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

Tue Sep 30 22:21:09 UTC 2014

Thank you Kathy.  Just one quick point of clarification on an issue where I think that you and I may agree (but which I just wanted to make explicit):

I'm not arguing that in the cybersquatting abuse case disclosure should only come after a UDRP has been filed.  Perhaps that is a good time for it, but it shouldn't be the only time.  In other words, filing a UDRP should not be a prerequisite for disclosure, for at least three reasons: 1) the complainant shouldn't have to pay for a UDRP just to get disclosure; 2) perhaps disclosure will lead to a negotiated resolution (which should be preferable to adjudication); and 3) such a rule would be putting the cart before the horse (in that, in some cases - but not all - it may be difficult for the complainant to fully assess the merits of its UDRP claim without knowing the identity of the beneficial user).

This last point is one that has relevance beyond just the UDRP context.  Many of the judgments/analyses that we've been discussing can be difficult for a complainant to make in the absence of any information on the identity of the beneficial user:

*         We've discussed jurisdiction - but it's easy to think of fact patterns where the identity or contact information of the beneficial user may be relevant to the jurisdictional analysis.

*         We've discussed fair use - but it's easy to think of fact patterns where the identity of the beneficial user may be relevant to the fair use analysis.

*         We've discussed cybersquatting - but it's easy to think of fact patterns where the identity of the beneficial user may be relevant to the bad faith analysis.

And so on.  Just something to keep in mind: p/p services by definition introduce information asymmetries that are not present otherwise (perhaps in some cases for good reasons - that's not really my point).  In discussing something like how high a disclosure standard should be, we can't forget that: we can't set up a system where in order to get certain information you have to allege something or do something that assumes you already have that information.

Todd.

From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kathy Kleiman
Sent: Tuesday, September 30, 2014 9:34 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>

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