From: owner-wg-c-digest@dnso.org (WG-C-DIGEST) To: wg-c-digest@dnso.org Subject: WG-C-DIGEST V1 #100 Reply-To: Sender: owner-wg-c-digest@dnso.org Errors-To: owner-wg-c-digest@dnso.org Precedence: bulk WG-C-DIGEST Sunday, June 11 2000 Volume 01 : Number 100 ---------------------------------------------------------------------- Date: Fri, 19 May 2000 16:16:51 -0700 From: "Roeland Meyer \(E-mail\)" Subject: [wg-c] FW: [ga] court curbs icann > -----Original Message----- > From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On Behalf Of Roeland > Meyer (E-mail) > Sent: Friday, May 19, 2000 1:14 AM > To: 'Harald Tveit Alvestrand'; 'Kent Crispin'; ga@dnso.org > Subject: RE: [ga] court curbs icann > > > > From: Harald Tveit Alvestrand: Friday, May 19, 2000 12:08 AM > > At 12:39 18.05.2000 -0700, Roeland Meyer \(E-mail\) wrote: > > >Aside from the obvious? I'm not sure, at this point, how this > > >effects the UDRP. > > One problem that I have with this is that we are doing this > analysis from a condensed report. Yes, I know that the actual > source dox may be rather obtuse. However, this is an > interpretation, of an interpretation, with no source dox > available (he whom depends on crystal balls too much, often eats > glass). Also, try reading the Reader's Digest version of Hamlet > sometime, there's a lot missing. > > > It would seem to reaffirm the UDRP's view of itself in the > > scheme of things. > > See in particular section 4 K of the UDRP at > > http://www.icann.org/udrp/udrp-policy-24oct99.htm, which > > clearly states > > that a court of law may overrule an administrative panel > decision. > > http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagena > me=law/View&c=Article&cid=ZZZI5DBFD8C&live=true&cst=1&pc=0&pa=0&s > =News&ExpIgnore=true&showsummary=0> > > Additionally, Weber-Stephen went to the Internet Corp. for > Assigned Names and Numbers (ICANN), the nonprofit, private-sector > corporation set up to oversee Web-name assignments and resolve > domain-name disputes. Under the organization's Uniform Domain > Name Dispute Resolution Policy, Weber-Stephen asked ICANN to > cancel Armitage's domain names or to transfer them to Weber. In > response, Armitage asked the federal court to stay ICANN's > administrative proceedings and declare them nonbinding. > > In a ruling on May 3, U.S. District Judge Marvin E. Aspen > determined that the court is not bound by proceedings of an ICANN > panel. But he indicated uncertainty about just how much deference > the administrative procedures should be given. He stayed the > federal trademark case pending the outcome of the ICANN decision > and said that "at this time we declined to determine the precise > standard by which we would refuse the panel's decision and what > degree of deference (if any) we would give that decision. Neither > the ICANN Policy nor its governing rules dictate to the court > what weight should be given to a panel's decision." > > The ruling is significant because of the volume of > dispute-resolution proceedings now before the administrative > organization. According to the ICANN Web site, on May 9 there > were 518 unresolved cases. > > > > > As I read the decision as reported, there are 2 significant > > parts that actually *increase* the status of the UDRP: > > > > - He stayed the federal case. This indicates that he regards > > the outcome of the UDRP proceeding as worthy of hearing before > proceeding. > > Equally likely, the Judge was buying time to study the matter > more deeply. He clearly indicated the UDRP to be non-binding. > This is well and good. I further note that when a Judge declines > to define something, it is either because they don't yet have an > answer that they are willing to live with, or they think their > answer would be prejudicial to something where they dearly would > like to see an objective result, (one that is not effected by > their action). In this case, he is clearly trying to remain as > neutral as possible, in order to see what the UDRP does. > > > - He *denied* the motion by Armitrage to stay the ICANN > proceeding. > > (Given that it was a WIPO hearing, based in Switzerland, > > he might have > > realized that this wouldn't be trivial to implement.) > > IMHO, the jurisdictional issue appeared irrelevent. The Judge had > the power to neutralize the UDRP decision, as all parties are on > US soil and this was in Federal court. Appropriate court orders > could have either superceded, or supported, anything the UDRP > decided. He could have, trivially, ignored the UDRP altogether by > awarding a TRO against NSI changing anything until he is done > with it. That implementation mechanism is more than obvious and > would have made the UDRP irrelevent, instantly. You are right, it > is significant that he didn't do so. I'm just not as sure as you, > as to which way to read it. > > It is also worthy of note that Armitage didn't think of filing > the TRO, rather than asking the Judge to stay the UDRP proceding. > Without access to the source dox, it's difficult to determine > exactly which way it went. If some of the lawyers on the list > want to comment on this point, please do so. > > Effectively, the two cancel each other, with the result being > neutral. > > > Reading the UDRP proceeding decision is also interesting. > > To my mind, this is *exactly* how the UDRP should work: > > > > "If Complainant desires to obtain relief based upon some > > allegations that > > Respondent overstepped or overstated the bounds of its > > arrangement with > > Complainant, or that no such arrangement exists, that > > argument is better > > addressed to a court, which is equipped to resolve such > > complicated factual > > issues." > > > > In other words: "This matter is not a clear cut case. The > > UDRP does not apply. Go to court." > > And it makes a point I made during the WIPO discussions: That > > it *must* be > > possible to bring a case before the UDRP panel to find out > > whether it is a > > case where the UDRP can be applied or not. Otherwise we need > > a meta-panel > > to decide whether a case can go to the panel, which may then > > have doubts > > cast upon its jurisdictions, which then need to be resolved > by..... > > The problem is that we have been seeing some extremely flakey > UDRP decisions. Ergo, I don't know where your point helps that > here. > > > I think this case indicates that the process is working, just > > about the way > > I thought we wanted it to work. > > Not too bad. > > Not too good either. In balance, it came out neutral (with the > caveates I started this note off with). I definitely read a > wait-and-see here. That they are willing to watch is significant. > What they do with what they see, will also be significant. > > -- > This message was passed to you via the ga@dnso.org list. > Send mail to majordomo@dnso.org to unsubscribe > ("unsubscribe ga" in the body of the message). > Archives at http://www.dnso.org/archives.html ------------------------------ Date: Sun, 21 May 2000 15:03:06 -0700 From: "William X. Walsh" Subject: Re: [wg-c] FW: [ga] court curbs icann Isn't this list defunct, and the group disbanded? Why are people still forwarding posts to this list? Friday, May 19, 2000, 4:16:51 PM, you wrote: >> -----Original Message----- >> From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On Behalf Of RMEm> Roeland >> Meyer (E-mail) >> Sent: Friday, May 19, 2000 1:14 AM >> To: 'Harald Tveit Alvestrand'; 'Kent Crispin'; ga@dnso.org >> Subject: RE: [ga] court curbs icann >> >> >> > From: Harald Tveit Alvestrand: Friday, May 19, 2000 12:08 AM >> > At 12:39 18.05.2000 -0700, Roeland Meyer \(E-mail\) wrote: >> > >Aside from the obvious? I'm not sure, at this point, how RMEm> this >> > >effects the UDRP. >> >> One problem that I have with this is that we are doing this >> analysis from a condensed report. Yes, I know that the actual >> source dox may be rather obtuse. However, this is an >> interpretation, of an interpretation, with no source dox >> available (he whom depends on crystal balls too much, often RMEm> eats >> glass). Also, try reading the Reader's Digest version of Hamlet >> sometime, there's a lot missing. >> >> > It would seem to reaffirm the UDRP's view of itself in the >> > scheme of things. >> > See in particular section 4 K of the UDRP at >> > http://www.icann.org/udrp/udrp-policy-24oct99.htm, which >> > clearly states >> > that a court of law may overrule an administrative panel >> decision. >> >> > RMEm> http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagena >> RMEm> me=law/View&c=Article&cid=ZZZI5DBFD8C&live=true&cst=1&pc=0&pa=0&s >> =News&ExpIgnore=true&showsummary=0> >> >> Additionally, Weber-Stephen went to the Internet Corp. for >> Assigned Names and Numbers (ICANN), the nonprofit, RMEm> private-sector >> corporation set up to oversee Web-name assignments and resolve >> domain-name disputes. Under the organization's Uniform Domain >> Name Dispute Resolution Policy, Weber-Stephen asked ICANN to >> cancel Armitage's domain names or to transfer them to Weber. In >> response, Armitage asked the federal court to stay ICANN's >> administrative proceedings and declare them nonbinding. >> >> In a ruling on May 3, U.S. District Judge Marvin E. Aspen >> determined that the court is not bound by proceedings of an RMEm> ICANN >> panel. But he indicated uncertainty about just how much RMEm> deference >> the administrative procedures should be given. He stayed the >> federal trademark case pending the outcome of the ICANN RMEm> decision >> and said that "at this time we declined to determine the RMEm> precise >> standard by which we would refuse the panel's decision and what >> degree of deference (if any) we would give that decision. RMEm> Neither >> the ICANN Policy nor its governing rules dictate to the court >> what weight should be given to a panel's decision." >> >> The ruling is significant because of the volume of >> dispute-resolution proceedings now before the administrative >> organization. According to the ICANN Web site, on May 9 there >> were 518 unresolved cases. >> >> >> >> > As I read the decision as reported, there are 2 significant >> > parts that actually *increase* the status of the UDRP: >> > >> > - He stayed the federal case. This indicates that he regards >> > the outcome of the UDRP proceeding as worthy of hearing RMEm> before >> proceeding. >> >> Equally likely, the Judge was buying time to study the matter >> more deeply. He clearly indicated the UDRP to be non-binding. >> This is well and good. I further note that when a Judge RMEm> declines >> to define something, it is either because they don't yet have RMEm> an >> answer that they are willing to live with, or they think their >> answer would be prejudicial to something where they dearly RMEm> would >> like to see an objective result, (one that is not effected by >> their action). In this case, he is clearly trying to remain as >> neutral as possible, in order to see what the UDRP does. >> >> > - He *denied* the motion by Armitrage to stay the ICANN >> proceeding. >> > (Given that it was a WIPO hearing, based in Switzerland, >> > he might have >> > realized that this wouldn't be trivial to implement.) >> >> IMHO, the jurisdictional issue appeared irrelevent. The Judge RMEm> had >> the power to neutralize the UDRP decision, as all parties are RMEm> on >> US soil and this was in Federal court. Appropriate court orders >> could have either superceded, or supported, anything the UDRP >> decided. He could have, trivially, ignored the UDRP altogether RMEm> by >> awarding a TRO against NSI changing anything until he is done >> with it. That implementation mechanism is more than obvious and >> would have made the UDRP irrelevent, instantly. You are right, RMEm> it >> is significant that he didn't do so. I'm just not as sure as RMEm> you, >> as to which way to read it. >> >> It is also worthy of note that Armitage didn't think of filing >> the TRO, rather than asking the Judge to stay the UDRP RMEm> proceding. >> Without access to the source dox, it's difficult to determine >> exactly which way it went. If some of the lawyers on the list >> want to comment on this point, please do so. >> >> Effectively, the two cancel each other, with the result being >> neutral. >> >> > Reading the UDRP proceeding decision is also interesting. >> > To my mind, this is *exactly* how the UDRP should work: >> > >> > "If Complainant desires to obtain relief based upon some >> > allegations that >> > Respondent overstepped or overstated the bounds of its >> > arrangement with >> > Complainant, or that no such arrangement exists, that >> > argument is better >> > addressed to a court, which is equipped to resolve such >> > complicated factual >> > issues." >> > >> > In other words: "This matter is not a clear cut case. The >> > UDRP does not apply. Go to court." >> > And it makes a point I made during the WIPO discussions: That >> > it *must* be >> > possible to bring a case before the UDRP panel to find out >> > whether it is a >> > case where the UDRP can be applied or not. Otherwise we need >> > a meta-panel >> > to decide whether a case can go to the panel, which may then >> > have doubts >> > cast upon its jurisdictions, which then need to be resolved >> by..... >> >> The problem is that we have been seeing some extremely flakey >> UDRP decisions. Ergo, I don't know where your point helps that >> here. >> >> > I think this case indicates that the process is working, just >> > about the way >> > I thought we wanted it to work. >> > Not too bad. >> >> Not too good either. In balance, it came out neutral (with the >> caveates I started this note off with). I definitely read a >> wait-and-see here. That they are willing to watch is RMEm> significant. >> What they do with what they see, will also be significant. >> >> -- >> This message was passed to you via the ga@dnso.org list. >> Send mail to majordomo@dnso.org to unsubscribe >> ("unsubscribe ga" in the body of the message). >> Archives at http://www.dnso.org/archives.html - -- Best regards, William mailto:william@userfriendly.com ------------------------------ Date: Sun, 21 May 2000 16:09:57 -0700 From: "Roeland Meyer \(E-mail\)" Subject: RE: [wg-c] FW: [ga] court curbs icann > William X. Walsh > Sent: Sunday, May 21, 2000 3:03 PM > > Isn't this list defunct, and the group disbanded? > > Why are people still forwarding posts to this list? Just to catch fish, like you. ------------------------------ Date: Sun, 11 Jun 2000 22:58:50 +0200 (MET DST) From: DNSO Secretariat Subject: [wg-c] Formalizing Voting Procedures for the DNSO GA [ To: ga@dnso.org, announce@dnso.org ] [ To: WG's ] [ To: council@dnso.org] [ To: liaison7c@dnso.org ] The DNSO General Assembly needs to formalize its voting procedures. The very initial startup step consists to agree on the voting rules, as proposed by Harald Alvestrand, Alternate Chair, and amended according to the comments received, in: http://www.dnso.org/dnso/notes/2000.GA-voting-rules.html Once the DNSO GA agree on the voting rules, the next step will be to vote on the Voting Registry rules, in: http://www.dnso.org/dnso/notes/2000.GA-voting-registry.html With the voting rules and Voting Registry established, the DNSO GA will have its voting procedures completed, therefore ready for subsequent decisions. The vote on the voting rules will be announced by the GA Chair, once discussion on the mailing list is finished. DNSO Secretariat ------------------------------ End of WG-C-DIGEST V1 #100 **************************