Redline Document: Proposed Questions to URS Providers
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> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org" <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: 1. Roll call and updates to Statements of Interest 2. Status of Questions for Practitioners 3. Finalize Questions for Providers 4. Notice of agenda for 02 May meeting Best regards, Mary, Julie, Ariel and Berry
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 http://www.leap.com/ On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org" <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
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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! :-) ] "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 http://www.leap.com/ On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <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 http://www.leap.com/
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org" <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
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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> 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! :-) ] "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 http://www.leap.com/
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <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 http://www.leap.com/
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org" <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
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Michael, The Rules, and URS, respectively provide that examiners should be (a) “impartial and independent” and (b) “should have demonstrable relevant legal background, such as in trademark law”. Perhaps it would make more sense to reframe your question by reference to those previously-agreed provisions? Brian -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael Karanicolas Sent: Wednesday, April 25, 2018 9:58 PM To: 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! :-) ] "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_in
to_udrp_decisions/
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
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
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
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg [Colorful silhouette of a woman’s head, representing the theme of the World IP Day campaign.]<http://www.wipo.int/ip-outreach/en/ipday/index.html?utm_source=wipomail&utm_...> Powering change: Women in innovation and creativity World Intellectual Property Day 2018 April 26 wipo.int/ipday<http://www.wipo.int/ip-outreach/en/ipday/index.html?utm_source=wipomail&utm_...> #worldipday World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using.
Brian, I do not honestly see any inconsistency between the question and the standards you noted in your email. If you do can you perhaps explain your position further? I have submitted substantially similar questions which include an inquiry as to how the panelists are actually selected but the ADR provider. I know this is close to home for you given your position with WIPO. However, I ask that you try to put that aside so that the inquiries can be made. Thanks Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of "BECKHAM, Brian" <brian.beckham@wipo.int> Date: Thursday, April 26, 2018 at 12:22 PM To: Michael Karanicolas <mkaranicolas@gmail.com>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers
Michael,
The Rules, and URS, respectively provide that examiners should be (a) ³impartial and independent² and (b) ³should have demonstrable relevant legal background, such as in trademark law².
Perhaps it would make more sense to reframe your question by reference to those previously-agreed provisions?
Brian
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael Karanicolas Sent: Wednesday, April 25, 2018 9:58 PM To: 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! :-) ] "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/ <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_in <http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_in> to_udrp_decisions/
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 http://www.leap.com/ <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 <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 <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/ <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 http://www.leap.com/ <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 tomorrow¹s 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 > > > > > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
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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 Sent: April 25, 2018 3:58 PM To: 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> 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! :-) ] "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 http://www.leap.com/
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <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 http://www.leap.com/
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org" <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
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Hi, I don't see any need to add in specific references to the URS or the rules - Georges' is already objecting that it's too bulky, so I don't think adding in more background would help that. Best to just keep it focused on the query. I'm fine with the staff's proposed rewrite, so long as we add "Would you say these steps have been effective in generating a balance of Examiners who represent both sides?" onto the end. If we're asking about whether these policies exist, surely it's relevant to ask whether they've been working. Best, Michael
On Thu, Apr 26, 2018 at 8:52 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote: 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 Sent: April 25, 2018 3:58 PM To: 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> 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! :-) ] "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 http://www.leap.com/
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <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 http://www.leap.com/
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org" <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
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
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 From: gnso-rpm-wg <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>; McAuley, David via gnso-rpm-wg <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! :-) ] "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 p_decisions/
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 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 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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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> 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: 1. Providers will not know (and should not make assumptions about) the client makeup of their Examiners. 2. 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. 3. I have clients who are both TM-holders & domainers; certainly this can apply to attorneys, as well. 4. 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.” 1. 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. 2. 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
[image: MIP Composite (Email)]
*From:* gnso-rpm-wg <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>; McAuley, David via gnso-rpm-wg <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
*Sent:* April 25, 2018 3:58 PM
*To:* 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> 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! :-) ] "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_udrp_decisions/
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 http://www.leap.com/
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <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 http://www.leap.com/
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg@icann.org" <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 George, Thanks for providing your proposed revisions. My comments below: 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]. [Comment: We’re asking the Providers for their expert opinion on the processes they engage in daily, so the original question should remain. I see no reason, tho, why we cannot also ask if they’ve received feedback from respondents.] PROPOSED LANGUAGE: "Do you believe the deadline for filing Responses is long enough? (Please provide your rationale and any feedback from respondents that the time period is insufficient.) If not, what time period would you support, keeping in mind that the URS is supposed to operate with rapidity? 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] [Comment: I like George’s new language.] 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! :-) ] "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?" [Comment: “To what extent” implies they do this. I would neutralize the question a bit.] PROPOSED LANGUAGE: Do you provide Examiners w/ templates, preferred language or any other standardized material to be used in the writing of decisions? If so, please provide the language, templates or materials (or links to these). Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088 -----Original Message----- From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of George Kirikos Sent: Wednesday, April 25, 2018 11:45 AM To: Ariel Liang <ariel.liang@icann.org> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers 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! :-) ] "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/> 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...> 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 <http://www.leap.com/> http://www.leap.com/ On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos < <mailto:icann@leap.com> 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> 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/> 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/> 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
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang < <mailto:ariel.liang@icann.org> 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 < <mailto:gnso-rpm-wg-bounces@icann.org> gnso-rpm-wg-bounces@icann.org> on behalf of Julie
Hedlund < <mailto:julie.hedlund@icann.org> julie.hedlund@icann.org>
Date: Friday, April 20, 2018 at 2:43 PM
To: " <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org" < <mailto:gnso-rpm-wg@icann.org> 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
_______________________________________________
gnso-rpm-wg mailing list
<mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org
<https://mm.icann.org/mailman/listinfo/gnso-rpm-wg> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi folks, The proposed modification of my revised version to Q10 on page 13 does far more than simply "neutralize it" -- it narrows the question far too much. As per the previously quoted comments, it's allegedly far more than just "templates" or "preferred language" or "standardized material" that's at issue -- it's *non-standard* customized material for each decision (i.e. the ghost-written decisions). If the objectionable language is simply "To what extent" (which I don't see a problem with myself), it can be rephrased as (separating them out, to avoid the multiple questions: New Proposed Language: "Q10 (i) 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? If so, please explain. Q10 (ii) Does the Provider provide drafts or exemplars to the Examiners? If so, please explain." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Apr 27, 2018 at 12:54 PM, Cyntia King <cking@modernip.com> wrote:
Hi George,
Thanks for providing your proposed revisions. My comments below:
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].
[*Comment:* We’re asking the Providers for their expert opinion on the processes they engage in daily, so the original question should remain. I see no reason, tho, why we cannot also ask if they’ve received feedback from respondents.]
*PROPOSED LANGUAGE:* "Do you believe the deadline for filing Responses is long enough? (Please provide your rationale and any feedback from respondents that the time period is insufficient.) If not, what time period would you support, keeping in mind that the URS is supposed to operate with rapidity?
1. 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]
[Comment: I like George’s new language.]
1. 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! :-) ] "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?"
[Comment: “To what extent” implies they do this. I would neutralize the question a bit.]
*PROPOSED LANGUAGE:* Do you provide Examiners w/ templates, preferred language or any other standardized material to be used in the writing of decisions? If so, please provide the language, templates or materials (or links to these).
*Cyntia King*
E: cking@modernip
O: +1 81-ModernIP
C: +1 818.209.6088
[image: MIP Composite (Email)]
-----Original Message----- From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of George Kirikos Sent: Wednesday, April 25, 2018 11:45 AM To: Ariel Liang <ariel.liang@icann.org> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers
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! :-) ] "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_udrp_decisions/
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
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <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
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie
Hedlund <julie.hedlund@icann.org>
Date: Friday, April 20, 2018 at 2:43 PM
To: "gnso-rpm-wg@icann.org" <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
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org
Well written questions which I support. Sincerely, Paul Keating, Esq.
On Apr 28, 2018, at 1:16 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
The proposed modification of my revised version to Q10 on page 13 does far more than simply "neutralize it" -- it narrows the question far too much. As per the previously quoted comments, it's allegedly far more than just "templates" or "preferred language" or "standardized material" that's at issue -- it's *non-standard* customized material for each decision (i.e. the ghost-written decisions).
If the objectionable language is simply "To what extent" (which I don't see a problem with myself), it can be rephrased as (separating them out, to avoid the multiple questions:
New Proposed Language:
"Q10 (i) 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? If so, please explain. Q10 (ii) Does the Provider provide drafts or exemplars to the Examiners? If so, please explain."
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Fri, Apr 27, 2018 at 12:54 PM, Cyntia King <cking@modernip.com> wrote: Hi George,
Thanks for providing your proposed revisions. My comments below:
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].
[Comment: We’re asking the Providers for their expert opinion on the processes they engage in daily, so the original question should remain. I see no reason, tho, why we cannot also ask if they’ve received feedback from respondents.]
PROPOSED LANGUAGE: "Do you believe the deadline for filing Responses is long enough? (Please provide your rationale and any feedback from respondents that the time period is insufficient.) If not, what time period would you support, keeping in mind that the URS is supposed to operate with rapidity?
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]
[Comment: I like George’s new language.]
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! :-) ] "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?"
[Comment: “To what extent” implies they do this. I would neutralize the question a bit.]
PROPOSED LANGUAGE: Do you provide Examiners w/ templates, preferred language or any other standardized material to be used in the writing of decisions? If so, please provide the language, templates or materials (or links to these).
Cyntia King
E: cking@modernip
O: +1 81-ModernIP
C: +1 818.209.6088
-----Original Message----- From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of George Kirikos Sent: Wednesday, April 25, 2018 11:45 AM To: Ariel Liang <ariel.liang@icann.org>
Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers
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! :-) ] "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
On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <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
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <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> on behalf of Julie
Hedlund <julie.hedlund@icann.org>
Date: Friday, April 20, 2018 at 2:43 PM
To: "gnso-rpm-wg@icann.org" <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
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi George, Thanks for clarifying. I’m onboard w/ your most recent draft of this question. Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088 From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of George Kirikos Sent: Saturday, April 28, 2018 6:16 AM To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Hi folks, The proposed modification of my revised version to Q10 on page 13 does far more than simply "neutralize it" -- it narrows the question far too much. As per the previously quoted comments, it's allegedly far more than just "templates" or "preferred language" or "standardized material" that's at issue -- it's *non-standard* customized material for each decision (i.e. the ghost-written decisions). If the objectionable language is simply "To what extent" (which I don't see a problem with myself), it can be rephrased as (separating them out, to avoid the multiple questions: New Proposed Language: "Q10 (i) 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? If so, please explain. Q10 (ii) Does the Provider provide drafts or exemplars to the Examiners? If so, please explain." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Apr 27, 2018 at 12:54 PM, Cyntia King <cking@modernip.com <mailto:cking@modernip.com> > wrote: Hi George, Thanks for providing your proposed revisions. My comments below: 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]. [Comment: We’re asking the Providers for their expert opinion on the processes they engage in daily, so the original question should remain. I see no reason, tho, why we cannot also ask if they’ve received feedback from respondents.] PROPOSED LANGUAGE: "Do you believe the deadline for filing Responses is long enough? (Please provide your rationale and any feedback from respondents that the time period is insufficient.) If not, what time period would you support, keeping in mind that the URS is supposed to operate with rapidity? 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] [Comment: I like George’s new language.] 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! :-) ] "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?" [Comment: “To what extent” implies they do this. I would neutralize the question a bit.] PROPOSED LANGUAGE: Do you provide Examiners w/ templates, preferred language or any other standardized material to be used in the writing of decisions? If so, please provide the language, templates or materials (or links to these). Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088 -----Original Message----- From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > On Behalf Of George Kirikos Sent: Wednesday, April 25, 2018 11:45 AM To: Ariel Liang <ariel.liang@icann.org <mailto:ariel.liang@icann.org> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers 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! :-) ] "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/> 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...> 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 <http://www.leap.com/> http://www.leap.com/ On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos < <mailto:icann@leap.com> 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> 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/> 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/> 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
On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang < <mailto:ariel.liang@icann.org> 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 < <mailto:gnso-rpm-wg-bounces@icann.org> gnso-rpm-wg-bounces@icann.org> on behalf of Julie
Hedlund < <mailto:julie.hedlund@icann.org> julie.hedlund@icann.org>
Date: Friday, April 20, 2018 at 2:43 PM
To: " <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org" < <mailto:gnso-rpm-wg@icann.org> 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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_______________________________________________ gnso-rpm-wg mailing list <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
WG Members: Given our crowded agenda for meetings over the next few weeks, and our objective of having answers back from Providers and Practitioners prior to ICANN 62 in Panama June 25-28), we plan to complete our discussion of Providers’ questions on tomorrow’s call and will be pushing hard to do so. We will keep the questions document open for a few days following the call for final input and edits. That means we will not be reciting and discussing every question of the 17 page redline but focusing on those questions that are new or modified, or that WG members have specific questions or concerns about. Kathy shall chair the call. Therefore, for the sake of efficiency, you are strongly encouraged to review the redline document in advance of the call so that you are ready to engage in a fully informed manner. If you will be unable to join the call but have specific questions, concerns or suggestions about any question(s) please post those on the email list and staff will aggregate them and raise them at the appropriate point. Regards, Philip & Kathy Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Ariel Liang Sent: Tuesday, April 24, 2018 11:33 AM To: gnso-rpm-wg@icann.org Subject: [EXTERNAL] [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers 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: 1. Roll call and updates to Statements of Interest 2. Status of Questions for Practitioners 3. Finalize Questions for Providers 4. Notice of agenda for 02 May meeting Best regards, Mary, Julie, Ariel and Berry
participants (8)
-
Ariel Liang -
BECKHAM, Brian -
Corwin, Philip -
Cyntia King -
George Kirikos -
Michael Karanicolas -
Nahitchevansky, Georges -
Paul Keating