[Gnso-ppsai-pdp-wg] An Edited Version of Draft Disclosure Text

[Kathy Kleiman]

All,
The Agenda for our meeting tomorrow appears to set a goal of finishing 
our discussion on Category F-- "Conclude discussion of framework for 
Category F (see attached document)."  While Staff has done a great job 
catching many changes we proposed (tx you!), there are more that have 
been proposed and not objected to. There are even more changes and edits 
that we have not gotten to as we have not yet moved to all topics, 
including Annexes, etc.

Therefore, with respect and concern for the desire to move forward, I 
share a version with the changes we have proposed, and a few that we 
need to propose:

- Section I.B that Providers be allowed to share information about 
Requestors who abuse their system (absent sanctions for abuse, which we 
have not yet defined, this is an alternative protection) -- and earlier 
proposed.
- Section II.A,B,C that Requestors provide the name, address, telephone 
number of the trademark owner as well as his/her/its representative. The 
representative (such as an attorney) may or may not be in the same 
jurisdiction as the trademark or copyright owner, and we don't want to 
track down first the counsel and later the trademark owner. It should 
all be in one place... also, if the signatory is not the Trademark 
Owner, who are they?  As their statement under Penalty of Perjury is set 
out as a protection for the Customer, who they are and under what color 
of authority they represent the IP owner is a key piece of information 
in this process.
- Section III.A that 15 calendar days for a Customer response. We are 
told by groups engaged actively in the reveal process in other areas 
that 15 is really the minimum for receiving, researching, contacting 
experts, and responding. They actually recommend 30 days...
- Section III.C.3 that Provider may act on this own information and 
research in the case Customer does not or is unable to respond (e.g., 
August action and Battered Women's Shelter, Neighborhood Safety Program, 
well-known magazine).
- Section III.C.5  that Provider may adopt the standard of obvious 
clear-cut infringement absent clear or reasonable defense.
- Section III.D adds "lack of" to the full list of pending proceedings 
which, if they are taking place, the Provider may choose not to act 
until completed.
- Section III.G is the proposed new section: Nothing in this proposal 
shall prohibit a Provider from determining the Customer’s use of the 
Service may violate its terms of service and reveal the underlying 
information despite the criteria of this proposal not being met.
- ANNEX: Many questions regarding the Annex, including whether an 
appeals process has been agreed to? If so, it should be balanced, with 
access to both Requestors and Customers, and limited so that Providers 
do not have to face an appeal of each and every decision - but only 
exceptions or controversies passing a high threshold.  This draft tries 
to offer balancing language, but this is an area which we have not 
discussed I would ask the Chairs to spend at least one session on it 
before we finalize language and send it out for public comment.  
Certainly the standard for action in bad faith from the requestor should 
be "knowingly false representations to the Provider," not "knowingly 
false representations to the Provider with intent to deceive." Providing 
"intent to deceive" is an almost impossible standard requiring Providers 
and Customers to know what was in the head and heart of the Requestor. A 
knowingly false statement to the Provider on the few key pieces of 
information a Requestor is asked to provide should be sufficient -- 
especially in a matter as significant as a Reveal -- and sufficiently 
hard for a Provider or Customer to prove...

Everything in "Track Changes." Doc attached.
Best,
Kathy

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