While I also have some concerns about the ³re-litigating² issue, there is no need to do so. We are only trying to determine at a relatively high level if the correct standard appears to be applied consistently. I feel a review is appropriate. However any review must be of a statistical meaningful sample. I don¹t believe that focussing only on appeals is an appropriate sample from which to make determinations regarding the entire pool of URS cases. Appeals happen because of many things which may or may not be related to the standard having been correctly applied (e.g. Domain value, low cost of appeal, personal vendettas, etc). And, I believe that the review should be undertaken with a request for the underlying complaint and response (if any). These documents are needed so as to ensure that the orders do in fact correctly apply the standard to the actual evidence submitted. Obviously we need to provide appropriate protection for the documents at issue with gated access to a limited group who will retain the documents in confidence. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of "BECKHAM, Brian" <brian.beckham@wipo.int> Date: Tuesday, February 6, 2018 at 3:18 PM To: "Tushnet, Rebecca" <rtushnet@law.harvard.edu>, Julie Bisland <julie.bisland@icann.org>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Cc: "gnso-secs@icann.org" <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 Rebecca,
On this perhaps somewhat semantic point, I tend to agree, and I could be wrong but I think what is actually meant is a ³substantive² review (which as was noted by several people on the call, risks re-litigating cases without the benefit of the pleadings and drawing policy implications therefrom). Below I was merely quoting from the transcript.
In terms of the appeals/lack thereof, with respect, I think it is pretty well articulated below (³to see if registrants themselves believe the standard is being misapplied²).
Another perhaps more colloquial way of putting it would be to say, if there are misgivings about the standard being applied in the URS and to your point about drawing policy inferences form the rate of default, and especially when it literally costs nothing* to respond are people putting their money where their mouth is, so to speak?
* Except in consolidated cases against 15 or more domain names, which I think may not yet have even occurred.
The point was that we are in somewhat of a chicken-and-egg scenario, so my suggestion was merely intended to propose a more rational and focused first pass to review select cases, if indeed it is even the collective consensus of the WG to do so (which so far seems far from clear).
If a first pass at such a narrower dataset reveals it would be beneficial to expand the effort, the WG could take it from there.
Best regards,
Brian
From: Tushnet, Rebecca [mailto:rtushnet@law.harvard.edu] Sent: Tuesday, February 06, 2018 2:26 PM To: BECKHAM, Brian; Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
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 ³subjective and qualitative review² 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 ³no².
If on the other hand, there is a significant instance of appeals, that may merit the type of ³review² 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 ³improvements² 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 <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_u... xyB&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c 4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=B6_xLKTzbSMugFS24znCh5-A OPHfaylATml5PH6QU2Q&e=>
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3 <https://urldefense.proofpoint.com/v2/url?u=https-3A__audio.icann.org_gnso_gn... o-2Drpm-2Dreview-2D01feb18-2Den.mp3&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQ vQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQC CLKIA&s=a5MR5HKPZXxEzSYhPVLgBP-z5u9CfwX-FYF4NAYkUmE&e=> Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__participate.icann.org_p... mww2tis6b_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I -0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=RJs2bS_ca1WJo0SpJ IVmki2x7PKi3Vys_oqa-pAwDgA&e=>
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group... 2Dactivities_calendar&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEi DR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=ur-xpg tinOuwMSg8wnX6YTUr9mQF4tVqWR5Uu867J80&e=>
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Thank you.
Kind regards,
Terri
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