[At-Large] [GTLD-WG] IRT working group report

[Adam Peake]

Kathy Kleiman's comments 
<http://forum.icann.org/lists/irt-draft-report/msg00068.html> 
have received a couple of positive comments on 
the NCUC list.

I can;t find the NCUC list archive, so a few 
email's from the thread copied below:

Adam



At 9:49 AM -0400 5/27/09, Kathy Kleiman wrote:
>
>Hi Mary,
>I appreciate your welcoming of comments, and 
>appreciate your serving on the IRT committee. I 
>know this work takes huge amounts  of time, and 
>it is important for the NCUC to have 
>representatives on the committee. I hope you can 
>comment as I see Steve Metalitz and others 
>commenting.
>
>What I see see emerging from the IRT Committee 
>is a "wish list" of all that the Intellectual 
>Property Constituency has wanted since the 
>beginning of ICANN.  Then we were told that 
>business as we know it would cease to exist if 
>we did not create massive new rules and 
>protections for the largest intellectual 
>property owners in the worlds (and those best 
>able to defend themselves). Yet, in 10 years, we 
>have shown that the Internet, modern business 
>and the sky have not fallen without these 
>protections. We have not had to skew the 
>traditional balance of trademark rights and 
>their protection for free speech and fair use 
>too badly (although I am not crazy about the 
>UDRP). Why, of all times, would we give the 
>intellectual property owners their Wish List now?
>
>In 2000, the Famous Marks working group met for 
>months to determine whether the opening of new 
>gTLDs should be stalled pending protection of a 
>globally famous marks. After a hue and cry about 
>famous marks, it turned out that there were no 
>international lists of famous marks -- and not 
>even any international consensus on what they 
>were (many countries didn't even have 
>legislation protecting famous marks). Further, 
>the courts were ruling against the direction the 
>intellectual property community wanted ICANN to 
>go. In a famous Spanish case, the US NIKE (of 
>sneaker fame) sued a Spanish NIKE in local 
>court. It turned out that the Spanish NIKE, far 
>smaller, had been using the mark far longer than 
>the US company and, as the senior user, was 
>completely protected under trademark law. Both 
>users could coexist.  That's not the answer the 
>US NIKE wanted, and under the IRT proposals, 
>equities would flip.
>
>Could you help me understand the Uniform Rapid 
>Suspension System (URS)? The UDRP is already a 
>system far expedited over a court process, and 
>far, far cheaper than bringing a court action. 
>It already stretches domain name registrants 
>incredibly, and results in forfeitures because 
>registrants don't get the message, or don't have 
>time to act (with vacations, holidays, family 
>illnesses, etc).
>
>To set up a parallel proceeding will further 
>expedite it will cause real harm. Every 
>trademark owner I know thinks it has a famous 
>mark. They will use this Rapid Suspension System 
>(URS) to stomp out all other uses of what they 
>view as "their words." But companies don't own 
>words.  Further these largest companies in the 
>world have all the time in the world to prepare 
>their URS filing, with the world's largest law 
>firms, and then -- from out of nowhere -- 
>individuals, noncommercial organizations, and 
>political groups have to race against the clock 
>(with virtually not time), against the equities 
>of trademark law, and against a stacked deck of 
>rules to defend themselves and their very 
>existence online -- and pay for it too!
>
>I would really appreciate your insight. Please 
>help me to understand how the Uniform Rapid 
>Suspension System serves the noncommercial 
>interest -- and the interest of all future 
>companies, organizations, and ideas which must 
>use the same basic words already trademarked 
>many times over?
>Best,
>Kathy
>
>>I'm glad to see more comments and contributions 
>>from NCUC'ers and like-minded friends on the 
>>IRT proposals!
>>
>>While my take on the IRT report may differ to 
>>some extent from some of you (I'm on the IRT), 
>>I think it's important to make those public 
>>comments so that divergent views and 
>>alternative proposals can emerge.
>>
>>The final IRT report will be released toward 
>>the end of this week, and I encourage everyone 
>>with an interest in the intersection of 
>>trademark law and domain name policy, as well 
>>as those who are concerned about how the new 
>>gTLDs will operate, to track it and comment.
>>
>>I will be happy to discuss the final report 
>>once it's released; there will also be a public 
>>forum at the Sydney meeting that I encourage 
>>everyone who will be there to attend.
>>
>>Best,
>>Mary
>>
>>Mary W S Wong
>>Professor of Law
>>Franklin Pierce Law Center
>>Two White Street
>>Concord, NH 03301
>>USA
>>Email: <mailto:mwong at piercelaw.edu>mwong at piercelaw.edu
>>Phone: 1-603-513-5143
>>Webpage: 
>><http://www.piercelaw.edu/marywong/index.php>http://www.piercelaw.edu/marywong/index.php
>>Selected writings available on the Social 
>>Science Research Network (SSRN) at: 
>><http://ssrn.com/author=437584>http://ssrn.com/author=437584
>>
>>
>>>>>  Robin Gross 
>>>>><mailto:robin at IPJUSTICE.ORG><robin at IPJUSTICE.ORG> 
>>>>>5/25/2009 5:50 PM >>>
>>Wonderful, Kathy!  Excellent work!
>>
>>Thank you,
>>Robin
>>
>>
>>On May 25, 2009, at 2:01 PM, Milton L Mueller wrote:
>>
>>>Really excellent comments, please read
>>><http://forum.icann.org/lists/irt-draft-report/msg00068.html>http://forum.icann.org/lists/irt-draft-report/msg00068.html
>>>
>>>Shows how the IRT proposals are a power grab 
>>>that go way beyond trademark law and ICANN's 
>>>mission.
>>>
>>>Milton Mueller
>>>Professor, Syracuse University School of Information Studies
>>>XS4All Professor, Delft University of Technology
>>>------------------------------
>>>Internet Governance Project:
>>><http://internetgovernance.org>http://internetgovernance.org
>>>
>>
>




At 12:34 PM +0200 6/3/09, Patrick Vande Walle wrote:
>I order to bring some substance to the discussion, here are some of the
>comments I did in a blog post. It is at http://s.isoc.lu/dfwwma
>and is appended below for convenience. It focuses on the URS process. I
>intend to further comment on other aspects of the IRT WG report, especially
>on the whois.
>
>Patrick
>
>
>Reliance on e-mail
>
>Among the issues is the fact that most of the URS process relies on e-mail
>for notifications to the registrant, to the registry operator, etc.  Let¹s
>face it: e-mail has become unreliable for critical applications. With more
>than 90% of e-mail being catalogued as spam, identifying the one important
>e-mail that you are not expecting is like searching a needle in a haystack.
>Some techniques like DKIM, S/MIME signing, etc might help getting through
>the spam filters, if only the latter are well-configured. Most users do not
>have fine-grained control on the configuration of their spam filter, and
>none at all on the one used by their ISP.
>
>Where this matters is that ³A Registrant has fourteen (14) calendar days
>from the date of the initial email notification to submit an Answer³.  If
>the e-mail was caught by your spam filter, or if you are on vacation,
>travelling or more simply not reading your e-mail on a regular basis, you
>are out of  luck. You might lose your domain name without you even noticing
>it before it is too late.
>
>The language issue is also an important one. It may be that English is the
>lingua franca of the business community. However, it may not be a language
>understood by the domain name registrant and he may, in good faith,
>discard the notification message.
>
>Collateral damage
>
>The IRT working group is focusing on  the web. To provide evidence, the
>complainant ³must include
>PDF copies of [...]  the website showing the alleged violation(s)³.  If the
>domain name is indeed found to infringe on someone else¹s IP rights by the
>third-party complaints examiner,  ³The third-party provider will post a
>standard page on the domain name³. No mention is made of other services,
>athough, as one of my friends says ³there are 65534 other ports².
>
>The URS proposal does not explain how other services, like e-mail, DNS, etc
>would be treated. E-mail is  problematic in this context. There could be a
>privacy issue with the third party provider intercepting correspondence
>originally addressed to the domain name registrant. Or, if the registrant
>had indicated a contact e-mail address under the domain name being
>suspended, he might not receive any notifications on his case anymore.
>
>DNS is another issue.  If the suspended domain name was running a DNS
>server for other, unchallenged domain names, those other domain names may
>not be accessible anymore.
>
>What the IRT group is proposing is technically close to the controversial
>Sitefinder ³service² , and this proves again that the IRT group wold have
>benefitted to have a broader base of participants, especially from the
>technical community, in this case.
>Legal uncertainty
>
>The fact a registrant has sucessfully passed a URS examination does not
>mean he is certain to keep his domain name. He could still face a UDRP
>complaint and a legal action. There is not much that can be done to prevent
>a legal action. However, one could expect the complainant to have to choose
>between a URS complaint or a UDRP complaint, but not both.
>
>On other factor is that the registrant should be guaranteed some peace of
>mind regarding the use of his domain name. A URS complaint can be filed at
>any time.  If the registrant has been using a domain  name for several
>months or years, he could still face a URS complaint. This creates a high
>level of uncertainty. Would you dare to launch an  Internet-based business
>if your domain name can be taken down at any time ?
>
>The extensive use of  e-mail in the URS process creates a real issue
>regarding the production of  legal evidence in law suits following URS
>cases.  Like it or not, most judicial system use written evidence to
>examine civil cases, and do not consider e-mails or faxes as legal
>evidence.
>
>Individual domain name registrants
>
>The IRT proposal does not make any difference between domain names
>registrants which are businesses and individuals. Unlike businesses which
>are ³open all day², individuals cannot be expected to be glued to their
>computer screen waiting for a  e-mail regarding a potential issue with a
>domain name they have registered. As mentioned above, the 14 day period for
>answering after the  notification may be impossible to keep for an
>individual, especially if he is not well-versed into the intricaties of the
>IP framework regarding domain names.
>
>The language issue mentioned above is even more problematic for
>individuals.
>
>Potential suggestions for improvement
>
>I am told I should suggest possible improvements rather than just whining.
>So:
>
>* Use certified/registered paper mail for notification. This is expensive,
>yes, but will provide indisputable evidence to both parties. Further,
>because of the cost involved, it will help eliminate frivolous complaints
>only designed to hurt competitors.
>* Draft notifications in the registrant¹s native language. This is
>expensive, again, but will make sure that the registrant actually
>understands what is going on.  And again, it will greatly help in possible
>later law suits.
>* Differentiate between individual private persons and legal entities. The
>process applying to the former would be more relaxed in terms of  time
>schedules.
>* Make the suspended somain names unresolvable by the DNS. Web users, will
>get a 404 error. E-mail users will get a non-delivery receipt. This would
>be RFC-compliant and solve the privacy issues.
>* Put a time limit on the introduction of a URS complaint, for example 3
>months. After that time, the domain name owner should be guaranteed he will
>not face a URS complaint anymore.
>* In line with the above, a complainant should be requested to elect for a
>URS or a UDRP.  This will guarantee that the domain name registrant will
>not be harrassed.
>
>
>
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