Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers
Michael: I think the fundamental problem with your question is that it assumes that there is a basic policy of having an equal number of panelists that represent complainants and respondents. Neither the URS nor the UDRP require this, and it is not part of the policy. The issue is whether panelists appointed are impartial and whether the providers do anything to make sure that is the case. Your question, on the other hand, suggests that unless you have balance between the two camps there is no impartiality. Do you have concrete evidence in support for that proposition beyond a handful of decisions you might not like. I think Cynthia's points were meant to point out the difficulties with your balance proposition, why your question will not provide meaningful data and why the focus should not be on some alleged concept of artificial balance but should be on the fundamental issue of impartiality. Simply put, are the providers following the policy and appointing panelists that are generally impartial and conflict free. That is the only question that is relevant at this point. If you feel that the policy should be changed then raise it with the entire group and the group can then debate that for however long it takes. Georges From: mkaranicolas@gmail.com Sent: April 27, 2018 8:29 PM To: cking@modernip.com Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Thanks. This seems to be basically a restatement of the objections you raised previously. Some of these issues (such as whether the information is "unknowable") have already been resolved by shifting focus to any policies which may have been put in place. The remainder seems to consist of speculation regarding potential policy proposals which may be suggested based on the findings. Obviously we're not at the point where we're debating any policy connected with this yet (though it's a neat trick to raise a bunch of hypotheticals which nobody has suggested and then complain that the question lends itself supposition and misunderstanding). Let's just get the data first, and leave the conversations about policy responses until afterwards. On Fri, Apr 27, 2018 at 7:14 PM, Cyntia King <cking@modernip.com<mailto:cking@modernip.com>> wrote: Hi Michael & Georges, Thank you for taking the time to consider this question. My comments below: Please find a revised question regarding examiners attached: In selecting examiners, do you have policies in place that are aimed at developing a roster which includes a balance of lawyers who focus on trademark enforcement and those who represent respondents, and would you say these policies have been effective in generating a balance of examiners who represent both sides? In my opinion this question is a problem & should not be included in the survey. The underlying intent of this question - balance of lawyers representing TM owners & Respondents – (1) seems to assume a non-existent guideline, (2) is unknowable & (3) is inappropriate. 1. This is not a policy in the provider contract, so URS Providers should not be accountable for policies/effectiveness. This is a policy issue - as the guideline does not exist, should we create it? 2. As not all Examiners are practicing attorneys (some are academics, judges, policy experts or simply non-practicing), do we intend to set hiring levels for additional classes of Examiners? 3. Whether a lawyer is as “enforcement” or “respondent” is virtually unknowable: * Providers will not know (and should not make assumptions about) the client makeup of their Examiners. * As many have observed, Examiners may not be free to characterize the nature of their client’s work; and looking at URS cases filed is not a good way to know the extent of a lawyers work profile. * I have clients who are both TM-holders & domainers; certainly this can apply to attorneys, as well. * Further, there may be little/no distinction between TM enforcement & respondents. (E.g. the legal battle between Microsoft & Apple over the term “app store” is a good example of how both sides can be complainant/respondent even on the same issue. Notably both companies had domains associated w/ “app store” as did Salesforce.) 4. This question is inappropriate & presupposes the dubious ‘value’ of “generating a balance of examiners who represent both sides.” * It is a fallacy that an attorney who happens to have clients in either camp means they cannot be impartial. We expect civil/criminal judges (the vast majority of whom were attorneys before being enrobed) to be impartial. * The idea of “balance” is fatally flawed: i. Do we really want to inject this kind of partisanship into URS/UDRP decision-making? It’s reasonable to believe that this kind of policy will lead to ‘Examiner-shopping’ by both claimants & respondents. This will not bring the “enforcement” & “respondent” communities closer together, rather this is sure to create new divisions. ii. Using to the reasoning behind the questions, any partisanship in the writing of decisions would lead to even less certainty of outcomes than currently exists, as panelist decisions swing according to their designated camp. iii. What is balance? Is it assumed that the goal is 50/50? What if the total pool of attorneys qualified to fill the role of Examiner are 70% “enforcement” & 30% “respondent”? Do we then impose a policy based on the proportionality of the applicant pool? iv. If it’s determined that “balance” is desirable and we can define what that means, this could be a logistical challenge for Providers to achieve. How do you recruit Examiners that meet this criteria? How long would it take to actually meet such a goal? What is the increased cost to turn away qualified applicants in order to fill the quota of “enforcement” or “respondent” Examiners? v. How will other obligations (like requirements to conduct proceedings in local languages) affect this “balance”? And how burdensome will it be for Providers to try to extend this criteria across other qualifications? In conclusion, this question is fraught w/ potential for supposition, misunderstanding & inaccuracy, and has dubious value. The criteria for Panelists is that they have to be impartial and declare they do not have a conflict. Even if ”balance” were desirable, it is a near-impossibility to create this mythical symmetry of interests. Should the working group decide this is a policy we may wish to pursue, then we would need a much larger discussion on the issue. Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088<tel:+18182096088> [MIP Composite (Email)] From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Nahitchevansky, Georges Sent: Thursday, April 26, 2018 6:52 AM To: Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>; McAuley, David via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers My concern with compound questions like this is that they have underlying assumptions that we are not even sure exist (for example that there is a possible imbalance) which make them loaded questions. Moreover, as they are bulky they will likely not generate much relevant information. It seems to me that such an inquiry should be more neutral, focused on what the URS rules specifically require of providers in appointing panelists and inquire as to whether those rules are being followed. From: mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com> Sent: April 25, 2018 3:58 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Hi all, Please find a revised question regarding examiners attached: In selecting examiners, do you have policies in place that are aimed at developing a roster which includes a balance of lawyers who focus on trademark enforcement and those who represent respondents, and would you say these policies have been effective in generating a balance of examiners who represent both sides? Thanks, Michael Karanicolas On Wed, Apr 25, 2018 at 1:44 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
During today's call, I was asked to propose new wording for some of the questions. Using the page numbering of the April 24th redline version as the starting point:
1. page 6, Q11:
Current Version: "Do you believe the deadline for filing Responses is long enough? Please provide your rationale. If not, what time period would you support, keeping in mind that the URS is supposed to operate with rapidity?"
Proposed Language: "Have you received any feedback from respondents that the time period to respond to a URS complaint is too low?
[as an aside, conceivably, if all we're looking for is facts/data from the provider, rather than their opinion on policy changes, part of this might already be captured implicitly through Q3 on page 5; although, some respondents might have suffered through a short deadline, without asking for an extension]
2. Page 9, Q12(c):
Current Version: "What is the procedure for assigning examiners? (i.e. how large is the pool of examiners, is it randomly assigned; some studies suggest a large number of cases are handled by a relatively small number of potential examiners)"
Proposed Language: "12(c)(i) How large is the pool of URS examiners? 12(c)(ii) Are the examiners randomly assigned, rotated, or assigned using some other procedure (please specify)?"
[aside: 12(c)(ii) seems to have already been responded to partially, based on the earlier wording of the question]
3. Page 13, Q10:
Current Version: "Does the Provider have clerks or other staff that 'ghost-write' decisions for Examiners, before the Examiner has made a Determination independently, that the Examiner can simply sign their name to if they agree with it?"
Proposed Language: [trying to be as diplomatic as I can -- my company does own Diplomacy.com<http://Diplomacy.com>! :-) ] "To what extent does the Provider supply Examiners with information, analysis or research concerning a Complaint or Response that is not to be found within the Complaint or Response itself? Does the Provider provide drafts or exemplars to the Examiners?"
[aside: the "drafts" and "exemplars" language came from Rebecca's suggestion in the WebEx chat today; I hope I used it appropriately, although I'm welcome to friendly amendments; you'll recall that the "ghost-writing" term came from Paul Keating's comment to the article at:
http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
"In the case of NAF they are (with reason) suspected of having inside clerks ghost-write opinions for delivery to the panelists." (excerpt; full quote has been posted before on this list)
As I noted in the Webex chatroom and orally today, there had been instances in the past where the same gibberish/nonsense appeared verbatim across multiple decisions (in the UDRP) from different panelists
http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udr...
That article had a comment from Brett Lewis that stated (I'll quote it in it's entirety, to not take things out of context):
"NAF decisions are drafted by in-house staffers who present the drafts to Panelists. If the Panelists agree with the staffer's decision, they can simply adopt the decision as their own. If the Panelists disagree, the Panelists have to draft a new decision. There is certainly an incentive to go along with the staff draft, but let's give panelists a little more credit. Most panelists that is.
Staffers undoubtedly cut and paste, as all lawyers do — especially when working for so little money. The real issue is whether the cutting and pasting is a sign of something more sinister — bias. Justice by factory because the trademark holder is always right.
It seems that a number of the cut and paste jobs here actually went in favor of the Respondents. I'd need to see more before I could say this is bias and not just sloppiness. Also, what was being cut and pasted makes a big difference. The UDRP system is far from perfect, and certain panelists are doing more of a hatchet job than they should be, but when they are getting paid a nominal amount to review papers and draft a decision, some degree of recycling is likely to happen. Still, it wouldn't kill NAF to review the decisions before they're published. "
Later on, in response to my question whether WIPO does the same, he wrote (with the title of "Sausage Factory"):
"I don't believe that WIPO does it.
I'm not sure exactly how NAF does it, but they used to have staff members draft the decisions first, then submit them to the Panelists. The Panelists could adopt, modify, or reject the draft decisions. I'm not sure if they do that when there's a three-member Panel, since contested matters are generally more complex and more difficult to decide."
and later:
"Judges often rely on law clerks to assist them to draft decisions. The idea may not be all that different. The only issue would be whether panelists are abdicating their responsibility to be impartial fact finders in lieu of just signing onto a draft decision. I don't believe that most panelists would do that, but for some, it might happen — especially if they have a particular view of respondents that fits the draft."
So, I hope the above helps members of this PDP understand that this issue isn't "coming out nowhere".]
Sincerely,
George Kirikos 416-588-0269<tel:4165880269> http://www.leap.com/
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Thanks for the updated document, and for reflecting many of the comments I had previously submitted:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002890.html
Some additional thoughts:
A] On page 13 of the redline document, Q10 (with regards to the "ghost-writing"), the question was not intended to be "incendiary", as per Justine Chew's comment. The issue had been brought up in the past by Paul Keating (a member of this PDP), in a comment to an article in 2010 on CircleID:
http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
See his comment (#2) on that page, which I'll reproduce in full:
"Jeff, Here are a few of the things that worry me about all of this:
1. No ADR provider is under contract with ICANN. There is thus absolutely no accountability. Given NAF's history with the authorities in connection with their having fixed the credit card arbitration process, one wonders why this situation remains.
2. Concerning statistics (mostly about NAF) have come out regarding repetative appointments of a select few panelists.
3. On prior occasions I have asked for corrections in NAF decisions and have been told that it was not possible, that they would not request panelists to do so, and they objected to any attempt on my part to raise the issue directly with the panelists - even if copying the other side in any correspondence.
4. I can understand the desire not to have matters continued post decision - such would be contrary to the spirit of the UDRP. However, to undertake a change to decisions without publication and an audit function is simply unheard of. In the US as you know, when a court alters an opinion it publishes notices of the modification and it is the judges who are doing the modification. Here there is no indication at all that any panelist made the request and no public record keeping of the change.
Overall, the ADR providers are a law unto themselves. There is no appeal and no accountability. WHile 4(k) allows a post-UDRP legal action, no care was taken when writing the UDRP to investigate whether a proper cause of action exists for such a proceeding in the "Mutual Jurisdiction". There are no standards for panelists (one is a traffic judge with no IP experience at all). Appointments are not statistically random. They create their own supplemental rules. They actively and selectively promote lines of decisions (e.g. WIPO's Panel Guidelines). In the case of NAF they are (with reason) suspected of having inside clerks ghost-write opinions for delivery to the panelists. Now this. We are in a race to the bottom here. While overall I would say that the vast majority of decisions are correctly decided, it is worrying that registrants are forced by contract to participate in such a system. The proper test for a judicial system is not whether it gets it right in the easy cases but rather it has adequate protections to ensure that the difficult ones are treated properly. "
Given that, I thought it appropriate to ask that particular question, so that the providers can let us know whether that ghost-writing is actually happening or not. Frankly, I found it disturbing that it might be happening when I first learned of that possibility back in 2010, and if it's happening, then the rules need to be strengthened.
B] With regards to the "Effect of Court Proceedings" question (page 15 of the redline document), we know that WIPO is aware of court proceedings after UDRPs (see: http://www.wipo.int/amc/en/domains/challenged/ , although they've failed to update that regularly, despite new cases being brought to their attention). Perhaps something similar exists for the URS. If the providers aren't aware of it (and you'd think they would be, given their "suspension' nameservers would be changed by the registry operator to reflect a court proceeding), then the registry operators should be asked (since they'd probably be ordered to change the nameservers back).
C]. With regards to the final question on page 16 (running on to page 17), Sub Teams shouldn't be making "conclusions" on anything (decisions are made by the entire membership, not subteams). As to the merits/scope of that question, it's not been all rainbows and unicorns at NAF. I think it's important to know whether they've actually learned from their past, and adopted changes to reflect the concerns in those serious legal matters. If they haven't, that it's just been "business as usual" for the domain-related cases (after no longer doing consumer credit disputes), then that has policy implications. If we as a PDP simply go with the answers already submitted, that's fine with me, but I was bending over backwards to give them a chance to improve their answers.
Sincerely,
George Kirikos 416-588-0269<tel:4165880269> http://www.leap.com/
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <ariel.liang@icann.org<mailto:ariel.liang@icann.org>> wrote:
Hello everyone,
In preparation for tomorrow’s WG call, please be so kind to find attached the redline document of the proposed questions to URS Providers. The document includes comments/suggestions from WG members, and the input/feedback to these comments/suggestions from the Providers Sub Team (received by the deadline at 12:00 UTC on Tuesday, 24 April).
Please be so kind to review this redline document prior to the call tomorrow (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have commented and provided input!
Best Regards,
Mary, Julie, Ariel, and Berry
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC
Dear RPM PDP WG members,
Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time – calendar invite will be sent via separate email):
Proposed Agenda:
Roll call and updates to Statements of Interest Status of Questions for Practitioners Finalize Questions for Providers Notice of agenda for 02 May meeting
Best regards,
Mary, Julie, Ariel and Berry
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Hi Michael, My email was not simply a re-statement of a previous comment. In addition to restating that the info is “unknowable”, I pointed out that the question: * Is outside of scope (There’s no policy for this at this time) * Is contrary to current policy (As Michael has pointed out, the current requirement is impartiality) * Is not defined (What is an “enforcement” or “respondent” lawyer? Are there other categories?) * Assumes a benefit which has not been evidenced (Are quotas necessary if Examiners are impartial?) * Said result would be: * Costly (Both ICANN & Providers would incur costs to achieve & oversee this “balance”) * Unachievable (filling quotas of Examiners w/ knowledge, skills, who meet other requirements AND who also fit into the category of “enforcement”/”respondent” Just asking this question of Providers implies “balance” is desirable. To conclude, I remain firm that this question should not be asked at this time. Were the working group to discuss, define & pursue such a potential policy, then it would be appropriate to ask Providers to provide the necessary data, but not before then. Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088 From: Nahitchevansky, Georges <ghn@kilpatricktownsend.com> Sent: Friday, April 27, 2018 8:34 PM To: Michael Karanicolas <mkaranicolas@gmail.com>; Cyntia King <cking@modernip.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Michael: I think the fundamental problem with your question is that it assumes that there is a basic policy of having an equal number of panelists that represent complainants and respondents. Neither the URS nor the UDRP require this, and it is not part of the policy. The issue is whether panelists appointed are impartial and whether the providers do anything to make sure that is the case. Your question, on the other hand, suggests that unless you have balance between the two camps there is no impartiality. Do you have concrete evidence in support for that proposition beyond a handful of decisions you might not like. I think Cynthia's points were meant to point out the difficulties with your balance proposition, why your question will not provide meaningful data and why the focus should not be on some alleged concept of artificial balance but should be on the fundamental issue of impartiality. Simply put, are the providers following the policy and appointing panelists that are generally impartial and conflict free. That is the only question that is relevant at this point. If you feel that the policy should be changed then raise it with the entire group and the group can then debate that for however long it takes. Georges From: mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> Sent: April 27, 2018 8:29 PM To: cking@modernip.com <mailto:cking@modernip.com> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Thanks. This seems to be basically a restatement of the objections you raised previously. Some of these issues (such as whether the information is "unknowable") have already been resolved by shifting focus to any policies which may have been put in place. The remainder seems to consist of speculation regarding potential policy proposals which may be suggested based on the findings. Obviously we're not at the point where we're debating any policy connected with this yet (though it's a neat trick to raise a bunch of hypotheticals which nobody has suggested and then complain that the question lends itself supposition and misunderstanding). Let's just get the data first, and leave the conversations about policy responses until afterwards. On Fri, Apr 27, 2018 at 7:14 PM, Cyntia King <cking@modernip.com <mailto:cking@modernip.com> > wrote: Hi Michael & Georges, Thank you for taking the time to consider this question. My comments below: Please find a revised question regarding examiners attached: In selecting examiners, do you have policies in place that are aimed at developing a roster which includes a balance of lawyers who focus on trademark enforcement and those who represent respondents, and would you say these policies have been effective in generating a balance of examiners who represent both sides? In my opinion this question is a problem & should not be included in the survey. The underlying intent of this question - balance of lawyers representing TM owners & Respondents – (1) seems to assume a non-existent guideline, (2) is unknowable & (3) is inappropriate. 1. This is not a policy in the provider contract, so URS Providers should not be accountable for policies/effectiveness. This is a policy issue - as the guideline does not exist, should we create it? 2. As not all Examiners are practicing attorneys (some are academics, judges, policy experts or simply non-practicing), do we intend to set hiring levels for additional classes of Examiners? 3. Whether a lawyer is as “enforcement” or “respondent” is virtually unknowable: a. Providers will not know (and should not make assumptions about) the client makeup of their Examiners. b. As many have observed, Examiners may not be free to characterize the nature of their client’s work; and looking at URS cases filed is not a good way to know the extent of a lawyers work profile. c. I have clients who are both TM-holders & domainers; certainly this can apply to attorneys, as well. d. Further, there may be little/no distinction between TM enforcement & respondents. (E.g. the legal battle between Microsoft & Apple over the term “app store” is a good example of how both sides can be complainant/respondent even on the same issue. Notably both companies had domains associated w/ “app store” as did Salesforce.) 4. This question is inappropriate & presupposes the dubious ‘value’ of “generating a balance of examiners who represent both sides.” a. It is a fallacy that an attorney who happens to have clients in either camp means they cannot be impartial. We expect civil/criminal judges (the vast majority of whom were attorneys before being enrobed) to be impartial. b. The idea of “balance” is fatally flawed: i. Do we really want to inject this kind of partisanship into URS/UDRP decision-making? It’s reasonable to believe that this kind of policy will lead to ‘Examiner-shopping’ by both claimants & respondents. This will not bring the “enforcement” & “respondent” communities closer together, rather this is sure to create new divisions. ii. Using to the reasoning behind the questions, any partisanship in the writing of decisions would lead to even less certainty of outcomes than currently exists, as panelist decisions swing according to their designated camp. iii. What is balance? Is it assumed that the goal is 50/50? What if the total pool of attorneys qualified to fill the role of Examiner are 70% “enforcement” & 30% “respondent”? Do we then impose a policy based on the proportionality of the applicant pool? iv. If it’s determined that “balance” is desirable and we can define what that means, this could be a logistical challenge for Providers to achieve. How do you recruit Examiners that meet this criteria? How long would it take to actually meet such a goal? What is the increased cost to turn away qualified applicants in order to fill the quota of “enforcement” or “respondent” Examiners? v. How will other obligations (like requirements to conduct proceedings in local languages) affect this “balance”? And how burdensome will it be for Providers to try to extend this criteria across other qualifications? In conclusion, this question is fraught w/ potential for supposition, misunderstanding & inaccuracy, and has dubious value. The criteria for Panelists is that they have to be impartial and declare they do not have a conflict. Even if ”balance” were desirable, it is a near-impossibility to create this mythical symmetry of interests. Should the working group decide this is a policy we may wish to pursue, then we would need a much larger discussion on the issue. Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088 <tel:+18182096088> From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > On Behalf Of Nahitchevansky, Georges Sent: Thursday, April 26, 2018 6:52 AM To: Michael Karanicolas <mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> >; McAuley, David via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers My concern with compound questions like this is that they have underlying assumptions that we are not even sure exist (for example that there is a possible imbalance) which make them loaded questions. Moreover, as they are bulky they will likely not generate much relevant information. It seems to me that such an inquiry should be more neutral, focused on what the URS rules specifically require of providers in appointing panelists and inquire as to whether those rules are being followed. From: mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> Sent: April 25, 2018 3:58 PM To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Hi all, Please find a revised question regarding examiners attached: In selecting examiners, do you have policies in place that are aimed at developing a roster which includes a balance of lawyers who focus on trademark enforcement and those who represent respondents, and would you say these policies have been effective in generating a balance of examiners who represent both sides? Thanks, Michael Karanicolas On Wed, Apr 25, 2018 at 1:44 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com> > wrote:
Hi folks,
During today's call, I was asked to propose new wording for some of the questions. Using the page numbering of the April 24th redline version as the starting point:
1. page 6, Q11:
Current Version: "Do you believe the deadline for filing Responses is long enough? Please provide your rationale. If not, what time period would you support, keeping in mind that the URS is supposed to operate with rapidity?"
Proposed Language: "Have you received any feedback from respondents that the time period to respond to a URS complaint is too low?
[as an aside, conceivably, if all we're looking for is facts/data from the provider, rather than their opinion on policy changes, part of this might already be captured implicitly through Q3 on page 5; although, some respondents might have suffered through a short deadline, without asking for an extension]
2. Page 9, Q12(c):
Current Version: "What is the procedure for assigning examiners? (i.e. how large is the pool of examiners, is it randomly assigned; some studies suggest a large number of cases are handled by a relatively small number of potential examiners)"
Proposed Language: "12(c)(i) How large is the pool of URS examiners? 12(c)(ii) Are the examiners randomly assigned, rotated, or assigned using some other procedure (please specify)?"
[aside: 12(c)(ii) seems to have already been responded to partially, based on the earlier wording of the question]
3. Page 13, Q10:
Current Version: "Does the Provider have clerks or other staff that 'ghost-write' decisions for Examiners, before the Examiner has made a Determination independently, that the Examiner can simply sign their name to if they agree with it?"
Proposed Language: [trying to be as diplomatic as I can -- my company does own Diplomacy.com <http://Diplomacy.com> ! :-) ] "To what extent does the Provider supply Examiners with information, analysis or research concerning a Complaint or Response that is not to be found within the Complaint or Response itself? Does the Provider provide drafts or exemplars to the Examiners?"
[aside: the "drafts" and "exemplars" language came from Rebecca's suggestion in the WebEx chat today; I hope I used it appropriately, although I'm welcome to friendly amendments; you'll recall that the "ghost-writing" term came from Paul Keating's comment to the article at:
http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
"In the case of NAF they are (with reason) suspected of having inside clerks ghost-write opinions for delivery to the panelists." (excerpt; full quote has been posted before on this list)
As I noted in the Webex chatroom and orally today, there had been instances in the past where the same gibberish/nonsense appeared verbatim across multiple decisions (in the UDRP) from different panelists
http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udr...
That article had a comment from Brett Lewis that stated (I'll quote it in it's entirety, to not take things out of context):
"NAF decisions are drafted by in-house staffers who present the drafts to Panelists. If the Panelists agree with the staffer's decision, they can simply adopt the decision as their own. If the Panelists disagree, the Panelists have to draft a new decision. There is certainly an incentive to go along with the staff draft, but let's give panelists a little more credit. Most panelists that is.
Staffers undoubtedly cut and paste, as all lawyers do — especially when working for so little money. The real issue is whether the cutting and pasting is a sign of something more sinister — bias. Justice by factory because the trademark holder is always right.
It seems that a number of the cut and paste jobs here actually went in favor of the Respondents. I'd need to see more before I could say this is bias and not just sloppiness. Also, what was being cut and pasted makes a big difference. The UDRP system is far from perfect, and certain panelists are doing more of a hatchet job than they should be, but when they are getting paid a nominal amount to review papers and draft a decision, some degree of recycling is likely to happen. Still, it wouldn't kill NAF to review the decisions before they're published. "
Later on, in response to my question whether WIPO does the same, he wrote (with the title of "Sausage Factory"):
"I don't believe that WIPO does it.
I'm not sure exactly how NAF does it, but they used to have staff members draft the decisions first, then submit them to the Panelists. The Panelists could adopt, modify, or reject the draft decisions. I'm not sure if they do that when there's a three-member Panel, since contested matters are generally more complex and more difficult to decide."
and later:
"Judges often rely on law clerks to assist them to draft decisions. The idea may not be all that different. The only issue would be whether panelists are abdicating their responsibility to be impartial fact finders in lieu of just signing onto a draft decision. I don't believe that most panelists would do that, but for some, it might happen — especially if they have a particular view of respondents that fits the draft."
So, I hope the above helps members of this PDP understand that this issue isn't "coming out nowhere".]
Sincerely,
George Kirikos 416-588-0269 <tel:4165880269> http://www.leap.com/
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com> > wrote:
Thanks for the updated document, and for reflecting many of the comments I had previously submitted:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002890.html
Some additional thoughts:
A] On page 13 of the redline document, Q10 (with regards to the "ghost-writing"), the question was not intended to be "incendiary", as per Justine Chew's comment. The issue had been brought up in the past by Paul Keating (a member of this PDP), in a comment to an article in 2010 on CircleID:
http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
See his comment (#2) on that page, which I'll reproduce in full:
"Jeff, Here are a few of the things that worry me about all of this:
1. No ADR provider is under contract with ICANN. There is thus absolutely no accountability. Given NAF's history with the authorities in connection with their having fixed the credit card arbitration process, one wonders why this situation remains.
2. Concerning statistics (mostly about NAF) have come out regarding repetative appointments of a select few panelists.
3. On prior occasions I have asked for corrections in NAF decisions and have been told that it was not possible, that they would not request panelists to do so, and they objected to any attempt on my part to raise the issue directly with the panelists - even if copying the other side in any correspondence.
4. I can understand the desire not to have matters continued post decision - such would be contrary to the spirit of the UDRP. However, to undertake a change to decisions without publication and an audit function is simply unheard of. In the US as you know, when a court alters an opinion it publishes notices of the modification and it is the judges who are doing the modification. Here there is no indication at all that any panelist made the request and no public record keeping of the change.
Overall, the ADR providers are a law unto themselves. There is no appeal and no accountability. WHile 4(k) allows a post-UDRP legal action, no care was taken when writing the UDRP to investigate whether a proper cause of action exists for such a proceeding in the "Mutual Jurisdiction". There are no standards for panelists (one is a traffic judge with no IP experience at all). Appointments are not statistically random. They create their own supplemental rules. They actively and selectively promote lines of decisions (e.g. WIPO's Panel Guidelines). In the case of NAF they are (with reason) suspected of having inside clerks ghost-write opinions for delivery to the panelists. Now this. We are in a race to the bottom here. While overall I would say that the vast majority of decisions are correctly decided, it is worrying that registrants are forced by contract to participate in such a system. The proper test for a judicial system is not whether it gets it right in the easy cases but rather it has adequate protections to ensure that the difficult ones are treated properly. "
Given that, I thought it appropriate to ask that particular question, so that the providers can let us know whether that ghost-writing is actually happening or not. Frankly, I found it disturbing that it might be happening when I first learned of that possibility back in 2010, and if it's happening, then the rules need to be strengthened.
B] With regards to the "Effect of Court Proceedings" question (page 15 of the redline document), we know that WIPO is aware of court proceedings after UDRPs (see: http://www.wipo.int/amc/en/domains/challenged/ , although they've failed to update that regularly, despite new cases being brought to their attention). Perhaps something similar exists for the URS. If the providers aren't aware of it (and you'd think they would be, given their "suspension' nameservers would be changed by the registry operator to reflect a court proceeding), then the registry operators should be asked (since they'd probably be ordered to change the nameservers back).
C]. With regards to the final question on page 16 (running on to page 17), Sub Teams shouldn't be making "conclusions" on anything (decisions are made by the entire membership, not subteams). As to the merits/scope of that question, it's not been all rainbows and unicorns at NAF. I think it's important to know whether they've actually learned from their past, and adopted changes to reflect the concerns in those serious legal matters. If they haven't, that it's just been "business as usual" for the domain-related cases (after no longer doing consumer credit disputes), then that has policy implications. If we as a PDP simply go with the answers already submitted, that's fine with me, but I was bending over backwards to give them a chance to improve their answers.
Sincerely,
George Kirikos 416-588-0269 <tel:4165880269> http://www.leap.com/
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <ariel.liang@icann.org <mailto:ariel.liang@icann.org> > wrote:
Hello everyone,
In preparation for tomorrow’s WG call, please be so kind to find attached the redline document of the proposed questions to URS Providers. The document includes comments/suggestions from WG members, and the input/feedback to these comments/suggestions from the Providers Sub Team (received by the deadline at 12:00 UTC on Tuesday, 24 April).
Please be so kind to review this redline document prior to the call tomorrow (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have commented and provided input!
Best Regards,
Mary, Julie, Ariel, and Berry
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> > Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC
Dear RPM PDP WG members,
Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time – calendar invite will be sent via separate email):
Proposed Agenda:
Roll call and updates to Statements of Interest Status of Questions for Practitioners Finalize Questions for Providers Notice of agenda for 02 May meeting
Best regards,
Mary, Julie, Ariel and Berry
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participants (2)
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Cyntia King -
Nahitchevansky, Georges