Hi All,

First, thank you, Steve, Graeme and All. I know a lot of people have spent a lot of time in the IP and Registrar Communities working on this draft. Tx you – and appreciate your invitation to comments and concerns!

I have reviewed the Draft carefully and have some initial comments to share.  Although I spoke with people in the WG while preparing them, these comments are my own.(If there is problem with the formatting below, please let me know.)

1.       General Comments

a.       `Let’s make the wording more neutral. Let’s add “alleged” or “claimed” in all references of infringement (e.g., trademarks, copyrights of domain names/websites. Another good term would be “claimed infringement” -- which is the one used in similar sections of the Digital Millennium Copyright Act to the sections we are working on here. 

 

2.       More substantive comments

a.       Are we missing levels of protections for the Customer/Registrant?  In the Digital Millennium Copyright Act (DMCA), there were two levels of protections for the “users.” 

                                                               i.      The first was sanctions for misrepresentation. Basically, any company which knowingly materially misrepresents that material or activity is infringing is liable for damages, including costs and attorney fees caused from injury resulting from the misrepresentation. Don’t we need similar sanctions here?

 

                                                             ii.      A much higher bar for revealing the identity of the alleged infringer. The DMCA allows rapid takedown based on statements very similar to the one we proposing, but Reveal is a whole different story.  The standard is much higher and goes through Court. Thus US Copyright Code, Sec 512(h), requires a subpoena to reveal data:

a.       [Section 512] “(h) SUBPOENA TO IDENTIFY INFRINGER-

`(1) REQUEST- A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection…

 

Shouldn’t we have a higher standard too?  It seems important to balance the rights of both sides, including whether the Allegation of Illegality sufficiently outweighs the Privacy Interests and Rights of the Battered Women’s Shelter, Online Magazine or Bloggers posting unpopular views of corruption. 

 

                                                          iii.      A deep concern about default. As I read the rules, if you don’t respond, you lose and your data is revealed.  But this is a problem because we can think of many reasons why Customers/Registrants would not respond. For example:

a.       Request came at the beginning of August,

b.      Request disappeared into spam;

c.       Registrant/Customer is unable to respond (perhaps language barriers); and/or

d.      Registrant/Customer is scared to respond.

 

2.      I would submit that in something as important as revealing identity and physical locations, there should be no automatic default. It is completely possible that a) the allegations are incorrect on their face (no jurisdictional overlap, for example), or b) that there are clear defenses on “its face,” e.g., on the website.

 

Thus, an anti-bullying group may post the copyrighted logo of a gang engaging in bullying (or worse) in a local school or neighborhood; is so, the gang’s allegation of copyright infringement could be clearly weighed against the “safe neighborhoods for all” activity taking place on the website.

 

Similarly, an online publication in Europe may have every right to use the logo and trademark of a large multinational it is criticizing, or the image of Mohammed, without having its identity and address revealed without due process.

 

Ditto for a battered women’s shelter posting a copyright logo, motto or design and urging women to watch for it and those bearing it.

 

Due process is not automatic default, but a full and fair review of the website and other reachable information, even if the Customer/Registrant is unable to respond for herself or himself.

 

3.       Option: we might consider Third Party or Independent Review. This is something that Steve and Graeme’s draft have already suggested for rejections of IP Owner Requests. It could serve Customers too by creating a review of default situations – or perhaps an independent forum for Service Providers who choose to outsource this difficult evaluation.  

 

                                                           iv.      Privacy of communication between Customers and their Providers . The rules of Section III(A) seem to bar private communication with your Provider. Everything a Customer/Registrant might write to their Provider must be passed on verbatim (if I read this correctly).  But that’s a problem for those with English as a second language (or third) or those without lawyers, and those simply trying to explain in clear and informal language to explain this situation. 0What will happen, I am concerned, is that whatever informal response a Customer provides to its Provider will operate (unintended) as an Admission Against Interest or an unintended Waiver.   

Further, the Customer/Registrant might inadvertently reveal a bit about their identity or even location – trying to explain their position clearly to the Provider – and this should not be passed on to the Requester automatically either.  I am not sure of th answer here as IP Owners should know something about the response, but not necessarily the full communication of the Customer (e.g., he is stalking me).

Thanks for reading! 

Best,

Kathy