[Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E

Wed Apr 15 20:04:14 UTC 2015

Hi Kathy,

Thank you for your question. Our language is meant mainly to streamline and clarify the existing standards.

III.B.2 previously provided that the Provider had to "state to Requestor in writing or by electronic communication its reasons for refusing to disclose." Section III.E provided that "If refusal to disclose is based on objection to disclosure by the Customer, Requestor must be informed of the reasons for objection." The new language consolidates them into one provision, eliminating redundancies and III.E. The new consolidated provision provides that regardless of where the reasons for refusing to disclose came from--the Customer or the Provider--the Provider would have to inform the Requestor of those reasons. The addition of the term "specific" is intended to express the idea that a reason for refusal cannot be a general, conclusory statement, such as "No, because Customer has a defense."  The standards give providers a lot of discretion to reject requests, but to be fair, the refusal should clearly apprise the requestor of the reasons for it.

Regarding III.C.3, the provision as is appears to allow the Provider to refuse disclosure based on any “adequate reason,” which is too vague, (and not what we believe we intended as a group). The remaining language proposed for III.C.3 is thus merely intended to clarify this provision and reflects a mirror image of the requirements for the Requestor: that it must provide a "basis for reasonably believing" there is 1) an infringement that is 2) not defensible. The new language simply clarifies that a Provider can reject the request when it concludes that either one or the other criterion has not been met. And as Vicky pointed out, C.5 provides an additional ground for rejection.

Best,
Val

Valeriya  Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law

202-973-2611 phone
202-263-4326 fax
www.sgrlaw.com<http://www.sgrlaw.com>
vsherman at sgrlaw.com<mailto:vsherman at sgrlaw.com>

1055 Thomas Jefferson Street, N.W.
Suite 400
Washington, D.C. 20007

Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office.
She is not admitted in the District of Columbia.

[cid:imageaf33fb.JPG at 47340308.46ada7c8]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP

________________________________
From: gnso-ppsai-pdp-wg-bounces at icann.org [gnso-ppsai-pdp-wg-bounces at icann.org] on behalf of Victoria Sheckler [Victoria.Sheckler at riaa.com]
Sent: Wednesday, April 15, 2015 1:35 PM
To: Kathy Kleiman; gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E

We think Val’s approach is more reasonable, and consistent with the template requirements.  Note c.5 deals w/ pretext, and the draft already provides p/p providers with a lot of discretion. I support Val’s approach.

From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kathy Kleiman
Sent: Wednesday, April 15, 2015 10:02 AM
To: gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E

Hi Val,
Thank you for new language as we work to close the report for publication. May I ask a few questions?

In III.B.2 - the change from [existing] (2)  state to Requestor in writing or by electronic communication its reasons for refusing to disclose to
[new/proposed] (2) state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose --

seems to raise the bar on the response of the Provider to the Requestor -- and there may be many Requests!  So let me as, what are you thinking of in terms of the "specific reasons" that a Provider might have to give?  How extensive or detailed would you like their answers to be?

Re: III.C.2 and 3 I think the existing language is quite good -- with apologies, because I know the genuine good will in which the changes are offered, bringing in a Customer's "belief" and the Providers "belief" seems a little ambiguous and hard to prove.

I look forward to looking at III.B.2 with you... but re: III.B.3, I think we had pretty good agreement on the existing language and these new proposals may result is a lot of additional work and discussion.

Best,
Kathy
1.

On 4/14/2015 4:12 PM, Sherman, Valeriya wrote:
PPSAI Team:

Given that we are getting ready to publish the initial report, we’d like to propose the following, hopefully non-contentious suggestions to III.B, C, and E.

We look forward to your thoughts.

B.            …

(1)                …

(2)                state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose.

(3)                …

C.            Disclosure can be reasonably refused, for reasons consistent with the general policy stated herein, including, but not limited to any of the following:

(1)                …

(2)                the Customer has objectsed to the disclosure and has providesd [adequate sufficient] reasons against disclosure, including without limitation a reasonable defense for its use of the trademark or copyrighted content in question for believing (i) that it is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that its use of the claimed intellectual property is defensible;

(Note: This language tracks the Requestor’s standards warranting disclosure, and is the opposite side of the same coin.)

(3)                the Provider has found provides [adequate sufficient] reasons against disclosure for believing (i) that the Customer is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that the Customer’s use of the claimed intellectual property is defensible;

(4)                …

(5)                …

…

E.       If refusal to disclose is based on objection to disclosure by the Customer, Requestor  be informed of the reasons for objection.  (Could be consolidated with III B (2)).

Valeriya  Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law

202-973-2611 phone
202-263-4326 fax
www.sgrlaw.com<http://www.sgrlaw.com>
vsherman at sgrlaw.com<mailto:vsherman at sgrlaw.com>

1055 Thomas Jefferson Street, N.W.
Suite 400
Washington, D.C. 20007

Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office.
She is not admitted in the District of Columbia.

[cid:image001.jpg at 01D07780.F4A11120]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP

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