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UDRP Review
and Whois Scribe's Notes I. Welcome – Jonathan Zittrain, Berkman Center for Internet & Society A. Note new addition to schedule – TLD Expo, 6pm. B. Thanks to Markle Foundation for support. II. Intellectual Property and Privacy in ICANN Policy: UDRP Review and Whois A. Alan Davidson B. Panelists: Evans, Froomkin, Mueller, Touton, Palage, Gurry, Katsh C. Why we need a UDRP, and what it’s designed to achieve? 1. Evans: To counter cyberquatting, but intended to handle only a narrow scope of problems. UDRP has worked as intended. Many respondents don’t file responses, 2. Froomkin: Mark owners convincing that they were being taken advantage of. But some procedural aspects had implications of serious concern. D. Davidson: How well is it working? 1. Mueller: Have put UDRP data into a database to prepare for analysis. Number of disputes may have decreased in time, reflecting “pent-up demand.” One disputed name for every 3500 registered names. Most disputed names were registered recently, but age not declining over time. In contested cases, noticeable differences among services providers – perhaps statistically significant differences. Differences in speed of decision-making – NAF the fastest on average. • Implication is that there’s a bias? • Have to be concerned about forum-shopping, especially since the complainants select the decision-maker. • Evans: Note that many cases are settled. Could affect the statistics. Also, note differences in quality of decisions – WIPO writes the best decisions. E. Davidson: Is WIPO biased? 1. Gurry: Note that the procedure has been established and that it works. This is a significant achievements. Just two years ago, no such process existed. Results are largely consistent – measured in legal principles (fact situations, legal questions), not statistics. Perhaps market shares of service providers result from exogenous factors like language choices, international reputation, etc. Shouldn’t be hasty in concluding that any particular factor is most important. F. Katsh: Participated in establishment of e-Resolution. Disturbed to see WIPO’s rate of favoring complainant increasing in time. So I’d advise my client to go with the provider that finds for the complainants more, and soon WIPO may have all the disputes. That may be cause for concern. Perhaps it’s time for some tweaks in a “version two.” G. Davidson: When does ICANN need to step in? H. Touton: Stated intention was to conduct a review a year after implementation, i.e. now. DNSO is currently conducting such a review. Forum shopping, if it is occurring, suggests that “justice is being bought and sold,” which none of us want. I. Froomkin: Policy was written in secret. J. Touton: Not true. K. Evans: Froomkin is wrong. He may not have gotten what he wanted, but it didn’t happen that way. L. Touton: There are problems with all the proposed solutions for forum-shopping. Note that respondents can’t help shape the makeup of panel if they’re willing to share the costs. Interesting that few are choosing this; maybe we need to be more clear in explaining that option. M. Palage: UDRP is imperfect, but it’s basically working. Problems exist at the panelist level, not at the provider level. When I joined WIPO, they didn’t pre-screen me (training?). Some decisions “defy logic,” but same is true in other judicial contexts. So we should try refinement, not complete overhaul. Perhaps use a round-robin selection method. N. Gurry: Competition among dispute resolution service providers is to enhance choice. O. Davidson: A system to prevent forum-shopping? 1. Mueller: Registrars to select dispute resolution provider. Incentives of registrars are not as unbalanced (as those of complainants). Concerned to hear Touton talk of a single provider. 2. Evans: It’s good to have statistical analysis like what Milton did. And statistics are confusing – don’t take account of defaults. Any complaint that really fits the requirements of the UDRP should be a “sure winner.” 3. Froomkin: Procedural rules are flawed. The process for writing the rules could be improved for next time. But much of what happens in domain disputes is the demand letters, based in American law (rather than UDRP), which can honestly say “you may be liable for up to $100,000 no matter how much we suffered.” 4. Evans: My clients are small, and they get these letters (rather than send them). 5. Davidson: It’s rare in a “regular” legal system that one party gets to choose the judge. 6. But plaintiff does get to choose the jurisdiction. 7. Katsh: consumers have to trust process as well as trademark holders. 8. Touton: Selection of panelists: good to have multiple, competitive providers. 4 options: complainant selects provider, domain name holder selects provider, registrar selects provider, (concern of rogue registrars), complainant selects provider, if domain holder will pay, can select one panelist, one chosen by complainant, one by provider. (option 4 in effect). P. Larry Helfer, Loyola Law School: Does it make sense to extend the UDRP to new TLDs before studying the existing system. 1. Palage: UDRP is imperfect, but it’s working. Should hold panelists (not providers) accountable for their decisions. 2. Mueller: Every system will make some bad decisions. Court challenges can fix those mistakes (if losing party willing to pay). But with systematic differences in name transfer rates among providers, the system seems to select for name transfer rate. Interpretation of the policy seems to leave space for slanting policy one way or the other, and that’s a serious problem. 3. Gurry: It’s unfortunate that parties have to go to court when a decision goes wrong. Perhaps need an appellate system within the UDRP. Q. Ramon Morales (register.com): Don’t forget the international perspective. 1. Froomkin: What would it take to be delisted as a provider? Is anyone watching? • Touton: Most people agree that ICANN shouldn’t get more involved in the substance of disputes than is actually necessary. Have been careful not to get involved with the merits of any particular case. • Evans: Of concern if some panelists never get any cases? • Touton: A rotational system is not the norm in many contexts – have to face other constraints like third-country interests, languages, etc. R. Bill Silverstein: What about “sucks” domains? Alleged to be fair use, a valid defense in the US but perhaps not elsewhere. 1. Evans: Some of these cases are tough because panelists have gone “beyond the pale.” III. Davidson: Let’s talk about WHOIS. Want to assure access, but also need to address privacy concerns raised. A. Touton: Whois reports data about registrant for particular domains. Allows quick location of those responsible for hosts on the Internet in order to resolve technical problems. Used by law enforcement officers to track down fraud, etc. Solution has been a publicly-accessible set of databases, but there are legitimate (anti-harassment) reasons why some people don’t want their personal details published on the Internet. Registry-Registrar separation caused some complications. RAA specifies requirements, see http://www.icann.org/mdr2000/whois-presentation-12nov00.htm . Discussion in community (incl among registrars) re implementation details for interoperability. Registrars generally comply with requirements, and they generally make necessary changes when shortcomings are pointed out. B. Froomkin: Understand that history of Whois goes back to pre-consumer use of the Internet. Everyone agrees that a technical contact is necessary for each domain. But why is other information required? Some worry of serious outcomes, i.e. stalking. Unlisted phone number solution seems reasonable – the “phone company” equivalent could be sued if disclosure needed. Should take this opportunity to create a privacy-enhanced zone on the Internet for at least non-commercial users. C. Touton: Note that some registrars already allow pseudonymous registrations. This is not well-known; further education efforts needed. D. Mueller: “Trademark tail shouldn’t wag the DNS dog.” Any good programmer can synthesize the Whois databases. So why does ICANN have to do this work? CONTACT INFORMATION For additional technical information, please contact: Ben Edelman and Rebecca Nesson |