[Gnso-ppsai-pdp-wg] Revised Reveal Doc
Volker Greimann
vgreimann at key-systems.net
Thu Apr 2 17:05:58 UTC 2015
Hi Todd,
not having discussed this with anyone else, I'd feel more comforable
with language along the lines of:
“that the Customer has provided, or the Provider has found,
specificinformation, facts and/or circumstances indicating that the
Requestor’s trademark or copyright complaint is a pretextual means of
obtaining the Customer’s contact details mainlyfor the purpose of
contravening the Customer’s privacy.”
Solely is too strong, and needs to be toned down as even a partial
connection to a potential violation would otherwise close this door.
I removed human rights as this is mainly about privacy.
Showing was also toned down to indicating. The provider is not a court,
he cannot make legal determinations, but he can accept indications.
Finally, information was added to facts and circumstances, as again, the
provider cannot make factual decisions in every case and should be able
to rely on information.
VG
VG
Am 02.04.2015 um 18:15 schrieb Williams, Todd:
>
> Following on our call on Tuesday, I’ve tried to incorporate the
> changes that others suggested to the language for III(C)(5) that I had
> proposed last week. New language below (changes in red). Let me know
> if I didn’t capture any of what we discussed:
>
> “that the Customer has provided, or the Provider has found,
> specificfacts and circumstances showing that the Requestor’s trademark
> or copyright complaint is a pretextual means of obtaining the
> Customer’s contact details solely for the purpose of contravening the
> Customer’s human rights (e.g., freedom of expression).”
>
> Also, just to reiterate what I mentioned on the call: yes, I did
> intend this new language in III(C)(5) to replace the old language in
> III(C)(5) (on the “slam dunk” standard) and the previous draft
> appendix on human rights. For the reasons that I mentioned on the
> call and below, I think that this language more exactly and
> unambiguously addressesthe concerns that we’ve been discussing,
> without otherwise disrupting the balance that the draft proposal has
> attempted to strike.
>
> Todd.
>
> *From:*Kathy Kleiman [mailto:kathy at kathykleiman.com]
> *Sent:* Monday, March 30, 2015 1:06 PM
> *To:* Williams, Todd; Kiran Malancharuvil;
> gnso-ppsai-pdp-wg at icann.org; Metalitz, Steven; Graeme Bunton
> *Subject:* Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>
> I have been mulling over the wording that Todd proposed on Friday. I
> think it should be evaluated alongside the standard we were evaluating
> (a "clear and convincing") as a reason for disclosure -- and I would
> like to hear what the Providers think. But I think it advances our
> discussion... tx Todd!
>
> Kathy
>
> On 3/27/2015 5:45 PM, Williams, Todd wrote:
>
> All:
>
> I wanted to follow-up on the point that I raised below and in our
> call on Tuesday. To reiterate: I think that III(C)(5) can be more
> precisely drafted to address the concern that we’re dealing with –
> which, as I understand it, is the risk that pretextual complaints
> may be brought for the purpose of violating at-risk users’ human
> rights. Assuming that is the risk that we’re trying to mitigate,
> what does everybody think of this proposed draft language:
>
> C. Disclosure can be reasonably refused for reasons consistent
> with the general policy stated herein, including but not limited to:
>
> (5) that the Customer has provided, or the Provider has
> found, specific evidence demonstrating that the Requestor’s
> trademark or copyright complaint is a pretextual means of
> obtaining the Customer’s contact details for the purpose of
> contravening the Customer’s human rights.
>
> Again, I think that more exactly and unambiguously addresses the
> risk that we’ve been discussing in the various hypothetical
> scenarios that Kathy and others have put forward. But I’m happy
> to discuss further on Tuesday. Thanks as always.
>
>
> 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
> *Williams, Todd
> *Sent:* Monday, March 23, 2015 4:20 PM
> *To:* Kiran Malancharuvil; Kathy Kleiman;
> gnso-ppsai-pdp-wg at icann.org <mailto:gnso-ppsai-pdp-wg at icann.org>;
> Metalitz, Steven; Graeme Bunton
> *Subject:* Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>
> Yes, thank you Kathy for circulating. Two initial quick thoughts
> that I wanted to circulate to the WG now before the call (though
> like Kiran, I'd want to reserve comment on other portions as I
> review):
>
> ·The more that I’ve thought about III(C)(5), the more I think it’s
> a poor fit for what we’re trying to address. As I understand it
> from the hypotheticals that we’ve discussed, the concern is that
> complainants with improper motives will use pretextual complaints
> to seek disclosure against vulnerable or otherwise at-risk
> beneficial users. But III(C)(5) doesn’t really address pretext or
> the subjective motives of the complainant at all. Rather, it
> simply outlines the standard to be used in all cases. Perhaps
> having a higher standard could weed out some pretextual
> complaints. But not necessarily.
>
> 1)We could certainly think of hypotheticals where the complainant
> may have pretextual or improper motives, but still puts forward a
> claim that on its face passes the III(C)(5) standard.
>
> 2)On the other side, I’m sure we could also think of hypotheticals
> where the complainant has completely pure motives, but still has
> one or two parts of its trademark or copyright claim that it’s
> still trying to pin down (in fact, that may be the very reason why
> it is seeking information on who the beneficial owner is).
>
> I think III(C)(5) as currently drafted allows for disclosure in
> (1) but not (2) – which seems backwards to me. In other words, if
> we’re trying to fight pretext, let’s fight pretext. As it is, I
> think the draft already does a good job of that:
>
> 1)I(B)(v) contemplates revoking access for having filed a
> pretextual complaint.
>
> 2)I(B)(vi) contemplates Providers sharing information about
> pretextual complaints.
>
> 3)II(A)(7), II(B)(7), and II(C)(7) all contemplate that complaints
> will be submitted under penalty of perjury (with all of the
> deterrence against pretext that goes with that).
>
> 4)The entire Annex outlines possibilities for handling disputes
> that arise from pretextual complaints.
>
> If we want to discuss as a WG whether the draft should do more on
> pretext, or perhaps add some language about pretext to III(C)(2)
> or III(C)(3), we can. But I think that trying to fit that square
> peg (pretext concerns) into a round hole (the III(C)(5) standard)
> isn’t the best way to do it.
>
> ·I like your edits Kathy to III(D), but can we as a WG agree to
> remove the brackets from III(D)? I’m not quite sure why it’s
> still bracketed. We’re already editing it (which seems pointless
> if it might just go away). And without III(D), the entire rest of
> the document – which we’ve now spent weeks trying to get to a
> place approaching consensus – is moot.
>
> Thanks as always.
>
>
> Todd.
>
> -----Original Message-----
> 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 Kiran
> Malancharuvil
> Sent: Monday, March 23, 2015 2:23 PM
> To: Kathy Kleiman; gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>; Metalitz, Steven; Graeme Bunton
> Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>
> Hi Kathy,
>
> Thanks for forwarding this to the group, and special thanks for
> forwarding with enough time to review before the call!
>
> We can certainly discuss in more depth on the call tomorrow, but I
> am not a fan of the changes in Section II. I'm concerned about
> the level of minutiae in the language, and I'm wondering how and
> why that level of micromanagement will be helpful/probative
> information to the Service Provider. In very large companies, the
> trademark owner/president/VP/partner, etc. isn't actually involved
> directly in the enforcement activity. It should be enough to
> demonstrate agency, as the previous language did.
>
> Perhaps I will have more later, but I wanted to float that to the
> group before the call.
>
> Thanks,
>
> Kiran
>
> Kiran Malancharuvil
>
> Policy Counselor
>
> MarkMonitor
>
> 415.222.8318 (t)
>
> 415.419.9138 (m)
>
> www.markmonitor.com <http://www.markmonitor.com>
>
> -----Original Message-----
>
> 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 Kathy
> Kleiman
>
> Sent: Sunday, March 22, 2015 11:19 AM
>
> To: gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>; Metalitz, Steven; Graeme Bunton
>
> Subject: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>
> Hi All,
>
> Steve and I talked on Friday, and he asked me to circulate a
> Revised Reveal document -- which is attached. This document has
> three types of changes based on our discussion last Tuesday and
> subsequent research:
>
> 1. To the title (reset pending further discussion) 2. To Section
> II, the Request Templates to clarify the requester and his/her
> direct knowledge of the alleged infringement and legal authority
> to represent the Requester, and 3. Annex (reset to original
> pending discussion with drafters over the narrow goals and intents
> of this section)
>
> All other edits remain - to continue our excellent discussion of
> high standards for disclosure, human rights issues, etc. There is
> also much to discuss regarding follow-up processes (after the
> Request) including
>
> a) when are appeals allowed and for whom, and b) how does a
> Provider challenge an alleged "wrongful disclosure" of its
> Customer's information?
>
> Best and have a good rest of weekend,
>
> Kathy
>
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--
Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
Mit freundlichen Grüßen,
Volker A. Greimann
- Rechtsabteilung -
Key-Systems GmbH
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