PPSAI - Proposed language on attestation
Dear all: Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.” We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.” These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image143f58.JPG@618ca7b2.49807542]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
"I have the authority to make the representations and claims in this request" is useful, but how does a consultant bind Procter & Gamble to the limitations on the use of the revealed data? Best, Kathy :
Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best,
Val
Valeriya Sherman <http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> |Attorney at Law
202-973-2611 /phone/ 202-263-4326 /fax/ /www.sgrlaw.com <http://www.sgrlaw.com> vsherman@sgrlaw.com <mailto:vsherman@sgrlaw.com>/
//
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
/Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia./
<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
------------------------------------------------------------------------ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
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The agency relationship effectively binds the parties to each other's representations. K Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Apr 3, 2015, at 6:58 AM, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote: "I have the authority to make the representations and claims in this request" is useful, but how does a consultant bind Procter & Gamble to the limitations on the use of the revealed data? Best, Kathy : Dear all: Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.” We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.” These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. <mime-attachment.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Hi All, Not true in my experience. Consultants frequently have a narrow scope of work, often make representations and operate outside of it, and are rarely able to bind the companies for whom they work except for very narrow and pre-assigned ways. It's a great way of providing plausible deniability to their clients. Attorneys know their scope of engagement, know the limits of their work, and when they may bind their clients. Attorneys are bound by both obligations to their clients and obligations/ethics as members of their bar associations; they are the right people to make the allegation of infringement (assuming IP is their specialty)and to create binding commitments on their clients re: the revealed data (and officers of the company for those too small to have counsel). They can oversee consultants and clerks.. The last thing I want to be doing when my data is revealed to the wrong party is litigating the scope of agency of the consultant... Which reminds me, that we should be talking about jurisdiction where the trademark attorney (not the attorney) agrees to be bound when the Reveal is challenged in court. Happy Easter! Happy Passover! Best, Kathy :
The agency relationship effectively binds the parties to each other's representations.
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 3, 2015, at 6:58 AM, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote:
"I have the authority to make the representations and claims in this request" is useful, but how does a consultant bind Procter & Gamble to the limitations on the use of the revealed data?
Best, Kathy : Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<mime-attachment.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
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I agree with Kiran. Sent from my iPhone
On Apr 3, 2015, at 5:31 PM, Kathy Kleiman <kathy@kathykleiman.com> wrote:
Hi All, Not true in my experience. Consultants frequently have a narrow scope of work, often make representations and operate outside of it, and are rarely able to bind the companies for whom they work except for very narrow and pre-assigned ways. It's a great way of providing plausible deniability to their clients.
Attorneys know their scope of engagement, know the limits of their work, and when they may bind their clients. Attorneys are bound by both obligations to their clients and obligations/ethics as members of their bar associations; they are the right people to make the allegation of infringement (assuming IP is their specialty)and to create binding commitments on their clients re: the revealed data (and officers of the company for those too small to have counsel). They can oversee consultants and clerks..
The last thing I want to be doing when my data is revealed to the wrong party is litigating the scope of agency of the consultant...
Which reminds me, that we should be talking about jurisdiction where the trademark attorney (not the attorney) agrees to be bound when the Reveal is challenged in court.
Happy Easter! Happy Passover! Best, Kathy :
The agency relationship effectively binds the parties to each other's representations.
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 3, 2015, at 6:58 AM, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote:
"I have the authority to make the representations and claims in this request" is useful, but how does a consultant bind Procter & Gamble to the limitations on the use of the revealed data?
Best, Kathy : Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<mime-attachment.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
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Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues aLetter of Delegation ofAuthorityfor Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letterwouldinclude the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared.This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- :
Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best,
Val
Valeriya Sherman <http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> |Attorney at Law
202-973-2611 /phone/ 202-263-4326 /fax/ /www.sgrlaw.com <http://www.sgrlaw.com> vsherman@sgrlaw.com <mailto:vsherman@sgrlaw.com>/
//
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
/Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia./
<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
------------------------------------------------------------------------ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
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Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don't think ICANN has any business attempting to interfere in attorney/client relationships - that is clearly outside of our scope and ICANN's remit. Best, Paul Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> [Winston & Strawn LLP] From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letter would include the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- : Dear all: Following up on our productive discussion earlier this week, we'd like to offer a suggestion to modify the "attestation" provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: "Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request." We could even spell out the statement for the signatory to make in conjunction with each request : "I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request." These statements of authority and agency are to be made in good faith, under the penalty of perjury - just like representations forming the basis for the request and the requestor's promise to use the data disclosed only for limited enumerated purposes - and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image002.jpg@01D07137.B4115880]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg The contents of this message may be privileged and confidential. 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Kathy, I fully agree with Paul. Jim James L. Bikoff<http://www.sgrlaw.com/attorneys/profiles/bikoff-james/> | Attorney at Law 202-263-4341 phone 202-263-4329 fax www.sgrlaw.com<http://www.sgrlaw.com> jbikoff@sgrlaw.com<mailto:jbikoff@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 [cid:imagefb89cc.JPG@f91f4d3f.43afca27]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of McGrady, Paul D. Sent: Tuesday, April 07, 2015 2:36 PM To: Kathy Kleiman; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit. Best, Paul Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> [Winston & Strawn LLP] From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letter would include the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- : Dear all: Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.” We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.” These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image002.jpg@01D07141.0FA3A460]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. 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Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data. What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received. The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed... Best, Kathy :
Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best,
Paul
*Paul D. McGrady Jr.*
*Partner *
*Chair, Trademark, Domain Names and Brand Enforcement Practice *
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio <http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard <http://www.winston.com/vcards/996.vcf> | Email <mailto:pmcgrady@winston.com> | winston.com <http://www.winston.com>
Winston & Strawn LLP
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Kathy Kleiman *Sent:* Tuesday, April 07, 2015 8:19 AM *To:* gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues aLetter of Delegation ofAuthorityfor Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letterwouldinclude the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question.
- Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider.
---
:
Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best,
Val
*Valeriya Sherman <http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> |**Attorney at Law***
202-973-2611 /phone/ 202-263-4326 /fax/ /www.sgrlaw.com <http://www.sgrlaw.com>// /vsherman@sgrlaw.com <mailto:vsherman@sgrlaw.com>//
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
/Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office.// /She is not admitted in the District of Columbia.//
*<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP *
------------------------------------------------------------------------
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I'm sorry, I'm getting quite confused on this part. Ultimately what we're discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we've been discussing is when can/should/must accredited P/P Providers disclose? We've developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val's language as to what that attestation should look like). So far that all makes sense to me. But now we're debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn't have anything to do with the P/P providers whom ICANN will be accrediting - right? As Kathy mentioned below, the forms will not "be delivered to the Provider and certainly not checked, verified or confirmed by the Provider." But if that's the case - meaning that the P/P Provider is completely out of the loop - then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn't checking, verifying, or confirming it, and in fact may never see it? I guess I don't see the contractual "hook" any more. To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be "available for audit" - audit by whom? By ICANN? Bottom line: I would think that the most that we can do is perfect Val's attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don't see how. From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data. What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received. The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed... Best, Kathy : Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don't think ICANN has any business attempting to interfere in attorney/client relationships - that is clearly outside of our scope and ICANN's remit. Best, Paul Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> [Winston & Strawn LLP] From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letter would include the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- : Dear all: Following up on our productive discussion earlier this week, we'd like to offer a suggestion to modify the "attestation" provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: "Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request." We could even spell out the statement for the signatory to make in conjunction with each request : "I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request." These statements of authority and agency are to be made in good faith, under the penalty of perjury - just like representations forming the basis for the request and the requestor's promise to use the data disclosed only for limited enumerated purposes - and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image002.jpg@01D071DE.63E206A0]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg The contents of this message may be privileged and confidential. 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Hi Todd, it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows. ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered. In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action. Volker Am 08.04.2015 um 15:29 schrieb Williams, Todd:
I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Kathy Kleiman *Sent:* Tuesday, April 07, 2015 3:24 PM *To:* McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best, Kathy
:
Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best,
Paul
*Paul D. McGrady Jr.*
*Partner *
*Chair, Trademark, Domain Names and Brand Enforcement Practice *
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio <http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard <http://www.winston.com/vcards/996.vcf> | Email <mailto:pmcgrady@winston.com> | winston.com <http://www.winston.com>
Winston & Strawn LLP
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Kathy Kleiman *Sent:* Tuesday, April 07, 2015 8:19 AM *To:* gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues aLetter of Delegation ofAuthorityfor Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letterwouldinclude the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question.
- Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider.
---
:
Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best,
Val
*Valeriya Sherman <http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> |**Attorney at Law*
202-973-2611 /phone/ 202-263-4326 /fax/ /www.sgrlaw.com <http://www.sgrlaw.com>// /vsherman@sgrlaw.com <mailto:vsherman@sgrlaw.com>//
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
/Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office.// /She is not admitted in the District of Columbia.//
*<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP *
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the "i"s and crossing the "t"s in this context means including Val's attestation language - such that a contracted party can ignore a complaint that doesn't do that - I'm fine with that. But I don't think that's what we're talking about. We're talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn't going to have to check, verify, or confirm that form (and I don't think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that's where I get confused. From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Hi Todd, it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows. ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered. In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action. Volker Am 08.04.2015 um 15:29 schrieb Williams, Todd: I'm sorry, I'm getting quite confused on this part. Ultimately what we're discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we've been discussing is when can/should/must accredited P/P Providers disclose? We've developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val's language as to what that attestation should look like). So far that all makes sense to me. But now we're debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn't have anything to do with the P/P providers whom ICANN will be accrediting - right? As Kathy mentioned below, the forms will not "be delivered to the Provider and certainly not checked, verified or confirmed by the Provider." But if that's the case - meaning that the P/P Provider is completely out of the loop - then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn't checking, verifying, or confirming it, and in fact may never see it? I guess I don't see the contractual "hook" any more. To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be "available for audit" - audit by whom? By ICANN? Bottom line: I would think that the most that we can do is perfect Val's attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don't see how. From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data. What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received. The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed... Best, Kathy : Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don't think ICANN has any business attempting to interfere in attorney/client relationships - that is clearly outside of our scope and ICANN's remit. Best, Paul Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> [Winston & Strawn LLP] From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letter would include the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- : Dear all: Following up on our productive discussion earlier this week, we'd like to offer a suggestion to modify the "attestation" provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: "Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request." We could even spell out the statement for the signatory to make in conjunction with each request : "I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request." These statements of authority and agency are to be made in good faith, under the penalty of perjury - just like representations forming the basis for the request and the requestor's promise to use the data disclosed only for limited enumerated purposes - and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image002.jpg@01D071E3.89B4B260]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
I agree with Todd. I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients. Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish. K Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> wrote: Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that. But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused. From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Hi Todd, it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows. ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered. In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action. Volker Am 08.04.2015 um 15:29 schrieb Williams, Todd: I’m sorry, I’m getting quite confused on this part. Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me. But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more. To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN? Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how. From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data. What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received. The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed... Best, Kathy : Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit. Best, Paul Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> <image001.jpg> From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letter would include the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- : Dear all: Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.” We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.” These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. <image002.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. 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Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients. As a registrar, I know this very feeling very well. But such is life... Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish. I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd: I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best, Kathy
: Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best, Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com>
<image001.jpg>
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. ---
: Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<image002.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
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--
Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
Mit freundlichen Grüßen,
Volker A. Greimann
- Rechtsabteilung -
Key-Systems GmbH
Im Oberen Werk 1
66386 St. Ingbert
Tel.: +49 (0) 6894 - 9396 901
Fax.: +49 (0) 6894 - 9396 851
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's. To your second, we are not going to complete and attach a power of attorney to every request. Thanks, Kiran Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net> wrote:
Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients. As a registrar, I know this very feeling very well. But such is life... Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish. I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd: I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best, Kathy
: Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best, Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com>
<image001.jpg>
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. ---
: Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<image002.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
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Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
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Key-Systems GmbH
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Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
--------------------------------------------
Should you have any further questions, please do not hesitate to contact us.
Best regards,
Volker A. Greimann
- legal department -
Key-Systems GmbH
Im Oberen Werk 1
66386 St. Ingbert
Tel.: +49 (0) 6894 - 9396 901
Fax.: +49 (0) 6894 - 9396 851
Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>
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Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
--------------------------------------------
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Best regards,
Volker A. Greimann - legal department -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net
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Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems
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This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Hi Kiran, it can be a general PoA but a PoA should be provided. Every lawyer making a legal request in Germany must, upon request, provide a copy of his PoA to the requestee. Providing documentary evidence of your authorization is also just good practice. How else is a recipient of a complaint to know the agent is properly authorized by the complainant? Best, Volker Am 08.04.2015 um 16:32 schrieb Kiran Malancharuvil:
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's.
To your second, we are not going to complete and attach a power of attorney to every request.
Thanks,
Kiran
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net> wrote:
Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients. As a registrar, I know this very feeling very well. But such is life... Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish. I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd: I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best, Kathy
: Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best, Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com>
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From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. ---
: Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Hi All, Just wanted to add my thoughts to this thread. Regarding attestation I support the language Val suggested at the beginning of this thread. Requiring a power-of-attorney or a half page authorization and attestation is unnecessary - especially if it neither has to be delivered to the Provider nor checked, verified or confirmed by the Provider. As for III.C.5, I’m not 100% sure where we landed but I believe that ending that sentence (the pretext provision) with “privacy” is not the way to go. I am however OK with using “human rights (e.g., freedom of expression)”. We don’t want to get into a situation where the mere request for a disclosure is always countered as “contravening” privacy and thus a basis to refuse all reveal/disclosure requests. Thanks. Alex On 4/8/15, 7:38 AM, "Volker Greimann" <vgreimann@key-systems.net> wrote:
Hi Kiran,
it can be a general PoA but a PoA should be provided.
Every lawyer making a legal request in Germany must, upon request, provide a copy of his PoA to the requestee. Providing documentary evidence of your authorization is also just good practice. How else is a recipient of a complaint to know the agent is properly authorized by the complainant?
Best,
Volker
Am 08.04.2015 um 16:32 schrieb Kiran Malancharuvil:
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's.
To your second, we are not going to complete and attach a power of attorney to every request.
Thanks,
Kiran
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net> wrote:
Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients. As a registrar, I know this very feeling very well. But such is life... Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish. I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd: I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best, Kathy
: Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best, Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com>
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From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. ---
: Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<image002.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
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So you are proposing to move back into the realm of unsubstantiated claims? If we cannot even rely on the proper authorization of the agent, what can we rely on? And where is the harm in documenting the authority of the agent? The only cases where I see an issue is where there is no proper authorization and those should be excluded in the first place. So providing a PoA should really be a basic requirement. I really do not understand the issues with it. As to Privacy vs human rights: Privacy is the service. If a complainant only makes claims in order to remove the privacy, i.e. uses them as pretext, the request should be denied and the complainant ashamed of himself. Human rights on the other hand would require a detailed legal analysis. Also, Harm resulting from a denial of privacy not necessarily impacts human rights. Best, Volker Am 10.04.2015 um 00:50 schrieb Alex_Deacon@mpaa.org:
Hi All,
Just wanted to add my thoughts to this thread.
Regarding attestation I support the language Val suggested at the beginning of this thread. Requiring a power-of-attorney or a half page authorization and attestation is unnecessary - especially if it neither has to be delivered to the Provider nor checked, verified or confirmed by the Provider.
As for III.C.5, I’m not 100% sure where we landed but I believe that ending that sentence (the pretext provision) with “privacy” is not the way to go. I am however OK with using “human rights (e.g., freedom of expression)”. We don’t want to get into a situation where the mere request for a disclosure is always countered as “contravening” privacy and thus a basis to refuse all reveal/disclosure requests.
Thanks.
Alex
On 4/8/15, 7:38 AM, "Volker Greimann" <vgreimann@key-systems.net> wrote:
Hi Kiran,
it can be a general PoA but a PoA should be provided.
Every lawyer making a legal request in Germany must, upon request, provide a copy of his PoA to the requestee. Providing documentary evidence of your authorization is also just good practice. How else is a recipient of a complaint to know the agent is properly authorized by the complainant?
Best,
Volker
Am 08.04.2015 um 16:32 schrieb Kiran Malancharuvil:
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's.
To your second, we are not going to complete and attach a power of attorney to every request.
Thanks,
Kiran
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net> wrote:
Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients. As a registrar, I know this very feeling very well. But such is life... Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish. I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd: I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best, Kathy
: Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best, Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com>
<image001.jpg>
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. ---
: Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<image002.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
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- Rechtsabteilung -
Key-Systems GmbH
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--------------------------------------------
Should you have any further questions, please do not hesitate to contact us.
Best regards,
Volker A. Greimann - legal department -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
Mit freundlichen Grüßen,
Volker A. Greimann - Rechtsabteilung -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net
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Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
--------------------------------------------
Should you have any further questions, please do not hesitate to contact us.
Best regards,
Volker A. Greimann - legal department -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Thanks Volker. The whole point of the attestation language is for the requester to attest that they have the proper authorization, so that the P/P Provider can then rely on that attestation. Nobody is arguing that a requester should be able to submit a request without doing so. Rather, the only question on the table is whether the requester also needs to provide documentation to the P/P Provider to “back up” that attestation – and if so, what form that documentation should take, and what steps the P/P Provider will need to take to validate it. Here’s what Michele said on our call on Tuesday on that question: “For us as a provider of any service having to go off and validate third party documents is going to cost me money, time, effort, legal fees. So I personally wouldn’t be interested in going down that route.” And then Volker here’s what you said: “Personally I would love to look at those contracts but not as a provider but rather as the curious cat that I am. As a provider I would not want to see those contracts and the specific details, I just would like to see a confirmation as part of the complaint that a certain standard has been followed and that would be of course also attributable to the complainant but I wouldn't look at the contract as a provider.” (Emphasis added). But then in your email below you seem to be arguing the opposite. So I guess I’m confused on where you stand on this. Do you want the requester to have to provide documentation in support of its attestation that the P/P Provider will then be obligated to legally validate? Or is it enough that the requester “confirm” (attest) as part of the complaint that a certain standard has been followed? -----Original Message----- From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Friday, April 10, 2015 4:32 AM To: Alex_Deacon@mpaa.org; Kiran.Malancharuvil@markmonitor.com Cc: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation So you are proposing to move back into the realm of unsubstantiated claims? If we cannot even rely on the proper authorization of the agent, what can we rely on? And where is the harm in documenting the authority of the agent? The only cases where I see an issue is where there is no proper authorization and those should be excluded in the first place. So providing a PoA should really be a basic requirement. I really do not understand the issues with it. As to Privacy vs human rights: Privacy is the service. If a complainant only makes claims in order to remove the privacy, i.e. uses them as pretext, the request should be denied and the complainant ashamed of himself. Human rights on the other hand would require a detailed legal analysis. Also, Harm resulting from a denial of privacy not necessarily impacts human rights. Best, Volker Am 10.04.2015 um 00:50 schrieb Alex_Deacon@mpaa.org<mailto:Alex_Deacon@mpaa.org>:
Hi All,
Just wanted to add my thoughts to this thread.
Regarding attestation I support the language Val suggested at the beginning of this thread. Requiring a power-of-attorney or a half page authorization and attestation is unnecessary - especially if it neither has to be delivered to the Provider nor checked, verified or confirmed by the Provider.
As for III.C.5, I’m not 100% sure where we landed but I believe that ending that sentence (the pretext provision) with “privacy” is not the way to go. I am however OK with using “human rights (e.g., freedom of expression)”. We don’t want to get into a situation where the mere request for a disclosure is always countered as “contravening” privacy and thus a basis to refuse all reveal/disclosure requests.
Thanks.
Alex
On 4/8/15, 7:38 AM, "Volker Greimann" <vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
it can be a general PoA but a PoA should be provided.
Every lawyer making a legal request in Germany must, upon request,
provide a copy of his PoA to the requestee. Providing documentary
evidence of your authorization is also just good practice. How else
is a recipient of a complaint to know the agent is properly
authorized by the complainant?
Best,
Volker
Am 08.04.2015 um 16:32 schrieb Kiran Malancharuvil:
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's.
To your second, we are not going to complete and attach a power of attorney to every request.
Thanks,
Kiran
Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients.
As a registrar, I know this very feeling very well. But such is life...
Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish.
I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com<mailto:Todd.Williams@turner.com%3cmailto:Todd.Williams@turner.com>>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc<mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org<mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Volker Greimann
Sent: Wednesday, April 08, 2015 9:53 AM
To:
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd:
I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc<mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org<mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Kathy Kleiman
Sent: Tuesday, April 07, 2015 3:24 PM
To: McGrady, Paul D.;
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Hi Paul, Hi Jim,
No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best,
Kathy
:
Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best,
Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601-9703
D: +1 (312) 558-5963
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html> | VCard<http://www.winston.com/vcards/996.vcf> |
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From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc<mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org<mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Kathy Kleiman
Sent: Tuesday, April 07, 2015 8:19 AM
To:
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Tx Val,
Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy
------------------------------------------------------------------
--------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question.
- Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider.
---
:
Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best,
Val
Valeriya
Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/
| Attorney at Law
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- (1) A good faith statement[, either] under penalty of perjury [or notarized or accompanied by sworn statement[1] (“Versicherung an Eides statt”),] from either the trademark holder or an authorized representative of the trademark holder, that —: a) provides a basis for reasonably believing that the use of the trademark in the domain name (i) allegedly infringes the trademark holder’s rights and (ii) is not defensible; b) states that Requestor will use Customer’s contact details only (i) to determine whether further action is warranted to resolve the issue; (ii) to attempt to contact Customer regarding the issue; and/or (iii) in a legal proceeding concerning the issue. c) Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request /including to bind the rights holder to the limitations on the data once revealed[/2]. / d) //Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, the signatory shall agree to provide a copy of its agency agreement (or equivalent thereof) to the Provider if requested. ---------------------------------------------------------- /// Best, Kathy On 4/10/2015 9:33 AM, Williams, Todd wrote:
Thanks Volker.
The whole point of the attestation language is for the requester to attest that they have the prop0er authorization, so that the P/P Provider can then rely on that attestation. Nobody is arguing that a requester should be able to submit a request without doing so.
Rather, the only question on the table is whether the requester */also/* needs to provide documentation to the P/P Provider to “back up” that attestation – and if so, what form that documentation should take, and what steps the P/P Provider will need to take to validate it. Here’s what Michele said on our call on Tuesday on that question:
“For us as a provider of any service having to go off and validate third party documents is going to cost me money, time, effort, legal fees. So I personally wouldn’t be interested in going down that route.”
And then Volker here’s what you said:
“Personally I would love to look at those contracts but not as a provider but rather as the curious cat that I am. As a provider I would not want to see those contracts and the specific details, I just would like to see */a confirmation as part of the complaint/* that a certain standard has been followed and that would be of course also attributable to the complainant */but I wouldn't look at the contract as a provider/*.”
(Emphasis added).
But then in your email below you seem to be arguing the opposite. So I guess I’m confused on where you stand on this. Do you want the requester to have to provide documentation in support of its attestation that the P/P Provider will then be obligated to legally validate? Or is it enough that the requester “confirm” (attest) as part of the complaint that a certain standard has been followed?
-----Original Message----- From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Friday, April 10, 2015 4:32 AM To: Alex_Deacon@mpaa.org; Kiran.Malancharuvil@markmonitor.com Cc: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
So you are proposing to move back into the realm of unsubstantiated claims? If we cannot even rely on the proper authorization of the agent, what can we rely on?
And where is the harm in documenting the authority of the agent? The only cases where I see an issue is where there is no proper authorization and those should be excluded in the first place. So providing a PoA should really be a basic requirement.
I really do not understand the issues with it.
As to Privacy vs human rights: Privacy is the service. If a complainant only makes claims in order to remove the privacy, i.e. uses them as pretext, the request should be denied and the complainant ashamed of himself. Human rights on the other hand would require a detailed legal analysis. Also, Harm resulting from a denial of privacy not necessarily impacts human rights.
Best,
Volker
Am 10.04.2015 um 00:50 schrieb Alex_Deacon@mpaa.org <mailto:Alex_Deacon@mpaa.org>:
Hi All,
Just wanted to add my thoughts to this thread.
Regarding attestation I support the language Val suggested at the beginning of this thread. Requiring a power-of-attorney or a half page authorization and attestation is unnecessary - especially if it neither has to be delivered to the Provider nor checked, verified or confirmed by the Provider.
As for III.C.5, I’m not 100% sure where we landed but I believe that ending that sentence (the pretext provision) with “privacy” is not the way to go. I am however OK with using “human rights (e.g., freedom of expression)”. We don’t want to get into a situation where the mere request for a disclosure is always countered as “contravening” privacy and thus a basis to refuse all reveal/disclosure requests.
Thanks.
Alex
On 4/8/15, 7:38 AM, "Volker Greimann" <vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
it can be a general PoA but a PoA should be provided.
Every lawyer making a legal request in Germany must, upon request,
provide a copy of his PoA to the requestee. Providing documentary
evidence of your authorization is also just good practice. How else
is a recipient of a complaint to know the agent is properly
authorized by the complainant?
Best,
Volker
Am 08.04.2015 um 16:32 schrieb Kiran Malancharuvil:
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's.
To your second, we are not going to complete and attach a power of attorney to every request.
Thanks,
Kiran
Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients.
As a registrar, I know this very feeling very well. But such is life...
Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish.
I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com <mailto:Todd.Williams@turner.com%3cmailto:Todd.Williams@turner.com>>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc <mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org <mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Volker Greimann
Sent: Wednesday, April 08, 2015 9:53 AM
To:
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd:
I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc <mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org <mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Kathy Kleiman
Sent: Tuesday, April 07, 2015 3:24 PM
To: McGrady, Paul D.;
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Hi Paul, Hi Jim,
No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best,
Kathy
:
Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best,
Paul
Paul D. McGrady Jr.
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From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc <mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org <mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Kathy Kleiman
Sent: Tuesday, April 07, 2015 8:19 AM
To:
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Tx Val,
Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy
------------------------------------------------------------------
--------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question.
- Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider.
---
:
Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best,
Val
Valeriya
Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/
> | Attorney at Law
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Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote:
Hi Todd and All,
It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
(1) A good faith statement[, either] under penalty of perjury [or notarized or accompanied by sworn statement[1] (“Versicherung an Eides statt”),] from either the trademark holder or an authorized representative of the trademark holder, that —: a) provides a basis for reasonably believing that the use of the trademark in the domain name (i) allegedly infringes the trademark holder’s rights and (ii) is not defensible; b) states that Requestor will use Customer’s contact details only (i) to determine whether further action is warranted to resolve the issue; (ii) to attempt to contact Customer regarding the issue; and/or (iii) in a legal proceeding concerning the issue.
c) Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request /including to bind the rights holder to the limitations on the data once revealed[/2].
/ d) //Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, the signatory shall agree to provide a copy of its agency agreement (or equivalent thereof) to the Provider if requested.
---------------------------------------------------------- / Best, Kathy
On 4/10/2015 9:33 AM, Williams, Todd wrote:
Thanks Volker.
The whole point of the attestation language is for the requester to attest that they have the prop0er authorization, so that the P/P Provider can then rely on that attestation. Nobody is arguing that a requester should be able to submit a request without doing so.
Rather, the only question on the table is whether the requester */also/* needs to provide documentation to the P/P Provider to “back up” that attestation – and if so, what form that documentation should take, and what steps the P/P Provider will need to take to validate it. Here’s what Michele said on our call on Tuesday on that question:
“For us as a provider of any service having to go off and validate third party documents is going to cost me money, time, effort, legal fees. So I personally wouldn’t be interested in going down that route.”
And then Volker here’s what you said:
“Personally I would love to look at those contracts but not as a provider but rather as the curious cat that I am. As a provider I would not want to see those contracts and the specific details, I just would like to see */a confirmation as part of the complaint/* that a certain standard has been followed and that would be of course also attributable to the complainant */but I wouldn't look at the contract as a provider/*.”
(Emphasis added).
But then in your email below you seem to be arguing the opposite. So I guess I’m confused on where you stand on this. Do you want the requester to have to provide documentation in support of its attestation that the P/P Provider will then be obligated to legally validate? Or is it enough that the requester “confirm” (attest) as part of the complaint that a certain standard has been followed?
-----Original Message----- From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Friday, April 10, 2015 4:32 AM To: Alex_Deacon@mpaa.org; Kiran.Malancharuvil@markmonitor.com Cc: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
So you are proposing to move back into the realm of unsubstantiated claims? If we cannot even rely on the proper authorization of the agent, what can we rely on?
And where is the harm in documenting the authority of the agent? The only cases where I see an issue is where there is no proper authorization and those should be excluded in the first place. So providing a PoA should really be a basic requirement.
I really do not understand the issues with it.
As to Privacy vs human rights: Privacy is the service. If a complainant only makes claims in order to remove the privacy, i.e. uses them as pretext, the request should be denied and the complainant ashamed of himself. Human rights on the other hand would require a detailed legal analysis. Also, Harm resulting from a denial of privacy not necessarily impacts human rights.
Best,
Volker
Am 10.04.2015 um 00:50 schrieb Alex_Deacon@mpaa.org <mailto:Alex_Deacon@mpaa.org>:
Hi All,
Just wanted to add my thoughts to this thread.
Regarding attestation I support the language Val suggested at the beginning of this thread. Requiring a power-of-attorney or a half page authorization and attestation is unnecessary - especially if it neither has to be delivered to the Provider nor checked, verified or confirmed by the Provider.
As for III.C.5, I’m not 100% sure where we landed but I believe that ending that sentence (the pretext provision) with “privacy” is not the way to go. I am however OK with using “human rights (e.g., freedom of expression)”. We don’t want to get into a situation where the mere request for a disclosure is always countered as “contravening” privacy and thus a basis to refuse all reveal/disclosure requests.
Thanks.
Alex
On 4/8/15, 7:38 AM, "Volker Greimann" <vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
it can be a general PoA but a PoA should be provided.
Every lawyer making a legal request in Germany must, upon request,
provide a copy of his PoA to the requestee. Providing documentary
evidence of your authorization is also just good practice. How else
is a recipient of a complaint to know the agent is properly
authorized by the complainant?
Best,
Volker
Am 08.04.2015 um 16:32 schrieb Kiran Malancharuvil:
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's.
To your second, we are not going to complete and attach a power of attorney to every request.
Thanks,
Kiran
Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
> I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients.
As a registrar, I know this very feeling very well. But such is life...
> Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish.
I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
> K
>
> Kiran Malancharuvil
> Internet Policy Counselor
> MarkMonitor
> 415-419-9138 (m)
>
> Sent from my mobile, please excuse any typos.
>
> On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com <mailto:Todd.Williams@turner.com%3cmailto:Todd.Williams@turner.com>>> wrote:
>
> Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
>
> But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
>
> From:
> gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc <mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
> es@icann.org <mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
> Behalf Of Volker Greimann
> Sent: Wednesday, April 08, 2015 9:53 AM
> To:
> gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
> attestation
>
> Hi Todd,
>
> it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
>
> ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
>
> In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
>
> Volker
>
> Am 08.04.2015 um 15:29 schrieb Williams, Todd:
> I’m sorry, I’m getting quite confused on this part.
>
> Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
>
> But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
>
> To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
>
> Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
>
> From:
> gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc <mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
> es@icann.org <mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
> Behalf Of Kathy Kleiman
> Sent: Tuesday, April 07, 2015 3:24 PM
> To: McGrady, Paul D.;
> gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
> attestation
>
> Hi Paul, Hi Jim,
> No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
>
> What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
>
> The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
>
> Best,
> Kathy
>
>
> :
> Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
>
> Best,
> Paul
>
>
> Paul D. McGrady Jr.
>
> Partner
>
> Chair, Trademark, Domain Names and Brand Enforcement Practice
>
> Winston & Strawn LLP
> 35 W. Wacker Drive
> Chicago, IL 60601-9703
>
> D: +1 (312) 558-5963
>
> F: +1 (312) 558-5700
>
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> <image001.jpg>
>
>
> From:
> gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc <mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
> es@icann.org <mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
> Behalf Of Kathy Kleiman
> Sent: Tuesday, April 07, 2015 8:19 AM
> To:
> gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
> attestation
>
> Tx Val,
> Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
>
> James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
>
> Here's the language. Best, Kathy
> ------------------------------------------------------------------
> --------------------------------------------------
>
> In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
>
> Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
>
> Detailed Policy Language for Principle:
>
> The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
>
> The letter would include the following provisions:
>
> - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question.
> - Specifying the nature of the delegation and the subject to whom the delegation is being given.
>
> - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
>
> - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
>
> - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
>
> - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
>
> - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider.
> ---
>
>
>
> :
> Dear all:
>
> Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
>
> We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
>
> These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
>
> We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
>
> Best,
> Val
>
>
>
> Valeriya
> Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/
> > | Attorney at Law
>
>
> 202-973-2611 phone
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> <image002.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell,
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-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:imagec0c9e5.JPG@f6f1dce8.4fb5546e]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
I'm okay with this. If there is a reasonable suspicion it can be requested, but should not be required of every submission. K Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Apr 10, 2015, at 1:59 PM, Sherman, Valeriya <vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>> wrote: Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. <imagec0c9e5.JPG><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Hi Val, I have a small point to make on "Requestor is unauthorized to act on behalf of the rights holder" how are we as the provider supposed to know that XYZ acts on behalf of Apple inc ? In my case, I would simply go on the stance, request the confirmation, then once received continue the process. Also then note in our records XYZ acts on behalf if Apple, and should we not get another request from the requester for another year - get a "refreshing" confirmation. Chris ----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: "Graeme Bunton" <gbunton@tucows.com>, gnso-ppsai-pdp-wg@icann.org Sent: Friday, 10 April, 2015 9:57:18 PM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com vsherman@sgrlaw.com 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
That is the point of the attestation language we previously discussed, whereby the Requestor--under the penalty of perjury--attests for you that he/she has the authority to make the request. And if you reasonably believe that, despite the repercussions from making a false attestation under the penalty of perjury, they do not have the authorization they claim, you can ask them to show some proof of it. Valeriya Sherman | Attorney at Law 202-973-2611 Phone 202-263-4326 Fax www.sgrlaw.com vsherman@sgrlaw.com 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. Smith, Gambrell & Russell, LLP -----Original Message----- From: Chris Pelling [mailto:chris@netearth.net] Sent: Friday, April 10, 2015 6:25 PM To: Sherman, Valeriya Cc: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Hi Val, I have a small point to make on "Requestor is unauthorized to act on behalf of the rights holder" how are we as the provider supposed to know that XYZ acts on behalf of Apple inc ? In my case, I would simply go on the stance, request the confirmation, then once received continue the process. Also then note in our records XYZ acts on behalf if Apple, and should we not get another request from the requester for another year - get a "refreshing" confirmation. Chris ----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: "Graeme Bunton" <gbunton@tucows.com>, gnso-ppsai-pdp-wg@icann.org Sent: Friday, 10 April, 2015 9:57:18 PM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com vsherman@sgrlaw.com 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
Hi Val, I would request it as a "standard practice" when we meet a new requester, then add it to our files as a confirmed requester. In our case as we would be directly responsible, better to be safe than sorry, if that means an extra piece of paper and/or email then so be it. I will always "err on the side of caution". Obviously we do not get many of these requests, so, building up our files will take time when we get contacted, however, other far larger registrars may already have those connections in place. Regards, Chris ----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: chris@netearth.net Cc: gnso-ppsai-pdp-wg@icann.org Sent: Saturday, 11 April, 2015 12:02:25 AM Subject: RE: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words That is the point of the attestation language we previously discussed, whereby the Requestor--under the penalty of perjury--attests for you that he/she has the authority to make the request. And if you reasonably believe that, despite the repercussions from making a false attestation under the penalty of perjury, they do not have the authorization they claim, you can ask them to show some proof of it. Valeriya Sherman | Attorney at Law 202-973-2611 Phone 202-263-4326 Fax www.sgrlaw.com vsherman@sgrlaw.com 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. Smith, Gambrell & Russell, LLP -----Original Message----- From: Chris Pelling [mailto:chris@netearth.net] Sent: Friday, April 10, 2015 6:25 PM To: Sherman, Valeriya Cc: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Hi Val, I have a small point to make on "Requestor is unauthorized to act on behalf of the rights holder" how are we as the provider supposed to know that XYZ acts on behalf of Apple inc ? In my case, I would simply go on the stance, request the confirmation, then once received continue the process. Also then note in our records XYZ acts on behalf if Apple, and should we not get another request from the requester for another year - get a "refreshing" confirmation. Chris ----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: "Graeme Bunton" <gbunton@tucows.com>, gnso-ppsai-pdp-wg@icann.org Sent: Friday, 10 April, 2015 9:57:18 PM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com vsherman@sgrlaw.com 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
What are you attempting to validate? The honesty of the requestor or the ability of the requestor to act specifically on behalf of the client they are representing for that specific request? Where does this end? If we submit a request that establishes who we are acting on behalf of, you don't believe us. If we submit another document asserting that again, will that be the end? Or will we be suspect in regard to that document? This whole conversation is reaching a point of ridiculous. Kiran Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos.
On Apr 10, 2015, at 4:41 PM, Chris Pelling <chris@netearth.net> wrote:
Hi Val,
I would request it as a "standard practice" when we meet a new requester, then add it to our files as a confirmed requester. In our case as we would be directly responsible, better to be safe than sorry, if that means an extra piece of paper and/or email then so be it. I will always "err on the side of caution".
Obviously we do not get many of these requests, so, building up our files will take time when we get contacted, however, other far larger registrars may already have those connections in place.
Regards, Chris
----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: chris@netearth.net Cc: gnso-ppsai-pdp-wg@icann.org Sent: Saturday, 11 April, 2015 12:02:25 AM Subject: RE: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
That is the point of the attestation language we previously discussed, whereby the Requestor--under the penalty of perjury--attests for you that he/she has the authority to make the request. And if you reasonably believe that, despite the repercussions from making a false attestation under the penalty of perjury, they do not have the authorization they claim, you can ask them to show some proof of it.
Valeriya Sherman | Attorney at Law
202-973-2611 Phone 202-263-4326 Fax www.sgrlaw.com vsherman@sgrlaw.com
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
Smith, Gambrell & Russell, LLP
-----Original Message----- From: Chris Pelling [mailto:chris@netearth.net] Sent: Friday, April 10, 2015 6:25 PM To: Sherman, Valeriya Cc: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Hi Val,
I have a small point to make on "Requestor is unauthorized to act on behalf of the rights holder" how are we as the provider supposed to know that XYZ acts on behalf of Apple inc ?
In my case, I would simply go on the stance, request the confirmation, then once received continue the process. Also then note in our records XYZ acts on behalf if Apple, and should we not get another request from the requester for another year - get a "refreshing" confirmation.
Chris
----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: "Graeme Bunton" <gbunton@tucows.com>, gnso-ppsai-pdp-wg@icann.org Sent: Friday, 10 April, 2015 9:57:18 PM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it:
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Happy to hear others’ thoughts on this.
Val
Valeriya Sherman | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com vsherman@sgrlaw.com
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
Smith, Gambrell & Russell, LLP
From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thanks Kathy,
Originally, I had concerns about this, similar to what Michele was expressing on the call.
In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder.
The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient.
Graeme
On 2015-04-10 3:14 PM, Kathy Kleiman wrote:
Hi Todd and All,
It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Actually in my opinion I think this is a really important conversation, but I can really only turn to my experience in tangential areas to illustrate why. I'm not a registrar but coming from the cloud background, I can say that many of us occasionally see more 'bad' hosted content takedown requests than actionable ones. I've seen DMCA notices used to try to shut down competitors on many occasions. Though it's not the norm, it is important to understand the common outlier cases. I see them almost daily where they just don't make sense - either pointing to broken links or asking for broad takedowns on whole sites for unclear or poorly demonstrated reasons. DMCA notices require a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed. But that doesn't stop me from getting dumb and potentially business-disrupting DMCA notices daily. I investigate and address every one - even the jaw droppingly outlandish ones - but try to take care to do so in a way that limits the possibility of any innocent party from having their business disrupted. I'm well aware that this isn't the DMCA, but I draw the parallel for a reason. Some individuals and organizations that utilize privacy and proxy services require confidentiality, and in the important fringe cases they even need them for life and death reasons. I acknowledge that there are many legitimate needs for being able to get at proxied contact info, but I can promise based on my experience with the DMCA that there's going to be a plethora of illegitimate claims. Especially in those fringe cases, that's troubling. The worst case scenario in a poorly handled DMCA complaint is that an innocent business has their content come down as they sort things out. Once the content is put back online, that problem is somewhat mitigated. In contrast, once contact information is provided to someone who shouldn't have it, that horse is out of the barn and you can never get it back in. I've been buried with other projects and there's a chance I'm missing things, as I admit to only skimming the last few weeks of work. If so I'm eager for somebody to offer to bring me back into the loop. I'd love to be a part of this particular conversation from a more informed standpoint. Based on what I understand from today, I don't think it too much to ask to try and get some verification other than a 'statement under penalty of perjury' -which works ineffectively under the DMCA to ensure notices will pass even basic scrutiny - before we authorize companies to turn over private contact information from one who for one reason or another (and there are countless legitimate ones) felt they required confidentiality. Christian Dawson President; ServInt w: 703 288 3530 http://servint.net PGP: E955B71C Fingerprint: 3BD3 A427 9F5E 0D86 E79D 4EB5 6AF5 3518 E955 B71C
On Apr 10, 2015, at 7:46 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
What are you attempting to validate? The honesty of the requestor or the ability of the requestor to act specifically on behalf of the client they are representing for that specific request?
Where does this end? If we submit a request that establishes who we are acting on behalf of, you don't believe us. If we submit another document asserting that again, will that be the end? Or will we be suspect in regard to that document?
This whole conversation is reaching a point of ridiculous.
Kiran
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 10, 2015, at 4:41 PM, Chris Pelling <chris@netearth.net> wrote:
Hi Val,
I would request it as a "standard practice" when we meet a new requester, then add it to our files as a confirmed requester. In our case as we would be directly responsible, better to be safe than sorry, if that means an extra piece of paper and/or email then so be it. I will always "err on the side of caution".
Obviously we do not get many of these requests, so, building up our files will take time when we get contacted, however, other far larger registrars may already have those connections in place.
Regards, Chris
----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: chris@netearth.net Cc: gnso-ppsai-pdp-wg@icann.org Sent: Saturday, 11 April, 2015 12:02:25 AM Subject: RE: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
That is the point of the attestation language we previously discussed, whereby the Requestor--under the penalty of perjury--attests for you that he/she has the authority to make the request. And if you reasonably believe that, despite the repercussions from making a false attestation under the penalty of perjury, they do not have the authorization they claim, you can ask them to show some proof of it.
Valeriya Sherman | Attorney at Law
202-973-2611 Phone 202-263-4326 Fax www.sgrlaw.com vsherman@sgrlaw.com
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
Smith, Gambrell & Russell, LLP
-----Original Message----- From: Chris Pelling [mailto:chris@netearth.net] Sent: Friday, April 10, 2015 6:25 PM To: Sherman, Valeriya Cc: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Hi Val,
I have a small point to make on "Requestor is unauthorized to act on behalf of the rights holder" how are we as the provider supposed to know that XYZ acts on behalf of Apple inc ?
In my case, I would simply go on the stance, request the confirmation, then once received continue the process. Also then note in our records XYZ acts on behalf if Apple, and should we not get another request from the requester for another year - get a "refreshing" confirmation.
Chris
----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: "Graeme Bunton" <gbunton@tucows.com>, gnso-ppsai-pdp-wg@icann.org Sent: Friday, 10 April, 2015 9:57:18 PM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it:
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Happy to hear others’ thoughts on this.
Val
Valeriya Sherman | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com vsherman@sgrlaw.com
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
Smith, Gambrell & Russell, LLP
From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thanks Kathy,
Originally, I had concerns about this, similar to what Michele was expressing on the call.
In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder.
The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient.
Graeme
On 2015-04-10 3:14 PM, Kathy Kleiman wrote:
Hi Todd and All,
It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
The attestation issue isn't going to solve the "jaw droppingly outlandish" requests issue. People can (and do) make stupid requests acting under the full authority of the brand owner. Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Apr 10, 2015, at 5:38 PM, Christian Dawson <dawson@servint.com<mailto:dawson@servint.com>> wrote: Actually in my opinion I think this is a really important conversation, but I can really only turn to my experience in tangential areas to illustrate why. I'm not a registrar but coming from the cloud background, I can say that many of us occasionally see more 'bad' hosted content takedown requests than actionable ones. I've seen DMCA notices used to try to shut down competitors on many occasions. Though it's not the norm, it is important to understand the common outlier cases. I see them almost daily where they just don't make sense - either pointing to broken links or asking for broad takedowns on whole sites for unclear or poorly demonstrated reasons. DMCA notices require a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed. But that doesn't stop me from getting dumb and potentially business-disrupting DMCA notices daily. I investigate and address every one - even the jaw droppingly outlandish ones - but try to take care to do so in a way that limits the possibility of any innocent party from having their business disrupted. I'm well aware that this isn't the DMCA, but I draw the parallel for a reason. Some individuals and organizations that utilize privacy and proxy services require confidentiality, and in the important fringe cases they even need them for life and death reasons. I acknowledge that there are many legitimate needs for being able to get at proxied contact info, but I can promise based on my experience with the DMCA that there's going to be a plethora of illegitimate claims. Especially in those fringe cases, that's troubling. The worst case scenario in a poorly handled DMCA complaint is that an innocent business has their content come down as they sort things out. Once the content is put back online, that problem is somewhat mitigated. In contrast, once contact information is provided to someone who shouldn't have it, that horse is out of the barn and you can never get it back in. I've been buried with other projects and there's a chance I'm missing things, as I admit to only skimming the last few weeks of work. If so I'm eager for somebody to offer to bring me back into the loop. I'd love to be a part of this particular conversation from a more informed standpoint. Based on what I understand from today, I don't think it too much to ask to try and get some verification other than a 'statement under penalty of perjury' -which works ineffectively under the DMCA to ensure notices will pass even basic scrutiny - before we authorize companies to turn over private contact information from one who for one reason or another (and there are countless legitimate ones) felt they required confidentiality. Christian Dawson President; ServInt w: 703 288 3530<tel:703%20288%203530> http://servint.net<http://i2coalition.com/> PGP: E955B71C Fingerprint: 3BD3 A427 9F5E 0D86 E79D 4EB5 6AF5 3518 E955 B71C On Apr 10, 2015, at 7:46 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: What are you attempting to validate? The honesty of the requestor or the ability of the requestor to act specifically on behalf of the client they are representing for that specific request? Where does this end? If we submit a request that establishes who we are acting on behalf of, you don't believe us. If we submit another document asserting that again, will that be the end? Or will we be suspect in regard to that document? This whole conversation is reaching a point of ridiculous. Kiran Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Apr 10, 2015, at 4:41 PM, Chris Pelling <chris@netearth.net<mailto:chris@netearth.net>> wrote: Hi Val, I would request it as a "standard practice" when we meet a new requester, then add it to our files as a confirmed requester. In our case as we would be directly responsible, better to be safe than sorry, if that means an extra piece of paper and/or email then so be it. I will always "err on the side of caution". Obviously we do not get many of these requests, so, building up our files will take time when we get contacted, however, other far larger registrars may already have those connections in place. Regards, Chris ----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>> To: chris@netearth.net<mailto:chris@netearth.net> Cc: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Sent: Saturday, 11 April, 2015 12:02:25 AM Subject: RE: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words That is the point of the attestation language we previously discussed, whereby the Requestor--under the penalty of perjury--attests for you that he/she has the authority to make the request. And if you reasonably believe that, despite the repercussions from making a false attestation under the penalty of perjury, they do not have the authorization they claim, you can ask them to show some proof of it. Valeriya Sherman | Attorney at Law 202-973-2611 Phone 202-263-4326 Fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. Smith, Gambrell & Russell, LLP -----Original Message----- From: Chris Pelling [mailto:chris@netearth.net] Sent: Friday, April 10, 2015 6:25 PM To: Sherman, Valeriya Cc: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Hi Val, I have a small point to make on "Requestor is unauthorized to act on behalf of the rights holder" how are we as the provider supposed to know that XYZ acts on behalf of Apple inc ? In my case, I would simply go on the stance, request the confirmation, then once received continue the process. Also then note in our records XYZ acts on behalf if Apple, and should we not get another request from the requester for another year - get a "refreshing" confirmation. Chris ----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>> To: "Graeme Bunton" <gbunton@tucows.com<mailto:gbunton@tucows.com>>, gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Sent: Friday, 10 April, 2015 9:57:18 PM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Hi Kiran, The ability of the requester to act. Let me give you a real world example, this happened in June 2011 and was a request with regards IP etc. We received a request from "Kilpatrick Townsend & Stockton LLP" to take down a site, based upon a DMCA / notice of infringement / malware spreading on the apple brand. I honestly did not know Kilpatrick Townsend & Stockton LLP from any other lawyer, and subsequently went into a dialogue with them - within 24 hours the domain was shut down. I requested 2 things, first and foremost full indemnity from Apple with regards this domain name, AND, confirmation that Kilpatrick Townsend & Stockton LLP act on behalf of Apple. One letter later, signed by Ron Dumont, Apple Product Security and Policy. Ron was also kind enough to stipulate WHO could sign on their behalf in the document. So, I will always go down this route if I have never heard of, or, cannot easily find from the companies website (the IP owner) on their copyright page, who acts on their behalf. Kind regards, Chris ----- Original Message ----- From: "Kiran Malancharuvil" <Kiran.Malancharuvil@markmonitor.com> To: "Chris Pelling" <chris@netearth.net> Cc: "Valeriya Sherman" <vsherman@sgrlaw.com>, gnso-ppsai-pdp-wg@icann.org Sent: Saturday, 11 April, 2015 12:46:02 AM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words What are you attempting to validate? The honesty of the requestor or the ability of the requestor to act specifically on behalf of the client they are representing for that specific request? Where does this end? If we submit a request that establishes who we are acting on behalf of, you don't believe us. If we submit another document asserting that again, will that be the end? Or will we be suspect in regard to that document? This whole conversation is reaching a point of ridiculous. Kiran Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos.
On Apr 10, 2015, at 4:41 PM, Chris Pelling <chris@netearth.net> wrote:
Hi Val,
I would request it as a "standard practice" when we meet a new requester, then add it to our files as a confirmed requester. In our case as we would be directly responsible, better to be safe than sorry, if that means an extra piece of paper and/or email then so be it. I will always "err on the side of caution".
Obviously we do not get many of these requests, so, building up our files will take time when we get contacted, however, other far larger registrars may already have those connections in place.
Regards, Chris
----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: chris@netearth.net Cc: gnso-ppsai-pdp-wg@icann.org Sent: Saturday, 11 April, 2015 12:02:25 AM Subject: RE: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
That is the point of the attestation language we previously discussed, whereby the Requestor--under the penalty of perjury--attests for you that he/she has the authority to make the request. And if you reasonably believe that, despite the repercussions from making a false attestation under the penalty of perjury, they do not have the authorization they claim, you can ask them to show some proof of it.
Valeriya Sherman | Attorney at Law
202-973-2611 Phone 202-263-4326 Fax www.sgrlaw.com vsherman@sgrlaw.com
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
Smith, Gambrell & Russell, LLP
-----Original Message----- From: Chris Pelling [mailto:chris@netearth.net] Sent: Friday, April 10, 2015 6:25 PM To: Sherman, Valeriya Cc: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Hi Val,
I have a small point to make on "Requestor is unauthorized to act on behalf of the rights holder" how are we as the provider supposed to know that XYZ acts on behalf of Apple inc ?
In my case, I would simply go on the stance, request the confirmation, then once received continue the process. Also then note in our records XYZ acts on behalf if Apple, and should we not get another request from the requester for another year - get a "refreshing" confirmation.
Chris
----- Original Message ----- From: "Valeriya Sherman" <vsherman@sgrlaw.com> To: "Graeme Bunton" <gbunton@tucows.com>, gnso-ppsai-pdp-wg@icann.org Sent: Friday, 10 April, 2015 9:57:18 PM Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it:
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Happy to hear others’ thoughts on this.
Val
Valeriya Sherman | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com vsherman@sgrlaw.com
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
Smith, Gambrell & Russell, LLP
From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thanks Kathy,
Originally, I had concerns about this, similar to what Michele was expressing on the call.
In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder.
The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient.
Graeme
On 2015-04-10 3:14 PM, Kathy Kleiman wrote:
Hi Todd and All,
It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Hi Val and All, Tx you for the the emails of this weekend - and a better insight into processes today. Building upon the discussion of Friday and the weekend, it seems a good idea to incorporate and reflect the current practice of many Providers to validate new/unknown requestors, so I would like to recommend adding a last change to the language to ensure this current practice is included (in italics and green below). : d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder /or seeks to verify a new or unknown requestor,/ the Provider may request, and the Requestor shall provide, sufficient proof of agency. Best, Kathy Val wrote: :
Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it:
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Happy to hear others’ thoughts on this.
Val
Valeriya Sherman <http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> |Attorney at Law
202-973-2611 /phone/ 202-263-4326 /fax/ /www.sgrlaw.com <http://www.sgrlaw.com> vsherman@sgrlaw.com <mailto:vsherman@sgrlaw.com>/
//
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
/Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia./
<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Graeme Bunton *Sent:* Friday, April 10, 2015 4:20 PM *To:* gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thanks Kathy,
Originally, I had concerns about this, similar to what Michele was expressing on the call.
In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder.
The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient.
Graeme
On 2015-04-10 3:14 PM, Kathy Kleiman wrote:
Hi Todd and All,
It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
------------------------------------------------------------------------ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Hi Kathy, I am not sure I am found of the direction we are now taking. I trust providers do need to be able to verify that they are not acting carelessly on the request of third parties’ mere assertion. But I also don’t think providers should have any obligation to build a database of “known” or “approved” so-called requestors. AFAIC Val’s latest proposal was acceptable. All the best, Luc On 13 Apr 2015, at 13:31, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote: Hi Val and All, Tx you for the the emails of this weekend - and a better insight into processes today. Building upon the discussion of Friday and the weekend, it seems a good idea to incorporate and reflect the current practice of many Providers to validate new/unknown requestors, so I would like to recommend adding a last change to the language to ensure this current practice is included (in italics and green below). : d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder or seeks to verify a new or unknown requestor, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Best, Kathy Val wrote: : Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com/> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. <Mail Attachment.jpeg><http://www.sgrlaw.com/> Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg ________________________________ -------------------------------------------------------- This e-mail and any attached files are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this e-mail by mistake, please notify the sender immediately and delete it from your system. You must not copy the message or disclose its contents to anyone. Think of the environment: don't print this e-mail unless you really need to. --------------------------------------------------------
Hi Luc, I was hoping to ensure that the practices we heard about over the weekend - the investigation of a third party requester as a matter of course or "best practice" -- are included... hence the slight expansion of wording. Best, Kathy :
Hi Kathy,
I am not sure I am found of the direction we are now taking. I trust providers do need to be able to verify that they are not acting carelessly on the request of third parties’ mere assertion. But I also don’t think providers should have any obligation to build a database of “known” or “approved” so-called requestors.
AFAIC Val’s latest proposal was acceptable.
All the best,
Luc
On 13 Apr 2015, at 13:31, Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote:
Hi Val and All, Tx you for the the emails of this weekend - and a better insight into processes today. Building upon the discussion of Friday and the weekend, it seems a good idea to incorporate and reflect the current practice of many Providers to validate new/unknown requestors, so I would like to recommend adding a last change to the language to ensure this current practice is included (in italics and green below). :
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder or seeks to verify a new or unknown requestor, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Best, Kathy
Val wrote:
: Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it:
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Happy to hear others’ thoughts on this.
Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com/> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<Mail Attachment.jpeg><http://www.sgrlaw.com/> Smith, Gambrell & Russell, LLP
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thanks Kathy,
Originally, I had concerns about this, similar to what Michele was expressing on the call.
In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder.
The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient.
Graeme
On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
________________________________
--------------------------------------------------------
This e-mail and any attached files are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this e-mail by mistake, please notify the sender immediately and delete it from your system. You must not copy the message or disclose its contents to anyone.
Think of the environment: don't print this e-mail unless you really need to.
--------------------------------------------------------
This would shift the burden of proof to providers. What is a "reasonable basis" for an assumption can probably argued by US lawyers for days. I would very much prefer an uncomplicated, light-weight process where the complainant simply furnishes evidence of its authority to speak on behalf of the actual complainant. This need not be their entire agreement, but it should at least be a formal Power of Attorney limited to representeation for certain issues. That way, providers have something substantial in hand to link the agents actions to the complainant. Best, Volker Am 10.04.2015 um 22:57 schrieb Sherman, Valeriya:
Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it:
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Happy to hear others’ thoughts on this.
Val
Valeriya Sherman <http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> |Attorney at Law
202-973-2611 /phone/ 202-263-4326 /fax/ /www.sgrlaw.com <http://www.sgrlaw.com> vsherman@sgrlaw.com <mailto:vsherman@sgrlaw.com>/
//
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
/Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia./
<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Graeme Bunton *Sent:* Friday, April 10, 2015 4:20 PM *To:* gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thanks Kathy,
Originally, I had concerns about this, similar to what Michele was expressing on the call.
In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder.
The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient.
Graeme
On 2015-04-10 3:14 PM, Kathy Kleiman wrote:
Hi Todd and All,
It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
------------------------------------------------------------------------ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Uncomplicated and light weight for whom? Looking forward to discussing in a few minutes. Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Apr 14, 2015, at 6:55 AM, Volker Greimann <vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>> wrote: This would shift the burden of proof to providers. What is a "reasonable basis" for an assumption can probably argued by US lawyers for days. I would very much prefer an uncomplicated, light-weight process where the complainant simply furnishes evidence of its authority to speak on behalf of the actual complainant. This need not be their entire agreement, but it should at least be a formal Power of Attorney limited to representeation for certain issues. That way, providers have something substantial in hand to link the agents actions to the complainant. Best, Volker Am 10.04.2015 um 22:57 schrieb Sherman, Valeriya: Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it: d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency. Happy to hear others’ thoughts on this. Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. <mime-attachment.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words Thanks Kathy, Originally, I had concerns about this, similar to what Michele was expressing on the call. In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder. The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient. Graeme On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Every agent needs a power of attorney to appear for its client in public anyway, most have public and internal ones anyway. So where is the issue with providing that? Am 14.04.2015 um 16:03 schrieb Kiran Malancharuvil:
Uncomplicated and light weight for whom? Looking forward to discussing in a few minutes.
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 14, 2015, at 6:55 AM, Volker Greimann <vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>> wrote:
This would shift the burden of proof to providers. What is a "reasonable basis" for an assumption can probably argued by US lawyers for days. I would very much prefer an uncomplicated, light-weight process where the complainant simply furnishes evidence of its authority to speak on behalf of the actual complainant. This need not be their entire agreement, but it should at least be a formal Power of Attorney limited to representeation for certain issues. That way, providers have something substantial in hand to link the agents actions to the complainant.
Best,
Volker
Am 10.04.2015 um 22:57 schrieb Sherman, Valeriya: Thank you, Kathy for this language. It is a positive step in the right direction. We would like to propose a slight variation to it:
d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, and the Provider has a reasonable basis to believe that the Requestor is unauthorized to act on behalf of the rights holder, the Provider may request, and the Requestor shall provide, sufficient proof of agency.
Happy to hear others’ thoughts on this.
Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<mime-attachment.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Friday, April 10, 2015 4:20 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation - a few new words
Thanks Kathy,
Originally, I had concerns about this, similar to what Michele was expressing on the call.
In talking with our compliance team, it sounds like they have, for a new or unknown requester that's a third party, attempted to verify the relationship between them and the rights holder.
The below language seems reasonable to me, and I wouldn't think it would generate anything that doesn't already exist. Having it available may even make requests more efficient.
Graeme
On 2015-04-10 3:14 PM, Kathy Kleiman wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues):
-----------------------------------------------
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Hi Folks. Catching up on this topic, but the new language seems reasonable. I can't see requests like this being routine, but good to know the option exists. It's unlikely that providers would require this of anyone they consider a "Trusted Report," save perhaps the initial contact establishing that relationship. Thanks-- J. _______ James Bladel GoDaddy Sent using Outlook<http://taps.io/outlookmobile> for iPad On Fri, Apr 10, 2015 at 12:15 PM -0700, "Kathy Kleiman" <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote: Hi Todd and All, It sounds like we all agree that the requester must have the rights holders' authorization to make the submit the reveal request, make the infringement allegation and bind the rights holder to the limitations on the revealed data. For rights holders, that agency will be reflected in a document -- an agency agreement (or equivalent). That's all we're asking for -- the ability to see it if there are questions. We circulated some longer language earlier, but have been reviewing it. Building on Val's language, it may now boil down to a few additional words. They are below (in italics) and attached in the Reveal Policy (using the text by Mary for our meeting last Tues): ----------------------------------------------- (1) A good faith statement[, either] under penalty of perjury [or notarized or accompanied by sworn statement[1] (“Versicherung an Eides statt”),] from either the trademark holder or an authorized representative of the trademark holder, that —: a) provides a basis for reasonably believing that the use of the trademark in the domain name (i) allegedly infringes the trademark holder’s rights and (ii) is not defensible; b) states that Requestor will use Customer’s contact details only (i) to determine whether further action is warranted to resolve the issue; (ii) to attempt to contact Customer regarding the issue; and/or (iii) in a legal proceeding concerning the issue. c) Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request including to bind the rights holder to the limitations on the data once revealed[2]. d) Where the signatory is not the rights holder, an officer of the rights holder (if a corporate entity) or an attorney of the rights holder, the signatory shall agree to provide a copy of its agency agreement (or equivalent thereof) to the Provider if requested. ---------------------------------------------------------- Best, Kathy On 4/10/2015 9:33 AM, Williams, Todd wrote: Thanks Volker. The whole point of the attestation language is for the requester to attest that they have the prop0er authorization, so that the P/P Provider can then rely on that attestation. Nobody is arguing that a requester should be able to submit a request without doing so. Rather, the only question on the table is whether the requester also needs to provide documentation to the P/P Provider to “back up” that attestation – and if so, what form that documentation should take, and what steps the P/P Provider will need to take to validate it. Here’s what Michele said on our call on Tuesday on that question: “For us as a provider of any service having to go off and validate third party documents is going to cost me money, time, effort, legal fees. So I personally wouldn’t be interested in going down that route.” And then Volker here’s what you said: “Personally I would love to look at those contracts but not as a provider but rather as the curious cat that I am. As a provider I would not want to see those contracts and the specific details, I just would like to see a confirmation as part of the complaint that a certain standard has been followed and that would be of course also attributable to the complainant but I wouldn't look at the contract as a provider.” (Emphasis added). But then in your email below you seem to be arguing the opposite. So I guess I’m confused on where you stand on this. Do you want the requester to have to provide documentation in support of its attestation that the P/P Provider will then be obligated to legally validate? Or is it enough that the requester “confirm” (attest) as part of the complaint that a certain standard has been followed? -----Original Message----- From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Friday, April 10, 2015 4:32 AM To: Alex_Deacon@mpaa.org<mailto:Alex_Deacon@mpaa.org>; Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com> Cc: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation So you are proposing to move back into the realm of unsubstantiated claims? If we cannot even rely on the proper authorization of the agent, what can we rely on? And where is the harm in documenting the authority of the agent? The only cases where I see an issue is where there is no proper authorization and those should be excluded in the first place. So providing a PoA should really be a basic requirement. I really do not understand the issues with it. As to Privacy vs human rights: Privacy is the service. If a complainant only makes claims in order to remove the privacy, i.e. uses them as pretext, the request should be denied and the complainant ashamed of himself. Human rights on the other hand would require a detailed legal analysis. Also, Harm resulting from a denial of privacy not necessarily impacts human rights. Best, Volker Am 10.04.2015 um 00:50 schrieb Alex_Deacon@mpaa.org<mailto:Alex_Deacon@mpaa.org>:
Hi All,
Just wanted to add my thoughts to this thread.
Regarding attestation I support the language Val suggested at the beginning of this thread. Requiring a power-of-attorney or a half page authorization and attestation is unnecessary - especially if it neither has to be delivered to the Provider nor checked, verified or confirmed by the Provider.
As for III.C.5, I’m not 100% sure where we landed but I believe that ending that sentence (the pretext provision) with “privacy” is not the way to go. I am however OK with using “human rights (e.g., freedom of expression)”. We don’t want to get into a situation where the mere request for a disclosure is always countered as “contravening” privacy and thus a basis to refuse all reveal/disclosure requests.
Thanks.
Alex
On 4/8/15, 7:38 AM, "Volker Greimann" <vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
it can be a general PoA but a PoA should be provided.
Every lawyer making a legal request in Germany must, upon request,
provide a copy of his PoA to the requestee. Providing documentary
evidence of your authorization is also just good practice. How else
is a recipient of a complaint to know the agent is properly
authorized by the complainant?
Best,
Volker
Am 08.04.2015 um 16:32 schrieb Kiran Malancharuvil:
To your first comment, the distinction between a registrar and a requesting party is best dealt with in Todd's email and Steve's.
To your second, we are not going to complete and attach a power of attorney to every request.
Thanks,
Kiran
Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:24 AM, Volker Greimann <vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>> wrote:
Hi Kiran,
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients.
As a registrar, I know this very feeling very well. But such is life...
Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish.
I think the details can be worked out. Personally, I could live with the complainant including a power of attorney in the complaint attachments which would include the required language.
Volker
K
Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com<mailto:Todd.Williams@turner.com%3cmailto:Todd.Williams@turner.com>>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc<mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org<mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Volker Greimann
Sent: Wednesday, April 08, 2015 9:53 AM
To:
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd:
I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc<mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org<mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Kathy Kleiman
Sent: Tuesday, April 07, 2015 3:24 PM
To: McGrady, Paul D.;
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Hi Paul, Hi Jim,
No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best,
Kathy
:
Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best,
Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.
html> | VCard<http://www.winston.com/vcards/996.vcf> |
Email<mailto:pmcgrady@winston.com> |
winston.com<http://www.winston.com>
<image001.jpg>
From:
gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounc<mailto:gnso-ppsai-pdp-wg-bounces@icann.org%3cmailto:gnso-ppsai-pdp-wg-bounc>
es@icann.org<mailto:es@icann.org>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On
Behalf Of Kathy Kleiman
Sent: Tuesday, April 07, 2015 8:19 AM
To:
gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org%3cmailto:gnso-ppsai-pdp-wg@icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
attestation
Tx Val,
Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy
------------------------------------------------------------------
--------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question.
- Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider.
---
:
Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best,
Val
Valeriya
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Dear Steve and Kiran, I've been doing a bit of research and I think what is being proposed (in general terms - specific text still needed) is both within our scope and absolutely critical to what we (the WG) are doing. What we are concerned about is the chain of custody of data that may otherwise be protected by privacy laws, including data protection laws in the EU, Canada, Japan and S.Korea. Can the "agent" (which we are defining as a "third party, non-lawyer, non-officer of the company) really bind the "master" to the limitations on the use of the revealed data; is the "master" really responsible for the actions (and allegations) of the agent? It turns out that the "scope of the agency" is a huge question for many groups and regulators and in many settings. Further, "proof of agency" is regularly requested and required -- a necessary part of processes in which individuals and businesses are involved. For example, "proof of agency" by an individual or business changing its long distance telecommunications provider in the US requires "proof of agency" - by regulation! The "submitting carrier" has to have verified proof that the subscriber authorized it to make the switch. It turns out that too many telecom carriers were "abusing their agency" and changing carriers without authorization - a wide spread abuse called "slamming/" /in the US. /Changes in Preferred Telecommunications Service Providers, / US FCC Regulations, http://www.ecfr.gov/cgi-bin/text-idx?SID=4a06c5136e6c5cdc4ffd851c81aa279e&mc.... We have a lot of abuse in our field too. We know that trademark cease and desist letters and DMCA takedown notices are going out from consultants, from mills, from computers without adequate authorization and oversight.* If we would let him on our call, John Berryhill would share with us the numerous stories of abuse that he sees in cease and desist and other trademark/copyright infringement allegations. He would tell us about the ongoing overreach of non-attorney consultants and how he has pursued them for the "unauthorized practice of law" in making legal allegations of IP infringement. -- and won. Under the circumstances, it seems very reasonable to ensure at a minimum that proof of agency and scope of agency be available and ready to be provided - as needed - to the Service Provider. It may be important to the review of the Reveal Request or to ascertaining responsibility should there be misuse of the data once revealed. Ultimately, we all agree that the Trademark Owner/Copyright Owner is responsible for the proper authorization and activity of its consultants and clerks under this agreement -- "proof of agency" is the proper and reasonable way to show it. This last step seems very much in the scope of what we are responsible for doing - and its final finishing touch. I'm working on some very narrowly tailored language... Best, Kathy [Footnote *] I'm happy to provide many links to the abuse of DMCA notices if you would like, including to Prof Larry Lessig's work Note: What I have learned is that when the "agent" acts without authorization, the "master" walks away. It's in the "express language" of the agency agreement that the "master" is only responsible for the actions of the agent it has authorized - and walks away from anything else. On 4/8/2015 10:15 AM, Kiran Malancharuvil wrote:
I agree with Todd.
I have no interest in language that inserts itself into the relationship/authority under which we act on behalf of our clients.
Further, I don't understand why it's necessary. The agent binds the trademark owner and consequently the owner liable for any negative consequences of the agents (potentially - very unlikely) abusive request on their behalf. If there is some breakdown of the agency relationship, or its misrepresented, the requestor is liable. Either way there is someone to punish.
K
Kiran Malancharuvil Internet Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 8, 2015, at 7:08 AM, Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> wrote:
Thank you Volker. Yes, of course, I agree with all of that. And if we want to say that dotting the “i”s and crossing the “t”s in this context means including Val’s attestation language – such that a contracted party can ignore a complaint that doesn’t do that – I’m fine with that.
But I don’t think that’s what we’re talking about. We’re talking about what form the document that delegates authority from the trademark/copyright owner to third-party agents should take, and who must sign it. But if the contracted party isn’t going to have to check, verify, or confirm that form (and I don’t think there is any way they can, for the reasons that you and Michele mentioned yesterday), and in fact may never see it, that’s where I get confused.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Todd,
it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows.
ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered.
In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action.
Volker
Am 08.04.2015 um 15:29 schrieb Williams, Todd: I’m sorry, I’m getting quite confused on this part.
Ultimately what we’re discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we’ve been discussing is when can/should/must accredited P/P Providers disclose? We’ve developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val’s language as to what that attestation should look like). So far that all makes sense to me.
But now we’re debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn’t have anything to do with the P/P providers whom ICANN will be accrediting – right? As Kathy mentioned below, the forms will not “be delivered to the Provider and certainly not checked, verified or confirmed by the Provider.” But if that’s the case – meaning that the P/P Provider is completely out of the loop – then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn’t checking, verifying, or confirming it, and in fact may never see it? I guess I don’t see the contractual “hook” any more.
To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be “available for audit” – audit by whom? By ICANN?
Bottom line: I would think that the most that we can do is perfect Val’s attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don’t see how.
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data.
What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received.
The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed...
Best, Kathy
: Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don’t think ICANN has any business attempting to interfere in attorney/client relationships – that is clearly outside of our scope and ICANN’s remit.
Best, Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
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<image001.jpg>
From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation
Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?
James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.
Here's the language. Best, Kathy --------------------------------------------------------------------------------------------------------------------
In order to find a compromise between both sides of the aisle here I suggest the following possible solution:
Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.
Detailed Policy Language for Principle:
The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.
The letter would include the following provisions:
- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given.
- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.
- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.
- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.
- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.
- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. ---
: Dear all:
Following up on our productive discussion earlier this week, we’d like to offer a suggestion to modify the “attestation” provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: “Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request.”
We could even spell out the statement for the signatory to make in conjunction with each request : “I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request.”
These statements of authority and agency are to be made in good faith, under the penalty of perjury – just like representations forming the basis for the request and the requestor’s promise to use the data disclosed only for limited enumerated purposes – and the falsity of these statements would be redressable by the method(s) we agree on.
We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.
Best, Val
Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law
202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com>
1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007
Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia.
<image002.jpg><http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP
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Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
Mit freundlichen Grüßen,
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- Rechtsabteilung -
Key-Systems GmbH
Im Oberen Werk 1
66386 St. Ingbert
Tel.: +49 (0) 6894 - 9396 901
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Geschäftsführer: Alexander Siffrin
Handelsregister Nr.: HR B 18835 - Saarbruecken
Umsatzsteuer ID.: DE211006534
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www.keydrive.lu<http://www.keydrive.lu>
Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
--------------------------------------------
Should you have any further questions, please do not hesitate to contact us.
Best regards,
Volker A. Greimann
- legal department -
Key-Systems GmbH
Im Oberen Werk 1
66386 St. Ingbert
Tel.: +49 (0) 6894 - 9396 901
Fax.: +49 (0) 6894 - 9396 851
Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>
Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net>
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Follow us on Twitter or join our fan community on Facebook and stay updated:
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In principle I agree with Volker, but Todd's point remains valid - since Kathy is now proposing the details of documenting the relationship between two parties, neither under contract to ICANN, and that the document will neither be submitted to nor checked, verified or confirmed by any party that is under contract to ICANN, nor even one that is accredited to do business with a party under contract to ICANN, I think Kathy's proposal ranges too far afield for this group. In Volker's terms, it is no longer "a trigger for a reveal process." From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, April 08, 2015 9:53 AM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Hi Todd, it fits the remit only if that becomes a trigger for a reveal process, i.e. ifconditions a, b, and c are met and d, e, and f are not present, g follows. ICANN cannot tell third parties what to do. But it can tell a contracted party what they must accept and what they can ignore. And if a request does not meet the requirements, no obligation of the provider to act in a certain way is triggered. In other words, if the complainant dots the "i"s and crosses the "t"s, inaction by the provider could result in compliance action. If the complainant does not care to follow prescribed procedure, nothing the provider does results in compliance action. Volker Am 08.04.2015 um 15:29 schrieb Williams, Todd: I'm sorry, I'm getting quite confused on this part. Ultimately what we're discussing is an accreditation policy for P/P Providers, correct? And one of the questions (the big question) that we've been discussing is when can/should/must accredited P/P Providers disclose? We've developed a fairly detailed framework to answer that question (at least in the trademark and copyright context), and one component of that framework is that a request for disclosure must include the requisite attestation (and, for the record, I like Val's language as to what that attestation should look like). So far that all makes sense to me. But now we're debating what form the document that delegates authority from the trademark/copyright owner to third-party agents should take (and who must sign it)? As Paul mentioned: how does that fit into our remit? It doesn't have anything to do with the P/P providers whom ICANN will be accrediting - right? As Kathy mentioned below, the forms will not "be delivered to the Provider and certainly not checked, verified or confirmed by the Provider." But if that's the case - meaning that the P/P Provider is completely out of the loop - then how can ICANN regulate the content of that form (and who must sign it) by accrediting (or de-accrediting) a P/P Provider who has nothing to do with the form, isn't checking, verifying, or confirming it, and in fact may never see it? I guess I don't see the contractual "hook" any more. To put it another way: the trademark/copyright owners have no contractual relationship with ICANN, right? So how can ICANN tell them what form to use when they choose to delegate authority (and who must sign it)? And when we say that the forms should be "available for audit" - audit by whom? By ICANN? Bottom line: I would think that the most that we can do is perfect Val's attestation language (and I like it the way that it is), and then leave it at that. Does that mean that there is a risk that the attestation will be false in some cases? Yes. But can ICANN police false attestations through its contracting/accreditation of P/P Providers? I don't see how. From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 3:24 PM To: McGrady, Paul D.; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Hi Paul, Hi Jim, No, the proposal would not apply to attorneys. The proposal is designed to apply to consultants and other outside entities not bound by the attorney-client relationship. We'll be certain to clarify in the next version. But tracing back to our discussions over the last few weeks -- we have been concerned about parties *other than attorneys and officers of the company* making legal allegations and taking possession of private data. By the rules we live by, attorneys for the company (inside and outside counsel) and officers of the corporation are bound by a number of ethical and fiduciary rules (depending on their position) that help ensure that they will operate a) within the scope of their expertise in making legal allegations of infringement and b) within the scope of their authority to legally bind their companies to the limitations that the policy will require for the use of the revealed data. What we are looking for is some documentation from the Trademark Owner/Copyright Owner that consultants and others similarly have a) the expertise to make the legal allegations of infringement, and b) have the legal authority to bind Procter & Gamble and others to limitations on the use of the revealed data once received. The half page authorization and delegation to the consultant on letterhead from the Trademark Owner/Copyright Owner that I think Chris Pelling spoke of today would probably complement Val's self-attestation terms nicely. It does not have to be delivered to the Provider and certainly not checked, verified or confirmed by the Provider, but it should be available for audit. And again, applies to those not bound by the other rules we have discussed... Best, Kathy : Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don't think ICANN has any business attempting to interfere in attorney/client relationships - that is clearly outside of our scope and ICANN's remit. Best, Paul Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> [Winston & Strawn LLP] From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letter would include the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- : Dear all: Following up on our productive discussion earlier this week, we'd like to offer a suggestion to modify the "attestation" provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: "Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request." We could even spell out the statement for the signatory to make in conjunction with each request : "I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request." These statements of authority and agency are to be made in good faith, under the penalty of perjury - just like representations forming the basis for the request and the requestor's promise to use the data disclosed only for limited enumerated purposes - and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image002.jpg@01D071E4.7D8C4010]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Paul If we get a letter / fax / email (with proper contact details) from a law firm stating that they are acting for X and want Y then we're going to assume that they are indeed acting for X. Personally I've no interest in knowing what arrangements you have with your clients but I'm also assuming that it's highly unlikely for a law firm to contact us stating they represent someone if they don't. Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting & Colocation, Domains http://www.blacknight.host/ http://www.blacknight.press/ - get all our latest media releases & coverage http://blog.blacknight.com/ http://www.technology.ie/ Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Social: http://mneylon.social ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845 From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of McGrady, Paul D. Sent: Tuesday, April 7, 2015 7:36 PM To: Kathy Kleiman; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Kathy, would you proposal below apply to law firms as well? I will let the other service providers speak for themselves, but I really, really don't think ICANN has any business attempting to interfere in attorney/client relationships - that is clearly outside of our scope and ICANN's remit. Best, Paul Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> [Winston & Strawn LLP] From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Tuesday, April 07, 2015 8:19 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation Tx Val, Many of us think adding the statement you have drafted below would be very useful. Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization? James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer. Here's the language. Best, Kathy -------------------------------------------------------------------------------------------------------------------- In order to find a compromise between both sides of the aisle here I suggest the following possible solution: Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy. Detailed Policy Language for Principle: The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated. This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers. The letter would include the following provisions: - Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question. - Specifying the nature of the delegation and the subject to whom the delegation is being given. - For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared. This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies. - Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements. - Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated. - Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound. - Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider. --- : Dear all: Following up on our productive discussion earlier this week, we'd like to offer a suggestion to modify the "attestation" provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: "Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request." We could even spell out the statement for the signatory to make in conjunction with each request : "I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request." These statements of authority and agency are to be made in good faith, under the penalty of perjury - just like representations forming the basis for the request and the requestor's promise to use the data disclosed only for limited enumerated purposes - and the falsity of these statements would be redressable by the method(s) we agree on. We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts. Best, Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman@sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image002.jpg@01D071EF.C5C1CFC0]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg The contents of this message may be privileged and confidential. 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participants (16)
-
Alex_Deacon＠mpaa.org -
Bikoff, James -
Chris Pelling -
Christian Dawson -
Graeme Bunton -
James M. Bladel -
Kathy Kleiman -
Kiran Malancharuvil -
Luc SEUFER -
McGrady, Paul D. -
Metalitz, Steven -
Michele Neylon - Blacknight -
Sherman, Valeriya -
Victoria Sheckler -
Volker Greimann -
Williams, Todd