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 “substantive” 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 (“to
see if registrants themselves believe the standard is being misapplied”).
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
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.
Frank Stanton Professor of First Amendment Law, Harvard Law School
703 593 6759
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
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