Comments filed today by American Red Cross

[Ron Wickersham]

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On Thu, 22 Jul 2010, tlhackque wrote:

> I know we all despise the spammers and fraud-mongers.=C2=A0 And removing =
and=20
prosecuting them will all due haste should certainly be a goal.=C2=A0


However, let's also remember that many individuals register domain names.=
=C2=A0=20
Perhaps their family name - or their pet's name - or... happens to be a key=
word=20
in a advertising campaign in a language they don't know for a product they'=
ve=20
never heard of on the other side of the globe that they've never visited.=
=C2=A0 And=20
that individual happens to take a vacation when Megacorp's legal department=
=20
decides to make an issue of it.=C2=A0


I don't think 20 days is unreasonable - in fact, I don't think 30 days is=
=20
unreasonable if I=C2=A0had to respond to such a complaint.=C2=A0 I certainl=
y don't have=20
your organization's legal resources.=C2=A0 And I do - occasionally - take v=
acations=20
without reading e-mail.

Of course, I'd also like the spammers off the network in a microsecond or l=
ess.=C2=A0=20
But =C2=A0let's not amplify the leverage that the large/deep pockets=C2=A0h=
ave over the=20
individuals.=C2=A0 Let's not assume that only the guilty will get charged.

And let's remember that "non-commercial" doesn't=C2=A0just mean large non-p=
rofit=20
groups.=C2=A0 It's supposed to include individuals who who are registrants =
- and are=20
not engaged in fraud or 'problematic' use.


thank you for adding this comment.   i concurr and as a member of the
individual section (as well as a member of very small non-profit orgs that
have no legal department) the issues are quite different that what i imagin=
e
the interests of larger organizations (be they non-profit or commercial).

for an individual or member of a small org. it's hard to imagine a
curcumstance when we would be filing a complaint, although presumeably
we would have the same right as a large org to initiate a complaint process=
=2E
still, the rights to trademark (as known in the USA) appear to be ignored
by ICANN processes, and only nationally registrered (and not state register=
ed
or equally legal non-registered federal trademarks are recognized), and=20
even more unfortunately non-trademark use of a string of characters utilize=
d
in a manner that doesn't even mention the registered trademark holder's=20
organization or products or services is held by ICANN's rules to be
sufficiently offensive to the registered trademark holder that the non-
infringing use can be terminated.

may i offer a suggestion that might serve the large organizations interest
in getting real abuse terminated rapidly, but offer fairness to the small
organization or individual that doesn't have the resources (either legal,
financial, or even decision making) to respond rapidly?

the counter side to short time to respond is a long time to appeal.  for
an individual or small organization, without hiring consultants and legal
professionals, research and collection of points to make a legitimate=20
appeal of a decision unfavorable to them can substitue for large sums of
money.   also an individual may have other factors, such as employment
duties, responsibilites to care for an ill family member, and so forth,
that make them unable to effectively respond in a short time to an action
to take away their domain name.  and if they decide to hire a lawyer they
may need time to reallocate or collect financial resources while an
opponent large organization has legal council on staff, ready for action
and already on the payroll.

therefore i propose that a decision unfavorable to an individual or small
organization be appealable for a year or at least 6 months.

the interests of the party bringing the complaint is recognized since=20
during that time, the domain (and the content deemed offensive to the=20
complaintant) would be suspended.

but the interests of the indiviual or small organization to gather a
meaningful presentation of their position would be preserved by giving
them time to cover material unfamiliar to them, to research the literature
for information relevant to their position, to search for other decisions
supportive of their interests, and if necessary to gather financial
resources (or even the time to find pro-bono representation).

would not this balance the interests of "rapid" removal of real bad actors
while preserving fairness for those unjustly accused of being a bad actor?

-ron
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