I too am unable to support an approach that veers towards "re-litigating" decided URS cases. Focus should be placed on a 'procedural' review. I had suggested in the chat during the call the use of a 'checklist of sorts' as a basis for making inquiries with the providers in order to assess whether their panelists have applied themselves properly. On the basis that we ought not act as reviewer of decisions (given that we do not investigate the circumstances of each case nor are we an appellate body for such cases), we should aim to get useful feedback from the providers by way of "did your panelist follow our checklist of steps/tasks in adjudicating a complaint?" and if not, then why? The "why" answer could be by way of a choice out of a preset list of reasons to tease out statistical data. While I make no assumptions on the quality of feedback from providers, asking them to provide it would alleviate us of the task of having to dive into all or even a selection of the cases ourselves. And then extend our review to influence the shape of training of panelist as conducted by providers. Justine ----- On 6 February 2018 at 23:05, Paul Keating <Paul@law.es> wrote:

While I also have some concerns about the “re-litigating” issue, there is no need to do so. We are only trying to determine at a relatively high level if the correct standard appears to be applied consistently. I feel a review is appropriate. However any review must be of a statistical meaningful sample. I don’t believe that focussing only on appeals is an appropriate sample from which to make determinations regarding the entire pool of URS cases. Appeals happen because of many things which may or may not be related to the standard having been correctly applied (e.g. Domain value, low cost of appeal, personal vendettas, etc).

And, I believe that the review should be undertaken with a request for the underlying complaint and response (if any). These documents are needed so as to ensure that the orders do in fact correctly apply the standard to the actual evidence submitted. Obviously we need to provide appropriate protection for the documents at issue with gated access to a limited group who will retain the documents in confidence.

Paul

From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of "BECKHAM, Brian" <brian.beckham@wipo.int> Date: Tuesday, February 6, 2018 at 3:18 PM To: "Tushnet, Rebecca" <rtushnet@law.harvard.edu>, Julie Bisland < julie.bisland@icann.org>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Cc: "gnso-secs@icann.org" <gnso-secs@icann.org>

Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018

Thanks Rebecca,

On this perhaps somewhat semantic point, I tend to agree, and I could be wrong but I think what is actually meant is a “substantive” review (which as was noted by several people on the call, risks re-litigating cases without the benefit of the pleadings – and drawing policy implications therefrom). Below I was merely quoting from the transcript.

In terms of the appeals/lack thereof, with respect, I think it is pretty well articulated below (“to see if registrants themselves believe the standard is being misapplied”).

Another perhaps more colloquial way of putting it would be to say, if there are misgivings about the standard being applied in the URS – and to your point about drawing policy inferences form the rate of default, and especially when it literally costs *nothing** to respond – are people putting their money where their mouth is, so to speak?

** Except in consolidated cases against 15 or more domain names, which I think may not yet have even occurred.*

The point was that we are in somewhat of a chicken-and-egg scenario, so my suggestion was merely intended to propose a more rational and focused first pass to review select cases, if indeed it is even the collective consensus of the WG to do so (which so far seems far from clear).

If a first pass at such a narrower dataset reveals it would be beneficial to expand the effort, the WG could take it from there.

Best regards,

Brian

*From:* Tushnet, Rebecca [mailto:rtushnet@law.harvard.edu <rtushnet@law.harvard.edu>] *Sent:* Tuesday, February 06, 2018 2:26 PM *To:* BECKHAM, Brian; Julie Bisland; gnso-rpm-wg@icann.org *Cc:* gnso-secs@icann.org *Subject:* Re: Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018

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

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

Rebecca Tushnet

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

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

Thanks Terri, Julie,

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

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

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

Brian

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

Dear all,

Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_u...>

*MP3: *https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3 <https://urldefense.proofpoint.com/v2/url?u=https-3A__audio.icann.org_gnso_gn...>

*Adobe Connect recording: * https://participate.icann.org/p6mww2tis6b/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__participate.icann.org_p...>

The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...>

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

Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_g...>

Main wiki page for the working group: https://community.icann.org/x/wCWAAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_w...>

Thank you.

Kind regards,

Terri

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