[Gnso-ppsai-pdp-wg] Revised Reveal Doc

Mon Mar 23 20:20:02 UTC 2015

Yes, thank you Kathy for circulating.  Two initial quick thoughts that I wanted to circulate to the WG now before the call (though like Kiran, I'd want to reserve comment on other portions as I review):

*         The more that I've thought about III(C)(5), the more I think it's a poor fit for what we're trying to address.  As I understand it from the hypotheticals that we've discussed, the concern is that complainants with improper motives will use pretextual complaints to seek disclosure against vulnerable or otherwise at-risk beneficial users.  But III(C)(5) doesn't really address pretext or the subjective motives of the complainant at all.  Rather, it simply outlines the standard to be used in all cases.  Perhaps having a higher standard could weed out some pretextual complaints.  But not necessarily.

1)      We could certainly think of hypotheticals where the complainant may have pretextual or improper motives, but still puts forward a claim that on its face passes the III(C)(5) standard.

2)      On the other side, I'm sure we could also think of hypotheticals where the complainant has completely pure motives, but still has one or two parts of its trademark or copyright claim that it's still trying to pin down (in fact, that may be the very reason why it is seeking information on who the beneficial owner is).

I think III(C)(5) as currently drafted allows for disclosure in (1) but not (2) - which seems backwards to me.  In other words, if we're trying to fight pretext, let's fight pretext.  As it is, I think the draft already does a good job of that:

1)      I(B)(v) contemplates revoking access for having filed a pretextual complaint.

2)      I(B)(vi) contemplates Providers sharing information about pretextual complaints.

3)      II(A)(7), II(B)(7), and II(C)(7) all contemplate that complaints will be submitted under penalty of perjury (with all of the deterrence against pretext that goes with that).

4)      The entire Annex outlines possibilities for handling disputes that arise from pretextual complaints.

If we want to discuss as a WG whether the draft should do more on pretext, or perhaps add some language about pretext to III(C)(2) or III(C)(3), we can.  But I think that trying to fit that square peg (pretext concerns) into a round hole (the III(C)(5) standard) isn't the best way to do it.

*         I like your edits Kathy to III(D), but can we as a WG agree to remove the brackets from III(D)?  I'm not quite sure why it's still bracketed.  We're already editing it (which seems pointless if it might just go away).  And without III(D), the entire rest of the document - which we've now spent weeks trying to get to a place approaching consensus - is moot.

Thanks as always.

Todd.

-----Original Message-----
From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kiran Malancharuvil
Sent: Monday, March 23, 2015 2:23 PM
To: Kathy Kleiman; gnso-ppsai-pdp-wg at icann.org; Metalitz, Steven; Graeme Bunton
Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc

Hi Kathy,

Thanks for forwarding this to the group, and special thanks for forwarding with enough time to review before the call!

We can certainly discuss in more depth on the call tomorrow, but I am not a fan of the changes in Section II.  I'm concerned about the level of minutiae in the language, and I'm wondering how and why that level of micromanagement will be helpful/probative information to the Service Provider.  In very large companies, the trademark owner/president/VP/partner, etc. isn't actually involved directly in the enforcement activity.  It should be enough to demonstrate agency, as the previous language did.

Perhaps I will have more later, but I wanted to float that to the group before the call.

Thanks,

Kiran

Kiran Malancharuvil

Policy Counselor

MarkMonitor

415.222.8318 (t)

415.419.9138 (m)

www.markmonitor.com<http://www.markmonitor.com>

-----Original Message-----

From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kathy Kleiman

Sent: Sunday, March 22, 2015 11:19 AM

To: gnso-ppsai-pdp-wg at icann.org; Metalitz, Steven; Graeme Bunton

Subject: [Gnso-ppsai-pdp-wg] Revised Reveal Doc

Hi All,

Steve and I talked on Friday, and he asked me to circulate a Revised Reveal document -- which is attached.  This document has three types of changes based on our discussion last Tuesday and subsequent research:

1. To the title (reset pending further discussion) 2. To Section II, the Request Templates to clarify the requester and his/her direct knowledge of the alleged infringement and legal authority to represent the Requester, and 3. Annex (reset to original pending discussion with drafters over the narrow goals and intents of this section)

All other edits remain - to continue our excellent discussion of high standards for disclosure, human rights issues, etc. There is also much to discuss regarding follow-up processes (after the Request) including

a) when are appeals allowed and for whom, and b) how does a Provider challenge an alleged "wrongful disclosure" of its Customer's information?

Best and have a good rest of weekend,

Kathy

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