[Gnso-ppsai-pdp-wg] Requester jurisdiction - Agreed Changes Needed to Final Report

[Mary Wong]

Hello Kathy and everyone,

Thanks for the corrections – as it turns out, the change was indeed made to the actual Jurisdiction language of the annex to the Illustrative Disclosure Framework so fortunately the intent of the WG is reflected in that part of the document that was included in the Final Report sent to the GNSO Council earlier today. However, as you noted, the language in the three specific sections of the templates that were added at some point to deal with this topic should also be updated to ensure that there is consistency across the document.

With the confirmation and approval of the WG co-chairs, we will update the Final Report that was sent to the GNSO Council with this clerical correction.

Thanks and cheers
Mary


Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: mary.wong at icann.org
Telephone: +1-603-5744889


From: Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>
Date: Monday, December 7, 2015 at 21:18
To: "gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>" <gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>>, Graeme Bunton <gbunton at tucows.com<mailto:gbunton at tucows.com>>, "Metalitz, Steven" <met at msk.com<mailto:met at msk.com>>, "Don M. Blumenthal" <dmb at donblumenthal.com<mailto:dmb at donblumenthal.com>>, Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>, Chris Pelling <chris at netearth.net<mailto:chris at netearth.net>>
Subject: Fwd: Requester jurisdiction - Agreed Changes Needed to Final Report

Hi All,
Currently, and unfortunately, the final report does not reflect the agreement of the WG on the jurisdictional issues. I trust this can be corrected quickly -- and to that end I outline the "fixes" below. I write this atop the message circulated by Chris in which the original language was circulated, and its rationale explained. This set of changes was accepted by the WG on our last call, as I am sure everyone remembers.

Bold shows the additions we agreed to.  (Note: formatting is not perfect, but text and numbering are correct...)

Please note that four (4) sections have changes below - 3 are in the Request templates and 1 is in Annex 1, the Jurisdiction paragraph (at the end of our document).

Best, Kathy
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Annex B

II. Request templates for Disclosure

A. Where a domain name allegedly infringes a trademark


6(c) Agrees that Requester and the trademark holder will submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) where it is incorporated (or of its home address, if an individual), AND (2) where the Provider specifies on its request form, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s and/or trademark holder’s knowing misuse of information disclosed to it in response to its request.

B. Domain name resolves to website where copyright is allegedly infringed

                7(d)Agrees that the Requester and copyright holder will submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) where it is incorporated (or of its home address, if an individual), AND (2) where the    Provider specifies on its request form, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s and/or copyright holder’s knowing misuse of  information disclosed to it in response to its request.

                C. Domain name resolves to website where trademark is allegedly infringed

                6(c) Agrees that the Requester and trademark holder will submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) where it is incorporated (or of its home address, if an individual), AND (2) where the Provider specifies on its request form, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s and/or the trademark holder’s knowing misuse of information disclosed to it in response to its request.


Annex 1 To Disclosure Framework: Resolving Disputes Arising From Disclosures Made As A Result Of Allegedly Improper Requests

Jurisdiction:

In making a submission to request disclosure of a Customer’s contact information, the Requester and rights holder agree [delete the "s"]  to submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) where it is incorporated (or of its home address, if an individual), AND (2) where the Provider specifies on its request form, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s and/or rights holder’s knowing misuse of information disclosed to it in response to its request.


-------- Forwarded Message --------
Subject:        [Gnso-ppsai-pdp-wg] Requester jurisdiction
Date:   Fri, 27 Nov 2015 14:51:37 +0000 (GMT)
From:   Chris Pelling <chris at netearth.net><mailto:chris at netearth.net>
To:     gnso-ppsai-pdp-wg <gnso-ppsai-pdp-wg at icann.org><mailto:gnso-ppsai-pdp-wg at icann.org>



Good afternoon all,



I mentioned in last weeks chat section on the PPSAI call about binding the requester jurisdiction and the requester to the same as the IP owner, to that end, I put forward the following changes to the final report.



Let me give an example :



Requester sends in a request they have no right too, or operated past their authority with a Rights Holder.



  1.  Someone you have already worked with before, but they no longer have the authority.
  2.  A lawyer (or IP person) has sent in a request, where on the face of it looks ok, and after doing a little googling to make certain confirmations that they were linked, well unbeknown to google, the IP rights holders sacked/terminated the requester’s services.



-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------:

1) Annex 1 To Disclosure Framework: Resolving Disputes Arising From Disclosures Made As A Result Of Allegedly Improper Requests

Notes:
***

Jurisdiction:

In making a submission to request disclosure of a Customer’s contact information, the Requester and rights holder agrees [change to agree] to submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) where it is incorporated (or of its home address, if an individual), AND (2) where the Provider specifies on its request form, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s and/or rights holder’s knowing misuse of information disclosed to it in response to its request.

----------

2) Equivalent edits to all three Request Templates, e.g.,
II, A, 6:

  1.  c) Agrees that the Requester and trademark holder will submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) where it is incorporated (or of its home address, if an individual), AND (2) where the Provider specifies on its request form, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s and/or trademark holder’s knowing misuse of information disclosed to it in response to its request.







Can we please discuss the above as the first agenda item of the call once the usual prerequisites are done (role call, SOI etc) if there are any objections, otherwise, no need too and lets get the above into the final report.



Thanks and regards,


Chris






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