[Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns

[Don M. Blumenthal]

Kathy,

Thanks very much for taking the time to post your thoughts. They should
be very helpful in generating discussion tomorrow and in online
conversations.

Best,

Don

On 3/2/2015 5:59 PM, Kathy Kleiman wrote:
>
> Hi All,
>
> First, thank you, Steve, Graeme and All. I know a lot of people have
> spent a lot of time in the IP and Registrar Communities working on
> this draft. Tx you – and appreciate your invitation to comments and
> concerns!
>
> I have reviewed the Draft carefully and have some initial comments to
> share.  Although I spoke with people in the WG while preparing them,
> these comments are my own.(If there is problem with the formatting
> below, please let me know.)
>
> 1.       General Comments
>
> a.       `Let’s make the wording more neutral. Let’s add “alleged” or
> “claimed” in all references of infringement (e.g., trademarks,
> copyrights of domain names/websites. Another good term would be
> “claimed infringement” -- which is the one used in similar sections of
> the Digital Millennium Copyright Act to the sections we are working on
> here. 
>
>  
>
> 2.       More substantive comments
>
> a.       Are we missing levels of protections for the
> Customer/Registrant?  In the Digital Millennium Copyright Act (DMCA),
> there were two levels of protections for the “users.” 
>
>                                                                i.     
> The first was sanctions for misrepresentation. Basically, any company
> which knowingly materially misrepresents that material or activity is
> infringing is liable for damages, including costs and attorney fees
> caused from injury resulting from the misrepresentation. Don’t we need
> similar sanctions here?
>
>  
>
>                                                              ii.     
> A much higher bar for revealing the identity of the alleged infringer.
> The DMCA allows rapid takedown based on statements very similar to the
> one we proposing, but Reveal is a whole different story.  The standard
> is much higher and goes through Court. Thus US Copyright Code, Sec
> 512(h), requires a subpoena to reveal data:
>
> a.       [Section 512] “(h) SUBPOENA TO IDENTIFY INFRINGER-
>
> `(1) REQUEST- A copyright owner or a person authorized to act on the
> owner's behalf may request the clerk of any United States district
> court to issue a subpoena to a service provider for identification of
> an alleged infringer in accordance with this subsection…
>
>  
>
> Shouldn’t we have a higher standard too?  It seems important to
> balance the rights of both sides, including whether the Allegation of
> Illegality sufficiently outweighs the Privacy Interests and Rights of
> the Battered Women’s Shelter, Online Magazine or Bloggers posting
> unpopular views of corruption. 
>
>  
>
>                                                           iii.      A
> deep concern about default. As I read the rules, if you don’t respond,
> you lose and your data is revealed.  But this is a problem because we
> can think of many reasons why Customers/Registrants would not respond.
> For example:
>
> a.       Request came at the beginning of August,
>
> b.      Request disappeared into spam;
>
> c.       Registrant/Customer is unable to respond (perhaps language
> barriers); and/or
>
> d.      Registrant/Customer is scared to respond.
>
>  
>
> 2.      I would submit that in something as important as revealing
> identity and physical locations, there should be no automatic default.
> It is completely possible that a) the allegations are incorrect on
> their face (no jurisdictional overlap, for example), or b) that there
> are clear defenses on “its face,” e.g., on the website.
>
>  
>
> Thus, an anti-bullying group may post the copyrighted logo of a gang
> engaging in bullying (or worse) in a local school or neighborhood; is
> so, the gang’s allegation of copyright infringement could be clearly
> weighed against the “safe neighborhoods for all” activity taking place
> on the website.
>
>  
>
> Similarly, an online publication in Europe may have every right to use
> the logo and trademark of a large multinational it is criticizing, or
> the image of Mohammed, without having its identity and address
> revealed without due process.
>
>  
>
> Ditto for a battered women’s shelter posting a copyright logo, motto
> or design and urging women to watch for it and those bearing it.
>
>  
>
> Due process is not automatic default, but a full and fair review of
> the website and other reachable information, even if the
> Customer/Registrant is unable to respond for herself or himself.
>
>  
>
> 3.       Option: we might consider Third Party or Independent Review.
> This is something that Steve and Graeme’s draft have already suggested
> for rejections of IP Owner Requests. It could serve Customers too by
> creating a review of default situations – or perhaps an independent
> forum for Service Providers who choose to outsource this difficult
> evaluation.  
>
>  
>
>                                                            iv.     
> Privacy of communication between Customers and their Providers . The
> rules of Section III(A) seem to bar private communication with your
> Provider. Everything a Customer/Registrant might write to their
> Provider must be passed on verbatim (if I read this correctly).  But
> that’s a problem for those with English as a second language (or
> third) or those without lawyers, and those simply trying to explain in
> clear and informal language to explain this situation. 0What will
> happen, I am concerned, is that whatever informal response a Customer
> provides to its Provider will operate (unintended) as an Admission
> Against Interest or an unintended Waiver.   
>
> Further, the Customer/Registrant might inadvertently reveal a bit
> about their identity or even location – trying to explain their
> position clearly to the Provider – and this should not be passed on to
> the Requester automatically either.  I am not sure of th answer here
> as IP Owners should know something about the response, but not
> necessarily the full communication of the Customer (e.g., he is
> stalking me).
>
> Thanks for reading! 
>
> Best,
>
> Kathy
>

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