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Re: [nc-udrp] Moving Forward

From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
> The subject line of this thread is sadly ironic.

I think we can do this, and I will shortly post some comments on the points
you raised and integrate Prof. Mueller's and Katsch's "short lists" for a
quick show of hands on consensus.  Some ideas are probably non-starters, but
there appears to be broad agreement that there is little need/want/desire for
substantive changes to the UDRP, but there are some procedural and
transparency issues found troubling by some.

There are clearly some uncontroversial and worthwhile things that can be done
to address recurring procedural problems, as those in the TF who actually do
this stuff can agree.  I seriously doubt that having an "administrative
transfer" option for respondents who get trapped in the UDRP catch-22 of
wanting to transfer the domain name to the complainant, but being stymied by
the UDRP itself, is at all objectionable to anyone.  Having seen this a few
times, it can be simply maddening trying to get the DRP and the registrar to
recognize that the parties have reached agreement on transferring the domain
name.  The registrar won't transfer the name because the they haven't gotten
permission from the DRP, and the DRP's usually take the bizarre attitude of
saying, "Oh, transfers are up to the registrar" (not realizing that the
registrar won't do it without their permission).  There was actually a
situation recently where an NAF case manager believed he had the authority to
order a registrar to transfer the domain name *back* to the respondent, after
the parties had reached an agreement to transfer the domain name, and the
registrar had complied.  And this was after the same NAF case manager had
issued a notice to the registrar giving them 48 hours to transfer the domain
name over the course of a three-day holiday weekend.  Sometimes this stuff
just gets plain goofy for no good reason.

We can probably sort the various proposals into "worthwhile", "worth
discussing", "probably not worthwhile", and "are you out of your mind?" in
pretty short order, if anyone had any interest in finding out what we all
might actually agree on if we bothered to discuss anything.  I think there is
this fear of "barbarians at the gates" who are hell-bent on making major
substantive changes to the UDRP, when I see very little evidence of such a
thing.  But in order to prove one's bona fides at a run for an ICANN board
seat, one has to establish one's reliability in making sure the "wrong
people" don't mess with the program.  We know, for example, that WIPO has
deemed Professor Froomkin unacceptable as a UDRP panelist, and thus he is
certainly the sort of person that one would not want to have any effect on
the UDRP itself.


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