[Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns
Stephanie Perrin
stephanie.perrin at mail.utoronto.ca
Tue Mar 3 02:25:18 UTC 2015
Well said. Looking forward to the discussion tomorrow.
Stephanie Perrin
On 2015-03-02 20:20, Holly Raiche wrote:
> First -a big thanks to Kathy for the comments. Next, a big thanks to
> Steve and Graeme for the paper. Between both inputs, there is both
> plenty to discuss, but possible avenues for ways forward in what are
> thorny issues for all of us
>
> Holly
> On 3 Mar 2015, at 9:59 am, Kathy Kleiman <Kathy at kathykleiman.com
> <mailto:Kathy at kathykleiman.com>> 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
>>
>>
>> On 3/2/2015 9:54 AM, Metalitz, Steven wrote:
>>> PPSAI WG members,
>>> Attached please find an updated version of the document Graeme and I
>>> circulated prior to last week’s meeting. This updated version
>>> includes three or four wording tweaks, intended to reflect the
>>> discussion on last week’s call. Looking forward to further
>>> discussion on tomorrow’s call.
>>> Steve Metalitz
>>> *From:*<Metalitz>, Steven <met at msk.com <mailto:met at msk.com>>
>>> *Date:*Monday, February 23, 2015 at 11:57
>>> *To:*"'PPSAI (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>>
>>> *Subject:*Re: [Gnso-ppsai-pdp-wg] Category F -- updated status
>>> report and text for discussion
>>>
>>> PPSAI WG members,
>>> This follows up on our note of Feb. 3 providing a status report
>>> on subgroup discussions among some IP interests and p/p service
>>> providers regarding p/p disclosure standards. To reiterate, the
>>> group’s work is not meant to obviate or displace the work of the
>>> larger PPSAI WG on this issue – rather, it is meant to
>>> constructively contribute to the discussion by producing one
>>> proposal on this issue for the larger group’s consideration.
>>> In light of further consideration and of the need to move
>>> forward the WG discussion on Category F, we present the attached
>>> document that we hope will help provide a framework for
>>> discussion of the disclosure issue in the WG. We emphasize that
>>> this is not a proposal from IPC, the Registrar Stakeholder
>>> Group, or any subset of either, and that we fully anticipate the
>>> text to be modified and improved through further discussion at
>>> the WG level. (We also acknowledge that the WG may find the
>>> proposal wholly unsatisfactory but hope that it will at least
>>> help advance debate.)
>>> The attached is put forward as a starting point, to use
>>> intellectual property infringement complaints as one
>>> illustrative example of minimum disclosure standards, in a
>>> framework that addresses (1) a service provider process for
>>> intake of requests; (2) general templates that requests would
>>> have to meet in order to trigger service provider action; and
>>> (3) principles governing service provider action in response to
>>> a conforming request.
>>> We look forward to the discussion of this document among WG
>>> members.
>>> Graeme Bunton
>>> Steve Metalitz
>>> *From:*Metalitz, Steven
>>> *Sent:*Tuesday, February 03, 2015 3:57 PM
>>> *To:*PPSAI (gnso-ppsai-pdp-wg at icann.org
>>> <mailto:gnso-ppsai-pdp-wg at icann.org>)
>>> *Subject:*Category F -- status report
>>> Dear WG colleagues,
>>> As you know, several PPSAI Working Group members, including
>>> representatives of the IPC and privacy and proxy service
>>> providers, have endeavored to develop a collaborative proposal
>>> on the minimum standards for disclosure (Category F). The
>>> group’s work is not meant to obviate or displace the work of the
>>> larger group on this issue – rather, it is meant to
>>> constructively contribute to the discussion by producing one
>>> proposal on this issue for the larger group’s consideration.
>>> This is an update on this sub-group’s progress.
>>> But first, a little background: At the face-to-face meeting of
>>> the PPSAI Working Group in Los Angeles on October 10, 2014, one
>>> important topic was minimum standards for disclosure of contact
>>> information of customers of privacy/proxy services who may or
>>> may not be using their private domain name registrations to
>>> carry out infringing or other abusive activities.
>>> Prior to the face-to-face meeting, IPC participants in the
>>> Working Group circulated a proposal on this topic. A responsive
>>> redline was circulated to the WG by Volker Greimann.
>>> Following extensive discussion of these proposals and of the
>>> topic in general at the face-to-face meeting, a sub-group of WG
>>> participants have continued this discussion. The sub-group
>>> includes participants from the IPC and privacy/proxy service
>>> providers. Meeting by teleconference and working over e-mail,
>>> the sub-group has sought to develop a text that could be jointly
>>> presented to the PPSAI Working Group as a framework for further
>>> discussion on the issue of standards for disclosure.
>>> Some progress has been made, and the sub-group is continuing its
>>> efforts with the goal of producing a document for presentation
>>> to the PPSAI Working Group as soon after the Singapore ICANN
>>> meeting as feasible. If such a document is completed, it is
>>> hoped that it would be a constructive contribution to eventual
>>> WG approval of a set of recommendations on “Category F” for
>>> inclusion in the Draft Report of the WG.
>>> Unlike the documents discussed by the full WG last October, the
>>> framework under discussion does not purport to establish a
>>> single general policy for when disclosure of contact information
>>> in cases of alleged abusive activities would be available.
>>> Instead, it seeks to focus more narrowly on intellectual
>>> property infringement complaints as one illustrative example of
>>> minimum disclosure standards. The framework would describe (1)
>>> a service provider process for intake of requests; (2) general
>>> templates that requests would have to meet in order to trigger
>>> service provider action; and (3) principles governing service
>>> provider action in response to a conforming request. While
>>> considerable progress has been made in the first two areas, a
>>> number of critical issues remain to be resolved in the third
>>> area, and discussion has not been concluded on any of the areas.
>>> The expressed common goal of the discussion group participants
>>> is a framework that would give requestors a higher degree of
>>> certainty and predictability as to if, when and how they could
>>> obtain what level of disclosure; that would preserve for service
>>> providers a sufficient degree of flexibility and discretion in
>>> acting upon requests for disclosure; and that would include
>>> reasonable safeguards and procedures to protect the legitimate
>>> interests of customers of accredited proxy/privacy service
>>> providers. Of course, balancing these interests is the
>>> difficult task before our working group. As stated, participants
>>> in the discussion group hope to be able to make a constructive
>>> contribution to the WG’s efforts to do so.
>>> Graeme Bunton
>>> Steve Metalitz
>>>
>>>
>>>
>>> _______________________________________________
>>> Gnso-ppsai-pdp-wg mailing list
>>> Gnso-ppsai-pdp-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
>>
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