[Gnso-ppsai-pdp-wg] Compilation of P/P provider responses

Tue Sep 30 22:12:38 UTC 2014

We also agree with the points raised by Todd and Kathy below. Disclosure to a Requestor would avoid the more drastic result of Publication associated with the filing of a legal action, which could have negative consequences for all parties.

To echo Todd's point below, Disclosure would help to avoid unnecessary(and expensive) arbitration or litigation. In the context of IP rights enforcement, where many rights are territorial in nature, disclosure of registrant contact information may be essential for a Requestor to properly analyze whether a cause of action exists or further proceedings are merited. In other words, filing a UDRP or a court action without this information is putting the cart before the horse -- it entangles all three parties (Customer, P/P Provider, and Requestor) in potentially premature legal action, that could very well have been avoided through disclosure of Customer information (e.g., jurisdiction) and/or direct communication between Customer and Requestor.

Moreover, we should keep in mind that many Requestors will be smaller businesses and organizations, for which bringing an expensive action without essential facts that could be obtained through Disclosure would be extremely burdensome, potentially to the point where they would be unable to protect their rights against some infringers -- a result fraught with anti-competitive and anti-consumer implications. An effective and fair accreditation regime should aim to prevent such a result.

Thanks,
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<mailto:vsherman at law.gwu.edu>

________________________________
From: gnso-ppsai-pdp-wg-bounces at icann.org [gnso-ppsai-pdp-wg-bounces at icann.org] on behalf of Kathy Kleiman [kathy at kathykleiman.com]
Sent: Tuesday, September 30, 2014 9:33 AM
To: gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] Compilation of P/P provider responses

A Belated +1 to Todd's thoughtful analysis below.

Although #1 (publication) does seem to be the default for some re: UDRP filings, it does seem to be intrinsically unfair to publish a Registrants personal/organizational data to the world without at least a *finding* of actual wrongdoing (not the filing of the complaint in and of itself -- what happens if it is a Reverse Domain Name Hijacking decision, or a previous business partner sharing rights to the same name...??)

Here, I think disclosure to the Complainant and the Forum would be sufficient to meet the needs of the Complainant, and provide information that can be used for both the formal dispute and perhaps an informal resolution.

I think Todd lays it out far more eloquently below...
Best,
Kathy

:
Thanks Mary.  One thought for the group to consider (happy to discuss in more detail on the call):

Reviewing the attached, it seems as if there are basically two alternatives for us to debate when it comes to disclosure in the context of cybersquatting and UDRPs (setting aside for now that there are many abuses other than cybersquatting where disclosure may be relevant):

1)      One alternative is for the p/p provider to simply funnel those kinds of complaints into a UDRP.  This approach basically skips “disclosure” and goes straight to “publication” – the attached points out that most providers will publish all contact information to the world once a UDRP is filed.

2)      The other alternative would require disclosure to the complainant under certain enumerated circumstances where the complainant provides enough information to meet certain prima facie elements (and makes certain averments under penalty of perjury).

Based on the attached, it seems that Option (1) is currently the more common approach.  But going forward, isn’t Option (2) much better for the consumers/beneficial users who purchase p/p services?  As Kathy and others have rightly mentioned, publication (to the world) is a more extreme deviation from the beneficial user’s privacy expectations than is disclosure (to a single complainant).  So why would we adopt an accreditation regime that skews the process toward the more drastic result?
 f
One other thought on this: in many cases disclosure may obviate the need to file a UDRP at all.  Maybe the complainant can contact the beneficial user to negotiate a resolution.  Or maybe learning the beneficial user’s identity will cause the complainant to question its original analysis that the domain name was being used in bad faith.  Whatever the reason, I would assume that avoiding a UDRP is almost always going to be the better option for ALL parties involved:

·         The complainant gets to save the money that it would otherwise spend on a UDRP.

·         The beneficial user gets to avoid the more drastic result of publication to the world.

·         The p/p provider gets to avoid being named as a respondent in a UDRP proceeding (which James noted on our call can be problematic), and may get to keep a paying customer that it would otherwise lose once the UDRP is filed and the contact information is published to the world.

So if everybody is better off under Option (2) than Option (1), what I am missing?  What is the argument for Option (1)?  And why is it the more common approach used today (at least, according to the responses compiled in the attached)?

Thanks.

Todd.

From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Mary Wong
Sent: Thursday, September 25, 2014 7:36 PM
To: PPSAI WG
Subject: [Gnso-ppsai-pdp-wg] Compilation of P/P provider responses

Dear WG members,

Please find attached a document that staff has compiled of P/P provider responses to the 5 questions posed by the WG chairs to the group after the call last week, as follows:

1. What are provider practices regarding customer notification when a disclosure request is received, and is the customer given the opportunity to respond?

2. Does any provider offer its customer an option other than disclosure or publication, e.g. an opportunity to cancel the registration instead (i.e. what some WG members have mentioned as a “takedown”)?

3. What are provider “standards" for determining disclosure to third parties?

4. Can providers give the WG some general information about the percentage of requests for disclosure that are successful?

5. For Q4, do providers also have information about the type of claims those relate to e.g. If they are from LEA, 3P IP claim etc.?

Please let me know if I have mischaracterized or omitted any response that you may have sent (for which I offer my apologies!). If you have not yet provided a response and are in a position to do so, or if you’d like to add to a response you’d provided previously, please send it along and I’ll make sure it gets added to this document.

Finally, please note that certain actual provider terms of service obtained from a sample of providers had previously been compiled as part of the draft template for this Category F, so that may also be helpful – these are available on the WG wiki here: https://community.icann.org/x/QwbxAg.

Thanks and cheers
Mary

Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers (ICANN)
Telephone: +1 603 574 4892
Email: mary.wong at icann.org<mailto:mary.wong at icann.org>

_______________________________________________
Gnso-ppsai-pdp-wg mailing list
Gnso-ppsai-pdp-wg at icann.org<mailto:Gnso-ppsai-pdp-wg at icann.org>
https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/attachments/20140930/74a2f54c/attachment.html>