I am currently litigating this issue against NameCheap. They have been providing proxy service for spammers. In the past, they had been sanctioned for failing to respond to subpoenas requesting information on domains that they protect for spammers. Since ICANN included no 3rd party beneficiary language in the registrar-registrant agreements, the only way to get results is to hold proxy service providers liable for the acts of the people they license the domain to.

I know a bit about this as I have been dealing with this issue.

Actually the party registering these domains not only targets the marks of Louis Vuitton, but also other brands like Nike, Oakley etc.

This party regularly spams forums in an effort at getting quick search engine results. URLs would be spammed to three or four domain names at a time per spam.

Now, quite topical and linked to the WHOIS disccusion: This party regularly uses fake whois. This party uses the registrar's DNS servers for his domain (some in the USA).

Where I pointed these issues out to one of the USA's largest registrars recently, they tried fobbing it off as a trademark issue.

When I "explained" there minimal obligations to them, they turned it into a whois issue and one the domains I mentioned later underwent I whois change, but other discrepancies remained.

The thing is the registrant has an extensive domain portfolio and I suspect the registrar did not want to lose this party's business.

It sure makes you think ....

On 5/14/2012 5:38 AM, Carlton Samuels wrote:

...

Thanks for this Dev.

On the bright side, these fellows are taking action in court and using applicable US law, not the summary extra-judicial seizures of Homeland Security/ICE. A third party must be convinced of the merits of the case.

They invoked provisions of Lanham; 15 USC 1125(d), to wit:

'(d) *Cyberpiracy prevention* (1) (A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person— (i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and (ii) registers, traffics in, or uses a domain name that— (I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; (II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or (III) is a trademark, word, or name protected by reason of section 706<http://www.law.cornell.edu/uscode/text/18/706> of title 18 <http://www.law.cornell.edu/uscode/text/18> or section 220506<http://www.law.cornell.edu/uscode/text/36/220506> of title 36 <http://www.law.cornell.edu/uscode/text/36>.' They 'pray' judgment on all counts as well as '*equitable relief against defendants*'. The judge's response to that second part is to be keenly watched.

While the counts could be mistakenly conflated and to ICANN's detriment, only one (1) of the four (4) alleged is really germane to ICANN interests; Count III: Claim for Relief of Cybersquatting.

Here's what the writ of mandamus prays in respect of the 381 domains:

"b. Entry of an order requiring the Subject Domain Names, and any other domain names being used by Defendants to engage in the business of marketing, offering to sell and/or selling goods bearing counterfeits and infringements of the Louis Vuitton Marks to be disabled and/or immediately transferred by Defendants, their Registrars and/or the Registries to Louis Vuitton’s control so they may no longer be used for illegal purposes.

c. Entry of an Order that, upon Louis Vuitton’s request, the top level domain (TLD) Registries for the Subject Domain Names and their administrators place the Subject Domain Names on Registry Hold status, thus removing them from the TLD zone files maintained by the Registries which link the Subject Domain Names to the IP addresses where the associated websites are hosted.

d. Entry of an Order that, upon Louis Vuitton’s request, those in privity with Defendants and those with notice of the injunction, including any Internet search engines, Webhosts, domain-name registrars and domain-name registries or their administrators that are provided with notice of the injunction, cease facilitating access to any or all domain names and websites through which Defendants engage in the sale of counterfeit and infringing goods using the Louis Vuitton Marks.

e. Entry of an order that, upon Louis Vuitton’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the Registrars and the top level domain Registries or their administrators responsible for the Subject Domain Names transfer, change the Registrar of Record, and/or disable the Subject Domain Names as directed by the Court. "

Let's see what happens now.

- Carlton

============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================

On Fri, May 11, 2012 at 9:57 AM, Dev Anand Teelucksingh <devtee@gmail.com>wrote:

...

GigaOM article : Louis Vuitton asks for SOPA-like seizure of hundreds of websites

http://gigaom.com/2012/05/11/louis-vuitton-asks-for-sopa-like-seizure-of-hun...

The injunction order filed in the Florida court http://www.scribd.com/doc/93228219/Louis-Vuittion-Complaint

lists the 381 domains and the filed injunction includes "..Entry of an order that, upon Louis Vuitton’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the Registrars and the top level domain Registries or their administrators responsiblefor the Subject Domain Names transfer, change the Registrar of Record, and/or disable the Subject Domain Names as directed by the Court."

---

Dev Anand Teelucksingh

_______________________________________________ lac-discuss-en mailing list lac-discuss-en@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/lac-discuss-en

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

On 05/14/2012 12:59 PM, Carlton Samuels wrote:

Note the recommendation:

The RT is in favour of " *a clear, unambiguous and enforceable chain of **contractual agreements with registries, registrars, and registrants to require the **provision and maintenance of accurate WHOIS data*.".

That is a far cry from a third-party-beneficiary rule. The sentence you quote essentially says "The RT is in favour of the status quo". What Bill S. was asking for was a third party beneficiary provision that gives designated third party individuals or classes (who might not even be registrants, registrars, or registries - or anybody else associated with ICANN) the power to enforce the contractual terms even if one of the actual parties to the contract doesn't come forward to enforce it itself. In general I think that ICANN has done a lousy job in that it has very expressly rejected third party beneficiary rights in anything it does ever since it was formed. We saw that happen most forcefully in the RegisterFly situation where ICANN failed to enforce contract terms while registrants were being harmed left and right. (I do, however, believe that the whois is a privacy disaster, that the report contains a revisionist history to support its conclusions, that there are plenty of means to go after evil doers even if those means might be less convenient than a rope and a nearby tree, and that there is a lot of post hoc ergo hoc logic going in that those who are accused are stripped of protections merely because they have been accused.) --karl--

The sentence you quote essentially says "The RT is in favour of the status quo".

No, it's in favor of doing what ICANN has sort of said they'd do but never actually done. I think a 3rd party rule would be nice, but I'd rather have useful data without it than the current half-useless data with it.

(I do, however, believe that the whois is a privacy disaster

The anonymity for criminals with vanity domains argument is so 20th century. R's, John

I thought a criminal was someone convicted of a crime by a court.

No, a criminal is someone who has committed a crime. A convicted criminal is someone who's been convicted by a court. Or are you saying that if I beat you to death with a rock, then ran away leaving insufficient clues for law enforcement to catch me, I wouldn't be a criminal? R's, John

...

The anonymity for criminals with vanity domains argument is so 20th century.

If you did it in self-defense (for instance), you wouldn't be a criminal. That's why we have courts. Accusation is insufficient.

I have to say I'm not at all understanding what point you're trying to make. R's, John

On 05/14/2012 03:13 PM, John R. Levine wrote:

...

I thought a criminal was someone convicted of a crime by a court.

No, a criminal is someone who has committed a crime. A convicted criminal is someone who's been convicted by a court.

Or are you saying that if I beat you to death with a rock, then ran away leaving insufficient clues for law enforcement to catch me, I wouldn't be a criminal?

That's leaping to a conclusion... Perhaps you had justification or you are incompetent or there was a war going on - in which case there would have been no crime committed. Until there has been an accusation supported by sufficient concrete evidence to form "probably cause" as measured by an independent and disinterested third party the accused should enjoy full liberty of action. And until there has been a prompt and fair trial with due process the accused is merely an accused and should have full rights and protections. Otherwise we are just laying the first bricks of iGuantanamo Bay. What I am hearing here is that some people want a mere and naked accusation to cause the accused to suffer instantaneous loss of rights and privileges. Yes, there have been systems of governance built that way. But I tend to find those kinds of accuse-execute-and-let-god-sort-out-the-innocent systems to be somewhat mediaeval. I prefer systems in which those who chose to accuse and prosecute should have to work to gather evidence and prove their cases *before* the accused is condemned and handed over to the secular branch. --karl--

Cybercrime is real crime. Lots of crime is real. Society has come up with methods to deal with real crime. Throughout the developed world, those methods are remarkably similar. They include an investigation, an indictment, an arrest (sometimes), a procedure to determine if the accusation is warranted and proven, and if so then some kind of penalty. I'm totally in favor of prosecuting crime. There are established ways of doing that. Tearing down hundreds of years of jurisprudence because the crime is committed via the Internet instead of (for instance) the telephone, seems to me unwarranted. I appreciate that you see the victims, that you are in the trenches seeing the damage they wreak. But I don't think that calls for the wholesale dismantling of well established procedures. That's just my view, but I've been following this debate for many years and nothing has made me think that this crisis is so severe that we should think casually about rejecting basic protections for the accused. I believe that this is dangerous. Antony On May 14, 2012, at 4:49 PM, Derek Smythe wrote:

On 5/14/2012 11:25 PM, Antony Van Couvering wrote:

...

I thought a criminal was someone convicted of a crime by a court.

criminal (noun): a person who commits a crime crime (noun): activities that involve breaking the law

I actually find it pathetic that we are debating this. But here goes...

We all (should) know we cannot simply walk into a stranger's house and steal his property. Nor can we go into his bank and pretend to be him, stealing his money.

The virtual nature of the net does not change that. What it does change is it's international reach allowing criminals to evade prosecution. Yet the crimes are still as real.

If it takes a conviction to label the actions parties criminal or label those committing fraud criminals, we would have hardly any criminals on the net.

I find it sad that the laws of most countries have clauses like losses under XXX, losses over XXX. Effectively that means most criminals will never be prosecuted due to the international nature of the internet. This is an insult to the victims of "under XXX" who will never see justice, yet they also have rights. If you explain the happy-go-lucky unaccountable nature of the Internet, they cannot belive it. The current system is failing these victims. We can quote those lovely terms like the "The Budapest Convention on Cyber Crime" etc, yet the reality is it is not stopping cyber crime since even these agreements do not cover all the countries. Even where they do, the one country may attach a different priority to it since they are not affected.

Even most of the lottery/pet/fake-shop/auction scammers know how to stay under the radar by regularly changing identities and defrauding in small amounts, using all those anonymizing mechanisms the internet provides free of charge to "protect your privacy". This hypocrisy is even apparent at some domain registrars and resellers, selling trust and stability away $10 a shot then turning a blind eye to the wrong doing.

How many real victims to fraud do we have vs the hypothetical political refugee trying to use the net for his plight? Why should those daily real unwilling victims be sacrificial lambs for the hypothetical politically prosecuted? What gives the one more right than the other? I would love to see how many refugees use the domains on the net as a platform vs actual daily victims to fraud. I am sure those hypothetical refugees would not be registering in their own domains anyway even if the wanted to. They would be sure to find a trusted sponsor abroad.

So let's keep this real please. Cyber crime is no less real than crime. Those victims also have rights. I have met many victims to cyber crime (three again today alone). But I have yet to meet "that" political refugee wishing to register a domain in his own name using a proxy service to voice his opinions.

Derek _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

Nobody is saying we should be vigilantes. What I am saying is we have to give law enforcement the tools to be able to do their work. At the same time we should take cognizance of the international nature of the net. A while back we drew the analogies between real world proxy registrations and the sad excuse for it we see on the net, which is nothing else than crime facilitation for whosoever wishes so. Trying to make criminal abuse issues the responsibility of law enforcement while we create the perfect system for criminals is what has been happening; Fake whois, no whois collected, anonymous proxies with no logs, methods of anonymous funds transfers etc, the list goes on and on. Then we bless it with "privacy". Yet all these various service providers in the internet industry each use the "LE" crutch, making it a virtually impossible task for these officials to effectively protect us. However talking about a criminals and criminality is what is happening and topical. Do we allow the mechanism to be abused, or do we build in check and balances? On 5/15/2012 2:10 AM, Antony Van Couvering wrote:

Cybercrime is real crime. Lots of crime is real. Society has come up with methods to deal with real crime. Throughout the developed world, those methods are remarkably similar. They include an investigation, an indictment, an arrest (sometimes), a procedure to determine if the accusation is warranted and proven, and if so then some kind of penalty.

I'm totally in favor of prosecuting crime. There are established ways of doing that. Tearing down hundreds of years of jurisprudence because the crime is committed via the Internet instead of (for instance) the telephone, seems to me unwarranted. I appreciate that you see the victims, that you are in the trenches seeing the damage they wreak. But I don't think that calls for the wholesale dismantling of well established procedures.

That's just my view, but I've been following this debate for many years and nothing has made me think that this crisis is so severe that we should think casually about rejecting basic protections for the accused. I believe that this is dangerous.

Antony

On May 14, 2012, at 4:49 PM, Derek Smythe wrote:

...

On 5/14/2012 11:25 PM, Antony Van Couvering wrote:

...

I thought a criminal was someone convicted of a crime by a court.

criminal (noun): a person who commits a crime crime (noun): activities that involve breaking the law

I actually find it pathetic that we are debating this. But here goes...

We all (should) know we cannot simply walk into a stranger's house and steal his property. Nor can we go into his bank and pretend to be him, stealing his money.

The virtual nature of the net does not change that. What it does change is it's international reach allowing criminals to evade prosecution. Yet the crimes are still as real.

If it takes a conviction to label the actions parties criminal or label those committing fraud criminals, we would have hardly any criminals on the net.

I find it sad that the laws of most countries have clauses like losses under XXX, losses over XXX. Effectively that means most criminals will never be prosecuted due to the international nature of the internet. This is an insult to the victims of "under XXX" who will never see justice, yet they also have rights. If you explain the happy-go-lucky unaccountable nature of the Internet, they cannot belive it. The current system is failing these victims. We can quote those lovely terms like the "The Budapest Convention on Cyber Crime" etc, yet the reality is it is not stopping cyber crime since even these agreements do not cover all the countries. Even where they do, the one country may attach a different priority to it since they are not affected.

Even most of the lottery/pet/fake-shop/auction scammers know how to stay under the radar by regularly changing identities and defrauding in small amounts, using all those anonymizing mechanisms the internet provides free of charge to "protect your privacy". This hypocrisy is even apparent at some domain registrars and resellers, selling trust and stability away $10 a shot then turning a blind eye to the wrong doing.

How many real victims to fraud do we have vs the hypothetical political refugee trying to use the net for his plight? Why should those daily real unwilling victims be sacrificial lambs for the hypothetical politically prosecuted? What gives the one more right than the other? I would love to see how many refugees use the domains on the net as a platform vs actual daily victims to fraud. I am sure those hypothetical refugees would not be registering in their own domains anyway even if the wanted to. They would be sure to find a trusted sponsor abroad.

So let's keep this real please. Cyber crime is no less real than crime. Those victims also have rights. I have met many victims to cyber crime (three again today alone). But I have yet to meet "that" political refugee wishing to register a domain in his own name using a proxy service to voice his opinions.

Derek _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

On 5/15/2012 3:49 AM, Karl Auerbach wrote:

Having seen official bad acts, including police murder of a naked man, I am not one to concede the height of wisdom and unbiased justice to those who carry the banner of "law enforcement".

By the same token we could refer to lawyers that got greedy and pilfered trust funds. we could talk about magistrates that turned out to be pedophiles .... At least the bulk of these are traceable and can be held accountable. Bad deeds comes down to individuals. Generalizing helps nobody but statistics would help. If we do not allow the police to investigate crime, what do we tell the greater unwashed that are constantly victims to cyber fraud? Internet or not. Or do we simply accept we are now so neurotic that police which are an integral part of law and order in civilized society, should disappear. Then, with a big part of the enforcement system gone, we are doomed to descend into anarchy? And once they have somehow gotten past that not so small hurdle, what do we tell those victims once privacy as it stands now is uncovered and it's just more of the same old junk whois data? A lawyer in Somalia and Hong Kong maybe who is guaranteed to obstruct any investigation? I have no problem with privacy. I'm saying the current farce that is held up for privacy protection should not be simply another layer for criminals to use, whoever they may be. This simply further facilitates crime and unaccountability. Also note there is a big leap between saying so-and-so is a criminal, vs referring to an incident where a criminal perpetrated a crime. If someone sells something on the net, using a "courier" website with a domain deliberately meant to deceive, that is fraud By the time this pattern has repeated 10 or 20 times, there is no doubt we have a crime with a criminal or criminals committing fraud. Likewise, if I register a domain to commit fraud using identity theft, it is also a crime. If I am in the position to identify the perpetrator, that information goes to the relevant law authorities to trace and name the criminal. D

Karl, Owners of properties information are a matter of public record in this county. In most states the identities of the owners of corporations are public record. Fictitiously named businesses are a matter of public record. Even if the owners' address of all the above are not listed, in most cases, the identity of the person who is authorized to receive service of process are available. You also ignore that in a majority of the smaller crimes, that law enforcement will not do anything about it unless handed a nice tidy package with a bow on it.

On 05/14/2012 05:44 PM, Derek Smythe wrote:

...

Nobody is saying we should be vigilantes. What I am saying is we have to give law enforcement the tools to be able to do their work. At the same time we should take cognizance of the international nature of the net.

Those tool, at least here in the US, are called a subpoena, or a search warrant, an indictment, etc.

There are rules about how those are executed and issued.

Police have always found them inconvenient.

But then again, all rights are inconvenient to those who wish to intrude upon them.

Here in the US even those accused of being "terrorists" get the benefit of a FISA court.

It strikes me as odd that those accused of internet bad acts are deserving of fewer protections than that accused terrorist with the ticking bomb.

Having seen official bad acts, including police murder of a naked man, I am not one to concede the height of wisdom and unbiased justice to those who carry the banner of "law enforcement".

Breaching Whois privacy may seem a small step, a small price. But as Avri points out, it is not hard to see where protection of identity on the internet *is* important and of great social value.

--karl-- _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

What is the RT? CW On 14 May 2012, at 23:18, John R. Levine wrote:

...

The sentence you quote essentially says "The RT is in favour of the status quo".

No, it's in favor of doing what ICANN has sort of said they'd do but never actually done. I think a 3rd party rule would be nice, but I'd rather have useful data without it than the current half-useless data with it.

...

(I do, however, believe that the whois is a privacy disaster

The anonymity for criminals with vanity domains argument is so 20th century.

R's, John _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

On 14 May 2012 17:18, John R. Levine <johnl@iecc.com> wrote:

(I do, however, believe that the whois is a privacy disaster

The anonymity for criminals with vanity domains argument is so 20th century.

In my own opinion, the argument about providing privacy to domain owners *must* be decoupled from the matter of WHOIS accuracy and stability. The unwillingness to decouple these issues has been an impediment to sane policy, and I see this report as a step in the right direction. There are discussions over tactics that could be done to enhance privacy protections for those who are not using it to defraud, but those discussions are IMO unrelated to the more common-sense matter of registrants providing deliberately obfuscated contact information. (Ultimately, I would wish to dig even deeper than this, and challenge the widely-held-within-ICANN assumption that everyone on earth ought to own at least one domain. This unspoken assumption drives everything from WHOIS policy, to attitudes on domaining and the new gTLD program, to ICANN's warped definition of "consumer". IMO this assumption needs to be exposed, confronted, and beaten down with a stick.) - Evan

Karl: So you're not so happy that in the RT's construct, standing to contest is not granted to other than those groups or classes now enumerated. I should think the RT's major concern is vested in the term 'enforceable'. Maybe what we need to do is contest a broader/fuller meaning of the term 'enforceable' and petition for unnamned classes to be added and given standing, no? Best, - Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* ============================= On Mon, May 14, 2012 at 3:29 PM, Karl Auerbach <karl@cavebear.com> wrote:

On 05/14/2012 12:59 PM, Carlton Samuels wrote:

...

Note the recommendation:

The RT is in favour of " *a clear, unambiguous and enforceable chain of **contractual agreements with registries, registrars, and registrants to require the **provision and maintenance of accurate WHOIS data*.".

That is a far cry from a third-party-beneficiary rule.

The sentence you quote essentially says "The RT is in favour of the status quo".

What Bill S. was asking for was a third party beneficiary provision that gives designated third party individuals or classes (who might not even be registrants, registrars, or registries - or anybody else associated with ICANN) the power to enforce the contractual terms even if one of the actual parties to the contract doesn't come forward to enforce it itself.

In general I think that ICANN has done a lousy job in that it has very expressly rejected third party beneficiary rights in anything it does ever since it was formed. We saw that happen most forcefully in the RegisterFly situation where ICANN failed to enforce contract terms while registrants were being harmed left and right.

(I do, however, believe that the whois is a privacy disaster, that the report contains a revisionist history to support its conclusions, that there are plenty of means to go after evil doers even if those means might be less convenient than a rope and a nearby tree, and that there is a lot of post hoc ergo hoc logic going in that those who are accused are stripped of protections merely because they have been accused.)

--karl--

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org