Nov 2014, at 5:31 am, Kiran Malancharuvil <Kiran.Malancharuvil at markmonitor.com> wrote:

> None of you seem to have read past what you quoted.  Val’s point is that it’s one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith.  At no point does she claim it’s a dispositive factor.  I’m sure that no one here believes that.  Like she explicitly said… lack of response doesn’t conclusively demonstrate rights or lack thereof.  Obviously it doesn’t.  Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made. 
>  
> Perhaps Val’s point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. 

	And I repeat that disclosure would be helpful, but helpful is not necessary. Relay is sufficient to begin a dialogue. 
	It is true that sometimes people may not reply to a request via relay, but you can't force someone to engage in a dialogue. 

> UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. 
	
	Relay is designed specifically to allow a private dialogue without compromising the privacy rights that the PPP customer has paid for. 
	If the possibility of dialogue was prevented entirely, then that might be unduly burdensome, but asking that that initial private dialogue take place in a way that respects the privacy rights that the registrant has paid for, and to which (at this point) there has been no finding to indicate they are entitled to, does not seem unduly burdensome. 

> As you, we and other have pointed out, it’s not just those we have licensed that have a legitimate right to the name, but how do we know if we don’t know who they are/where they are? 

	And as I pointed out - knowing who they are/where they are does not uniquely determine legitimate use, and wanting to know if they have a legitimate use is information that should be useful to the requester, but not information that the customer should be compelled to disclose. 
	(even when a UDRP is filed, the customer is not compelled to disclose if they have a legitimate use - they can always choose not to contest the UDRP and give up the domain, even if they have a legitimate use. It would certainly be unusual for them to do so, but not implausible - there are situations in which choosing to disclose information, which could be used to target other action, might not be preferable to giving up the domain name). 

> You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request.  But the issue should not end there. 

	Indeed. You can initiate a UDRP, for example, which is the action you have been contemplating. 

> I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes.  That’s not the end of the story, there are consequences to those actions.  

	Indeed (though noting only one of those three is a civil matter directly comparable). And those consequences may well be that you choose to initiate a UDRP, and as you point out lack of response to a relay request will not help their case, and may well help contribute to a finding of bad faith (though, as you say, it would be one factor amongst many, lack of response to a relay request would not be sufficient in itself). 

> Perhaps there are consequences to ignoring “legitimate” (whatever we deem that to be) requests for information if certain criteria are met in certain situations.  I am not (at this point) advocating one solution or another.. but I would like to see language that suggests “absolutes” disappear from our discussions.

	If you suggest a specific proposal, I'm sure many people will be interested in looking at it. 

	But all I am saying is that 'it would be helpful to someone contemplating filing a UDRP' is clearly not sufficient cause to overrule the privacy rights the customer has paid for. 

	David 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/attachments/20141106/9ba02d19/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: signature.asc
Type: application/pgp-signature
Size: 455 bytes
Desc: Message signed with OpenPGP using GPGMail
URL: <http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/attachments/20141106/9ba02d19/signature.asc>