I meant to suggest everyone committing up to thirty (30) minutes twice a day if possible.

Chuck

From: gnso-rds-pdp-6-bounces@icann.org [mailto:gnso-rds-pdp-6-bounces@icann.org] On Behalf Of Lisa Phifer
Sent: Tuesday, October 17, 2017 9:17 AM
To: 'RDS PDP DT6' <gnso-rds-pdp-6@icann.org>
Subject: [Gnso-rds-pdp-6] Notes and Action Items from DT6 17 October Call
Importance: High

Notes and Action Items from Drafting Team 6 Kick-Off Call

1. Welcome & roll call

• Attendees: Roger Carney, Vicky Sheckler, Farzaneh Badii, Griffin Barnett (joining late), Paul Keating (joining late by phone)
• Absent: Juan Manuel Rojas

Action Item: All DT members to commit 30 minutes a day over the next week to participate in drafting team email.

2. Brief recap of drafting team goals and due date

a. Overall goal: To enable better understanding of the Legal Actions purpose for Whois data, first in DT6 and then in the full RDS PDP WG.

b. Tasks for drafting team

i. Describe tasks commonly involved in carrying out this purpose.

ii. Describe the parties who often access data

iii. List gTLD registration data often involved in this purpose.

iv. Describe the purpose succinctly in one paragraph

v. Prepare and submit not later than Thursday, October 26.

vi. Provide an overview at F2F on Saturday, October 28:
Roger Carney will participate in-person at ICANN60, Vicky will participate remotely, Farzeneh will participate one way or the other

Action Item: All DT members to try to participate in ICANN60, either in person of remotely, to assist with presenting team’s output at F2F on Saturday, October 28

3.  All team members to share their level of experience with the legal actions purpose

• Farzeneh has legal experience but is here to learn about this purpose from the rest of the team
• Roger has little experience with this purpose but comes from more of an operational perspective Vicky is Dep Gen Counsel for RIAA, most of what they does is in intellectual property protection, use WHOIS extensively for enforcement.
• Griffin is IP attorney, practicing ~5 years in trademark and also copyright space. Rely on WHOIS info to investigate infringement issues and use it in due diligence to decide whether to pursue UDRP complaint or other litigation, to identify appropriate name parties, etc
• Paul is Director with Domain Tools (publishes WHOIS and other data used in the context of domain name disputes) Also serves as counsel (often for defense, for example to prove client is not the owner of a DN). Use WHOIS (content and historical) to verify ownership of DN to determine whether seller is really owner and can sell DN (part of due diligence), or payer has some contract with party to whom DN being sold.

4. Introduce EWG's definition of this purpose as a starting point for discussion

• See both EWG Report excerpts on page 2 of template
• Is “Legal Actions” the appropriate name for this purpose? Seems awfully broad and encompasses a variety of actions. Distinction the EWG made was the user of the data (as opposed to law enforcement using data in a criminal investigation) - this purpose encompasses a variety of civil and criminal cases, where data is needed by parties other than law enforcement, possibly in advance of filing suit or notifying legal authorities.

5. Initial Discussion

• Fake site copycat type sites engaging copyright infringement ("string rippers" who distribute audio of copyrighted recording (pirated material) without permission) - went to WHOIS info to find out more about site owners and to contact them (sent letter). One was reachable via postal letter. Another used P/P so worked with registrar to try to identify whether registrant was "real." Another case, used WhoWas to look at who previously registered site now registered via P/P to see a pattern and that the sites were in fact related
• How do you determine there is a copyright infringement? Is this based on your experience or do you go to court to determine this? In U.S. and several western countries, law provides that private citizens can take action against actors - under civil law, we need to investigate claim and they notify the individual you believe are in violation of law, and ask for relief (e.g., change activities, damages). In UK, you MUST send this type of letter before you can file claim with the court. This is why WHOIS is used before going to court, to determine whether lawsuit can be filed at all.
• Griffin uses WHOIS to determine whether there are other bad faith actors involved in a DN registration, email address as first point of contact to discuss the matter with registrant, if no reply client may request escalation - for example UDRP complaint, using WHOIS data to name respondent in that legal action
• Paul - see intro above for a few use cases taken in the last 60 days. In addition, as director of Domain Tools, DT uses WHOIS to provide services to law enforcement, private companies
• When WHOIS data is used for copyright enforcement, trademark infringement, etc, to contact parties involved, what happens when information is incomplete, what other data sources are used? Answer: Reach out to Registrar (sometimes Registry) to get information. May also file WHOIS complaint re: inaccuracy in hopes of getting inaccuracy resolved (mechanism available under 2013 RAA).

5. Assign responsibilities for creating first drafts

• DT can rename purpose to reflect definition
• See template and sections that need to be fleshed out

i. Describe tasks commonly involved in carrying out this purpose.

ii. Describe the parties who often access data

iii. List gTLD registration data often involved in this purpose.

iv. Describe the purpose succinctly in one paragraph

Action Item: Vicky and Griffin volunteer to take a crack at drafting i/ii/iii above, starting from EWG text, but reflecting discussion today - out to DT mailing list no later than Thursday morning (48 hrs from now)

Action Item: All to review and comment on text emailed by Vicky and Griffin, making sure it includes the breadth of legal actions of concern, noting that DT4 is covering due diligence during DN purchase/sale

Action Item: All DT6 members to use specific subject lines please, and be sure to send your mail to the DT6 list <gnso-rds-pdp-6@icann.org> - the mail server will insert the tag [Gnso-rds-pdp-6] for all messages sent to that dedicated list for this team's use.

7.            Next steps and action items

a. List discussion on agenda item 5.c. (Chuck will initiate this after call.)

b. Volunteers for action item above will submit their first drafts to the list and initiate list discussion not later than Thursday, October 19

8.            Next teleconference call(s)

a.            Suggestions:

i.             Next call on Monday October 23 or Tuesday October 24

ii.            Third call early on Thursday October 26 if needed to finalize deliverable

b.            Chuck will request a Doodle Poll for the following days:

i.             Monday October 23

ii.            Tuesday October 24

iii.           Thursday October 26

Action Item: GNSOsecs to send Doodle polls for 23/24 Oct and for 26 Oct.