Hi Kathy, Thank you for your question. Our language is meant mainly to streamline and clarify the existing standards. III.B.2 previously provided that the Provider had to "state to Requestor in writing or by electronic communication its reasons for refusing to disclose." Section III.E provided that "If refusal to disclose is based on objection to disclosure by the Customer, Requestor must be informed of the reasons for objection." The new language consolidates them into one provision, eliminating redundancies and III.E. The new consolidated provision provides that regardless of where the reasons for refusing to disclose came from--the Customer or the Provider--the Provider would have to inform the Requestor of those reasons. The addition of the term "specific" is intended to express the idea that a reason for refusal cannot be a general, conclusory statement, such as "No, because Customer has a defense." The standards give providers a lot of discretion to reject requests, but to be fair, the refusal should clearly apprise the requestor of the reasons for it. Regarding III.C.3, the provision as is appears to allow the Provider to refuse disclosure based on any “adequate reason,” which is too vague, (and not what we believe we intended as a group). The remaining language proposed for III.C.3 is thus merely intended to clarify this provision and reflects a mirror image of the requirements for the Requestor: that it must provide a "basis for reasonably believing" there is 1) an infringement that is 2) not defensible. The new language simply clarifies that a Provider can reject the request when it concludes that either one or the other criterion has not been met. And as Vicky pointed out, C.5 provides an additional ground for rejection. 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:imageaf33fb.JPG@47340308.46ada7c8]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Victoria Sheckler [Victoria.Sheckler@riaa.com] Sent: Wednesday, April 15, 2015 1:35 PM To: Kathy Kleiman; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E We think Val’s approach is more reasonable, and consistent with the template requirements. Note c.5 deals w/ pretext, and the draft already provides p/p providers with a lot of discretion. I support Val’s approach. From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Wednesday, April 15, 2015 10:02 AM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E Hi Val, Thank you for new language as we work to close the report for publication. May I ask a few questions? In III.B.2 - the change from [existing] (2) state to Requestor in writing or by electronic communication its reasons for refusing to disclose to [new/proposed] (2) state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose -- seems to raise the bar on the response of the Provider to the Requestor -- and there may be many Requests! So let me as, what are you thinking of in terms of the "specific reasons" that a Provider might have to give? How extensive or detailed would you like their answers to be? Re: III.C.2 and 3 I think the existing language is quite good -- with apologies, because I know the genuine good will in which the changes are offered, bringing in a Customer's "belief" and the Providers "belief" seems a little ambiguous and hard to prove. I look forward to looking at III.B.2 with you... but re: III.B.3, I think we had pretty good agreement on the existing language and these new proposals may result is a lot of additional work and discussion. Best, Kathy 1. On 4/14/2015 4:12 PM, Sherman, Valeriya wrote: PPSAI Team: Given that we are getting ready to publish the initial report, we’d like to propose the following, hopefully non-contentious suggestions to III.B, C, and E. We look forward to your thoughts. B. … (1) … (2) state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose. (3) … C. Disclosure can be reasonably refused, for reasons consistent with the general policy stated herein, including, but not limited to any of the following: (1) … (2) the Customer has objectsed to the disclosure and has providesd [adequate sufficient] reasons against disclosure, including without limitation a reasonable defense for its use of the trademark or copyrighted content in question for believing (i) that it is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that its use of the claimed intellectual property is defensible; (Note: This language tracks the Requestor’s standards warranting disclosure, and is the opposite side of the same coin.) (3) the Provider has found provides [adequate sufficient] reasons against disclosure for believing (i) that the Customer is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that the Customer’s use of the claimed intellectual property is defensible; (4) … (5) … … E. If refusal to disclose is based on objection to disclosure by the Customer, Requestor be informed of the reasons for objection. (Could be consolidated with III B (2)). 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:image001.jpg@01D07780.F4A11120]<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 ________________________________ 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. 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All, I think there are a lot of major language shifts taking place a) after our calls and b) in hopes of bringing final language into the Report that is being finalized today. Unfortunately, I think Val's language for III.C.2 and especially III.C.3 has enormous consequences and cast a major change to language that has remained essentially unchanged in our many weeks of discussion. The original language was essentially brought to the WG, accepted by the WG and ready to be put out for comment by the WG -- with brackets (as in so many other parts of the report) -- but all the time with the language of the committee that drafted it. Now we are being asked to review such changes a) under a fast deadline and b) with no in-person comment. I have to object - and call for the original language to stay. If we want to meet next week to talk about these new proposed changes, let's do that. But we have no precedent of accepting major changes without exploring them in person and on the calls -- as we have explored every other significant change. Best, Kathy :

Thanks Kathy. On III(C)(2) and (3): I don’t think we ever had agreement on the language. “Adequate” was still bracketed precisely b/c we hadn’t agreed on that standard (I think the initial language was “compelling”, and I think it had changed a couple times in between).

In the spirit of trying to address some of our loose ends and leave as little language bracketed as possible, I think Val’s proposal for III(C)(2) and (3) does a good job of finding a “third way” between the “compelling” camp and the “adequate” camp. Rather than pick b/w those two standards, it just says: let’s use the mirror of what the Requestor has to allege under II(A)(6)(a), II(B)(7)(A), and II(C)(6)(A). As a way of bridging the current gap that we’ve got, that seems reasonable to me: if the language is good for the Requestor, why wouldn’t it be good going the other way? Or, to put it another way: why would that language “seem a little ambiguous and hard to prove” going one way but not the other?

I agree with you that we don’t want a lot of additional work and discussion at this point. I guess where I disagree with you is on which of the two options that is on the table – 1) fighting it out b/w “compelling” and “adequate” or 2) incorporating language that we’ve agreed to elsewhere – is more likely to lead to additional work and discussion.

TW.

*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Kathy Kleiman *Sent:* Wednesday, April 15, 2015 10:02 AM *To:* gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E

Hi Val, Thank you for new language as we work to close the report for publication. May I ask a few questions?

In III.B.2 - the change from [existing] (2) state to Requestor in writing or by electronic communication its reasons for refusing to disclose to [new/proposed] (2) state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose --

seems to raise the bar on the response of the Provider to the Requestor -- and there may be many Requests! So let me as, what are you thinking of in terms of the "specific reasons" that a Provider might have to give? How extensive or detailed would you like their answers to be?

Re: III.C.2 and 3 I think the existing language is quite good -- with apologies, because I know the genuine good will in which the changes are offered, bringing in a Customer's "belief" and the Providers "belief" seems a little ambiguous and hard to prove.

I look forward to looking at III.B.2 with you... but re: III.B.3, I think we had pretty good agreement on the existing language and these new proposals may result is a lot of additional work and discussion.

Best, Kathy

1.

On 4/14/2015 4:12 PM, Sherman, Valeriya wrote:

PPSAI Team:

Given that we are getting ready to publish the initial report, we’d like to propose the following, hopefully non-contentious suggestions to III.B, C, and E.

We look forward to your thoughts.

B. …

(1)…

(2)state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose.

(3)…

C. Disclosure can be reasonably refused, for reasons consistent with the general policy stated herein, including, but not limited to any of the following:

(1)…

(2)the Customer has objectsed to the disclosure and has providesd [adequate sufficient] reasons against disclosure, including without limitation a reasonable defense for its use of the trademark or copyrighted content in question for believing (i) that it is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that its use of the claimed intellectual property is defensible;

(Note: This language tracks the Requestor’s standards warranting disclosure, and is the opposite side of the same coin.)

(3)the Provider has found provides [adequate sufficient] reasons against disclosure for believing (i) that the Customer is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that the Customer’s use of the claimed intellectual property is defensible;

(4)…

(5)…

…

E.If refusal to disclose is based on objection to disclosure by the Customer, Requestor be informed of the reasons for objection. (Could be consolidated with III B (2)).

*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 am fine with putting these changes on the agenda for discussion on Tuesday, as well as continuing this discussion on list, but as a matter of factual accuracy, here is the corresponding language that was brought to the WG by the informal subgroup of service providers and IPR interests on Feb. 23 (“the language of the committee that drafted it”): Disclosure can be reasonably refused, consistent with the general policy stated herein, including, for example, the reason that the Service Provider has already published Customer contact details in Whois as the result of termination of privacy and proxy service; that the Customer has objected to the disclosure and has provided compelling reasons against disclosure; or that the Customer has surrendered its domain name registration in lieu of disclosure, if the Service Provider offers its Customers this option. So we can consider three options: (A) The original language bolded above (“compelling reasons”); (B)The language later proposed (“adequate reasons”); (c)Val’s proposal (“sufficient reasons” that one of the two criteria in the templates has not been met, i.e., either there is a reasonable basis for concluding there is not an infringement or there is a reasonable basis for concluding the infringement is defensible). Note that this is in addition to the “pretext” basis for refusing disclosure, which in its latest formulation reads as follows: (5) that the Customer has provided, or the Provider has found, specific information, facts, and/or circumstances showing that the Requestor’s trademark or copyright complaint is a pretextual means of obtaining the Customer’s contact details for some other purpose unrelated to addressing the alleged infringement Steve From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Thursday, April 16, 2015 8:32 AM To: Williams, Todd; gnso-ppsai-pdp-wg@icann.org; Graeme Bunton; Metalitz, Steven Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E All, I think there are a lot of major language shifts taking place a) after our calls and b) in hopes of bringing final language into the Report that is being finalized today. Unfortunately, I think Val's language for III.C.2 and especially III.C.3 has enormous consequences and cast a major change to language that has remained essentially unchanged in our many weeks of discussion. The original language was essentially brought to the WG, accepted by the WG and ready to be put out for comment by the WG -- with brackets (as in so many other parts of the report) -- but all the time with the language of the committee that drafted it. Now we are being asked to review such changes a) under a fast deadline and b) with no in-person comment. I have to object - and call for the original language to stay. If we want to meet next week to talk about these new proposed changes, let's do that. But we have no precedent of accepting major changes without exploring them in person and on the calls -- as we have explored every other significant change. Best, Kathy : Thanks Kathy. On III(C)(2) and (3): I don’t think we ever had agreement on the language. “Adequate” was still bracketed precisely b/c we hadn’t agreed on that standard (I think the initial language was “compelling”, and I think it had changed a couple times in between). In the spirit of trying to address some of our loose ends and leave as little language bracketed as possible, I think Val’s proposal for III(C)(2) and (3) does a good job of finding a “third way” between the “compelling” camp and the “adequate” camp. Rather than pick b/w those two standards, it just says: let’s use the mirror of what the Requestor has to allege under II(A)(6)(a), II(B)(7)(A), and II(C)(6)(A). As a way of bridging the current gap that we’ve got, that seems reasonable to me: if the language is good for the Requestor, why wouldn’t it be good going the other way? Or, to put it another way: why would that language “seem a little ambiguous and hard to prove” going one way but not the other? I agree with you that we don’t want a lot of additional work and discussion at this point. I guess where I disagree with you is on which of the two options that is on the table – 1) fighting it out b/w “compelling” and “adequate” or 2) incorporating language that we’ve agreed to elsewhere – is more likely to lead to additional work and discussion. TW. 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: Wednesday, April 15, 2015 10:02 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - suggestions for III.B, C, and E Hi Val, Thank you for new language as we work to close the report for publication. May I ask a few questions? In III.B.2 - the change from [existing] (2) state to Requestor in writing or by electronic communication its reasons for refusing to disclose to [new/proposed] (2) state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose -- seems to raise the bar on the response of the Provider to the Requestor -- and there may be many Requests! So let me as, what are you thinking of in terms of the "specific reasons" that a Provider might have to give? How extensive or detailed would you like their answers to be? Re: III.C.2 and 3 I think the existing language is quite good -- with apologies, because I know the genuine good will in which the changes are offered, bringing in a Customer's "belief" and the Providers "belief" seems a little ambiguous and hard to prove. I look forward to looking at III.B.2 with you... but re: III.B.3, I think we had pretty good agreement on the existing language and these new proposals may result is a lot of additional work and discussion. Best, Kathy 1. On 4/14/2015 4:12 PM, Sherman, Valeriya wrote: PPSAI Team: Given that we are getting ready to publish the initial report, we’d like to propose the following, hopefully non-contentious suggestions to III.B, C, and E. We look forward to your thoughts. B. … (1) … (2) state to Requestor in writing or by electronic communication its the specific reasons for refusing to disclose. (3) … C. Disclosure can be reasonably refused, for reasons consistent with the general policy stated herein, including, but not limited to any of the following: (1) … (2) the Customer has objectsed to the disclosure and has providesd [adequate sufficient] reasons against disclosure, including without limitation a reasonable defense for its use of the trademark or copyrighted content in question for believing (i) that it is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that its use of the claimed intellectual property is defensible; (Note: This language tracks the Requestor’s standards warranting disclosure, and is the opposite side of the same coin.) (3) the Provider has found provides [adequate sufficient] reasons against disclosure for believing (i) that the Customer is not infringing the Requestor’s claimed intellectual property rights, and/or (ii) that the Customer’s use of the claimed intellectual property is defensible; (4) … (5) … … E. If refusal to disclose is based on objection to disclosure by the Customer, Requestor be informed of the reasons for objection. (Could be consolidated with III B (2)). 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:image001.jpg@01D07827.84BA1670]<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