From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Tushnet, Rebecca
Sent: Tuesday, February 06, 2018 8:26 AM
To: BECKHAM, Brian; Julie Bisland; gnso-rpm-wg@icann.org
Cc: gnso-secs@icann.org
Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018

***Caution: External email***

I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.

In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.

Rebecca Tushnet

Frank Stanton Professor of First Amendment Law, Harvard Law School
703 593 6759

From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int>
Sent: Tuesday, February 6, 2018 6:04:27 AM
To: Julie Bisland; gnso-rpm-wg@icann.org
Cc: gnso-secs@icann.org
Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018

Thanks Terri, Julie,

Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.

Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.

If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).

Brian

From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland
Sent: Thursday, February 01, 2018 2:24 PM
To: gnso-rpm-wg@icann.org
Cc: gnso-secs@icann.org
Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018

Dear all,

Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB

MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3

Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/

The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar

** Please let me know if your name has been left off the list **

Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/

Main wiki page for the working group: https://community.icann.org/x/wCWAAw

Thank you.

Kind regards,

Terri