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Re: [wg-b] An idea?

PREFACE:  Yes, this reads as though I'm a bit angry.  I am.  Perhaps
I get too involved in this, or too passionate about it.  I would rather
care too much than too little about these issues.  

IMPORTANT NOTE: If ANY of your "last minute thought" here winds up in
the WG-B final report, Michael, there will be no doubt left in my mind
that you've manipulated this entire process to your own ends, and
those with whom you're in league.  I don't care how "last-minute" it
is, it doesn't belong in the report.

Furthermore, I would strongly recommend that the final report be
submitted to the WORKING GROUP before it goes to its final
destination.  Otherwise, take my name off it.  As it now stands, that
document bears little resemblance to the work done in the working
group.  Unless you've dramatically altered the document to be much
more in-line with the work done by all of us, that work is nothing
more than the report of Michael Palage, and not the report of WG-B, or
representative of it.

Now, on to your "last minute thought":

On Sun, May 14, 2000 at 12:11:19PM -0400, Michael D. Palage wrote:
> In the process of preparing Working Group B's Final Report to the Names
> Counsel this weekend, I was reading over all of the comments that were
> submitted during the comment period. And the following idea came to me
> during a brain storming session with another attorney. I think it offers an
> interesting idea that was never considered.  I would like to hear any
> "constructive" feedback that people have on this idea.
> Temporarily Modified UDRP During the Rollout of a New Top-Level Domain Name
> Any new top-level domain would be added to the root with no preferential
> pre-registration rights. However, in those top-level domains where
> additional trademark protection would be deemed necessary to thwart abusive
> bad faith registration, a modified UDRP would apply for a limited time

In the Names Council's recommendations to the ICANN Board, they
recommend that all new TLDs be created such that it would be "deemed
necessary to thwart abusive bad faith registration."  Indeed, I fail
to see a case in which the TM lobby would ever agree to a TLD where
such was not the case.

So, this suggestion of yours is in reality a standing modification to
the UDRP.  That in and of itself makes me hesitant to agree with it;
the UDRP is not as fluid a document as, for example, the ICANN bylaws.
We can not and should not go amending it every time we find a
situation where it may be expedient to do so.

> period, say 30 to 60 days. During this start up phrase (30 to 60 days), any
> third party (Complainant) challenging a domain name registration in this new
> top level domain would contact a dispute provider and deposit the required
> fee (approximately $750 under the current provider rules). The dispute
> provider would then contact the domain name registrant and inquire if they
> wish to respond to the third party challenge. (Note: A significant number of
> UDRP are default proceeding where the domain name registrant never replied).
> If the domain name registrant wishes to respond to the challenge they would
> be required to deposit the same required fee as deposited by the
> Complainant. If the domain name registrant (Respondent) declined to respond
> to the Complainant, the domain name would be transferred to the Complainant
> along with a refund of the initial fee. Unlike the current UDRP proceeding,
> there would be no need for a written opinion in a default proceeding.

So, in essense, this is a game of "who can afford $750," since this
modified the UDRP to compel both the complainant and the defendant to
pay an arbitration fee.

No, thank you.  This would just tighten the grip of corporations on
namespace.  All a company would have to do to get a domain name they
wanted would be cough up $750.  Anyone unwilling or unable to match
that $750 loses their domain name.

Somehow, I don't see how this benefits the individual, or the
non-commercial interest.  It just provides another means for the TM
lobby to reverse-cybersquat, and it lines the pockets of TM lawyers
and arbiters.

Furthermore, it refunds the initial $750 now required from the 
complainant by the UDRP, making the UDRP in essence, free of cost
for any corporation willing to use it as a weapon.

Out of mild curiosity, who was this other lawyer with whom you came up
with this plan?  They wouldn't, by any chance, be involved in
arbitration, would they?

> If the Respondent posts the required fee, the dispute provider will conduct
> a proceeding using the existing UDRP rules. If the Respondent wins, the
> dispute provider will collect its fees from the Complainant and refund the
> deposit of the Respondent. However, if the Complainant prevails in a finding
> of bad faith, the dispute provider will collect its fees from the Respondent
> and refund the deposit of the Complainant.

So, in sum:  

1)  Change the UDRP for all new TLDs
2)  Require not only the Complainant but the defendant to pay $750,
3)  Refund the fee to the winner.

Explain to me how this is _not_ a significant boon to the TM lobby, and
a severe hindrance to individuals and non-commercial interests who
cannot afford a $750 gamble just to register a domain name?

I'm unclear whether this "deep pocket" period of 30-60 days applies to
the period after the registry goes live, or after every new domain name
registration.  In either case, I find it distateful.

> For those proceeding in which there is a default proceeding, the dispute
> provider will be compensated for their administrative oversight by a fund
> maintained by the registry. In order to share this burden equally among the
> entire Internet community, there will be a registry fee surcharge (less than
> a dollar) that will be accessed to all domain name registration in that new
> top-level domain. After the start-up phase (30 to 60 days) there will be no
> addition surcharge on domain name registrations and the UDRP rules will
> return to normal, i.e. a Complainant must pay the full fee in order to
> initiate a challenge.

So, in addition to what you want above, you also want a kickback paid to
the arbiters for each case decided in which the defendant can't be
reached in time, isn't contacted because the arbiter doesn't understand
their e-mail client, or the defendant balks at having to gamble $750 of
her own money to defend their claim on a name to arbiters who have
demonstrated a willingness to consider trademark applicability in
a context-free manner?

Ok, now I'm more than mildly curious:  Which arbiter helped you cook
this up?

> The benefits of this proposal are that there are no preferential
> pre-registration rights given to anyone. 

You are correct.  Instead of limiting the players to only the TM lobby, 
you've just changed the rules so that only the TM lobby can win, even
though you've broadened the playing field.  And you've snuck in a
per-case bribe to the referees.

> Additionally, the economics of
> abusive domain name registrations would be temporarily altered during this
> land-rush phase to create a disincentive for these types of bad faith
> registrations. 

Translation:  We've made it financially untenable for anyone without
a legal staff and $750 of disposable income to register a domain name.
We're trying to sneak this by, at the last minute, in contrast to
the patently absurd "Sunrise +20", hoping a few fence-sitters will 
fall for it.  And we've taken it upon ourselves to amend the UDRP
for all new TLDs created, though we tried to word it in such a way that
it would seem innocuous.

> Under the current system, a $20 dollar domain name
> registration imposes upon the Complainant an obligation to initiate a $750
> dollar proceeding. However, under the current proposal, people engaged in
> abusive domain name registrations would be reluctant to expand any
> investment in bad faith registrations if they would be required to invest
> several hundred dollars in a potential losing cause.

Mike, _ANYONE_ would be reluctant to register a domain name under these
circumstances, except for people who can afford to throw away $750 if
a group of lawyers don't side with another group of lawyers, the former
looking at a payoff if they side with the latter.

>  Finally, this system
> allows individual and small business the opportunity to register a domain
> name of their choice and only have to expend a nominal fee to defend their
> registrant if it is challenged, with the guarantee that if they prevail they
> will be refunded their deposit.

*BOGGLE* I have no idea what world _you_ live in, Mike, but $750 is by
no means 'a nominal fee' for individuals, small businesses, and
non-commercial interests.  And that's just in the US, which has the
highest mean and median per capita income on the planet.

I can forsee a potential next tack for this, in which you or others are
going to make a pass at concilation here, and suggest that instead the
$750 be lowered to something acceptible to all parties.  I don't care
if it's lowered to $5, it's still ridiculous and offensive.   You're
making an end-run around all the work put forth in the UDRP, you're
turning the arbitration process into a for-profit industry on par
with that of registrars, and you're stacking the deck against anyone
unwilling to pay for the pleasure of having some lawyer accuse one
of cybersquatting.

Mark C. Langston
Systems & Network Admin
San Jose, CA