Re: [discuss] Notes - Names Council Meeting, San Jose - 062599

[Kent Crispin <kent@songbird.com>]

On Mon, Jun 28, 1999 at 09:57:56PM -0400, Michael Froomkin - U.Miami School of Law wrote:
> Alas, in practice, the WIPO process would often supplant the law.

"Often"?  

> I explain this in detail in my WIPO reports at
> http://www.law.miami.edu/~amf  .They say they won't, they may mean not to,
> but the fact remains that a party who doesn't initiate a suit before the
> ADR is over will in many cases  have no recourse to the courts (no cause

"In many cases"?

> of action).
> 
> I've been saying this for months, in detail, and am still awaiting a
> rebuttal to this claim from any party to ths debate.  

Just reviewed your document.  Paragraphs 117-127 are the operant ones, 
I believe.  The fairly obvious rebuttal is this: indeed such cases 
as you describe may occur, but that is not necessarily relevant.  No 
set of procedures can be perfect; some criminals will escape and some 
innocents will be convicted in even the best legal system (that's an 
example -- I am not describing the ADRs as a legal system).  A 
proper evaluation of the effect must include some indication of the 
probabilities of the various assumptions.  You say "often", and "in 
many cases", but there is no basis for those assignments of 
frequency. 

You give the example of a "plaintiff" in New York and a defendant in
Prague, and construct what is actually a fairly elaborate scenario
where a bad effect occurs:

  "Suppose that Alice, the complainant, lives in New York, and Bob,
  the registrant, lives in Prague.  If Alice can persuade a New York
  court to assert jurisdiction over Bob because he is using the
  domain in an infringing manner with effects in New York, then she
  can bring suit where she lives.  On the other hand if Bob has
  merely registered the domain but made no infringing use of it,
  Alice probably must go to Prague to bring the action.  (Alice may
  have waived her ability to in rem complaint against the registry
  once in enforces the ADR decision by virtue of the terms proposed
  for her contract in paragraph 220(iii) of the Final Report.) The
  WIPO-ADR offers Alice a potentially attractive means of avoiding
  the expense and uncertainty of hiring foreign counsel and risking
  the vagaries of a foreign legal system.  If Alice loses, and she
  wishes to bring suit anyway, she has the same options she had
  before the WIPO-ADR."

Note the following assumptions:

  1) Widely separated jurisdictions, cultures, language, and physical 
  locations, but still contending over a domain name

  2) A questionable result from the ADR

  3) that alice could persuade a New York court of jurisdiction

  4) That the court in Prague could not be persuaded that it had 
  jurisdiction to issue a stay

  5) that the registry/registrar/ADR panel would not accept such a
  stay if it were issued, despite what I perceive as the intention 
  of the WIPO report that the ADR would actually accept the result 
  of any competent court.

  6) That the plaintiff was wealthy and sophisticated enough to 
  otherwise bring a suit

  7) That the defendent was sophisticated and wealthy enough to
  contemplate a suit in New York, but at the same time naive enough
  to let the 7 day rule catch him by surprise. 

  8) That other complicated jurisdictional issues work in a
  particular way to favor your case.

Moreover: You presume that it is fair for a plaintiff to have to go
to extraordinary effort to bring legal action, but unfair for a
defendent, despite the fact that these cases are restricted to
egregious cybersquatting. 

More than anything else, the importance of the WIPO report is that 
it is an INTERNATIONAL effort.  Your analysis deals with details of 
American Law, but I'm sure that you would admit that you do not have 
the expertise in international issues that the WIPO staff does.

Moreover, there are explicit statements in the report that the
recommendations are not static final results, but instead are an
initial cut, and are intended to evolved over time. 

So, in sum, while I view your arguments as interesting from a
theoretical standpoint, and certainly they must be kept in mind as we
go forward, I also view the WIPO report as the work of genuine
experts in the practicalities at issue.  I would therefore prefer to
take their work as a starting point, and evolve from that.


-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain