All,
The Agenda for our meeting tomorrow appears to set a goal of
finishing our discussion on Category F-- "Conclude discussion of
framework for Category F (see attached document)." While Staff has
done a great job catching many changes we proposed (tx you!), there
are more that have been proposed and not objected to. There are even
more changes and edits that we have not gotten to as we have not yet
moved to all topics, including Annexes, etc.
Therefore, with respect and concern for the desire to move forward,
I share a version with the changes we have proposed, and a few that
we need to propose:
- Section I.B that Providers be allowed to share information about
Requestors who abuse their system (absent sanctions for abuse, which
we have not yet defined, this is an alternative protection) -- and
earlier proposed.
- Section II.A,B,C that Requestors provide the name, address,
telephone number of the trademark owner as well as his/her/its
representative. The representative (such as an attorney) may or may
not be in the same jurisdiction as the trademark or copyright owner,
and we don't want to track down first the counsel and later the
trademark owner. It should all be in one place... also, if the
signatory is not the Trademark Owner, who are they? As their
statement under Penalty of Perjury is set out as a protection for
the Customer, who they are and under what color of authority they
represent the IP owner is a key piece of information in this
process.
- Section III.A that 15 calendar days for a Customer response. We
are told by groups engaged actively in the reveal process in other
areas that 15 is really the minimum for receiving, researching,
contacting experts, and responding. They actually recommend 30
days...
- Section III.C.3 that Provider may act on this own information and
research in the case Customer does not or is unable to respond
(e.g., August action and Battered Women's Shelter, Neighborhood
Safety Program, well-known magazine).
- Section III.C.5 that Provider may adopt the standard of obvious
clear-cut infringement absent clear or reasonable defense.
- Section III.D adds "lack of" to the full list of pending
proceedings which, if they are taking place, the Provider may choose
not to act until completed.
- Section III.G is the proposed new section:
Nothing in this proposal shall
prohibit a Provider
from determining the Customer’s use of the Service may violate its
terms of
service and reveal the underlying information despite the criteria
of this
proposal not being met.
- ANNEX: Many questions regarding the Annex, including whether an
appeals process has been agreed to? If so, it should be balanced,
with access to both Requestors and Customers, and limited so that
Providers do not have to face an appeal of each and every decision -
but only exceptions or controversies passing a high threshold. This
draft tries to offer balancing language, but this is an area which
we have not discussed I would ask the Chairs to spend at least one
session on it before we finalize language and send it out for public
comment. Certainly the standard for action in bad faith from the
requestor should be "knowingly false representations to the
Provider," not "knowingly false representations to the Provider with
intent to deceive." Providing "intent to deceive" is an almost
impossible standard requiring Providers and Customers to know what
was in the head and heart of the Requestor. A knowingly false
statement to the Provider on the few key pieces of information a
Requestor is asked to provide should be sufficient -- especially in
a matter as significant as a Reveal -- and sufficiently hard for a
Provider or Customer to prove...
Everything in "Track Changes." Doc attached.
Best,
Kathy