[NA-Discuss] UDRP

[ebw at abenaki.wabanaki.net]

Beau,

I don't see any reason not to, but one or more of those he makes his case
to could read his 48pp paper. It is in my reading queue, but not at the
top.

A concern I have that I didn't think should, by itself, be sufficient to
embark upon a PDP (not that my thoughts one way or another have any
influence over the members of the GNSO Council) was distinguishing the
application of this DRP as a means to protect the marks holders interests
in preventing dillution -- the "kleenex" effect, and its application as a
means to protect the marks holders interest in suppressing speech critical
of their brands, and its application as a means to protect the marks holders
interests in influencing search engine outcomes.

That is, the UDRP was intended to provide an equitable, efficient means
to prevent dillution injury, to marks holders, and to third parties (aka
"consumers") who use marks to identifiy benefits with manufacturers.

The UDRP is now also used to provide a means to prevent market injury, to
marks holders, by third parties (aka "consumers") who use marks to harms
with manufacturers.

The UDRP is also now used to provide a means to create market value, to
marks holders, by third parties (aka "advertizers") who use marks to
monitize suppressed NXDOMAIN returns to resolvers.

George Kirkos identified the second concern, the "free speech" issue.
Domainers, domain tasting, and Sitefinder (wildcarding) and its follow
ons, are the third issue.

Both can be addressed without radical revision of the original, and
reasonably well implemented first purpose. But neither should be
ignored, and a jurisdictional proposal arising from a correlation
may miss actual causation, and simply advance a jurisdictionally
limited "public interest" theory in place of a "public interest" both
jurisdictionally dependent, and jurisdictionally independent.

I think the ALAC purpose is to attempt to find the jurisdictionally
independent public interest, and the GAC's purpose is to attempt to
find the jurisdictionally dependent public interest.

In writing a draft proposed ALAC response to the Initial Issues Report
by ICANN Staff on the UDRP, I proposed no PDP at the present time, but
the inclusion of the "free speech" issue among those to be considered
by a small group of experts looking at implementation improvements, as
proposed by ICANN Staff.

Again, I've not read his paper, or his prior scholarship on things
ICANN-esque (routed data network policy) or similar (switched voice
network policy).

An excellent review of the third issue is in Tyler Moore and Ben
Edelman's 2010 paper "Measuring the Perpetrators and Funders of
Typosquatting", proceeding of the 14th Int. Conf. on Financial
Cryptography and Data Security. It introduces the issue with the
registration of kaplan.com in 1994 by Kaplan's competitor Princeton
Review and proceeds to cybersquatting generally as an economic
activity.

Eric