Comments filed today by American Red Cross

Fri Jul 23 01:22:17 CEST 2010

And let’s remember that individuals that register domain names should be 
responsible for their contractual obligations, right?  

>> Yes, absolutely.  And those obligations have to be reasonable for the parties 
>>involved.  Few individuals can be expected to spend USD 50K+ on a world-wide 
>>trademark search, for example.

However, we have to find a way to balance the interests - helping those trying 
to quickly take down domains registered by bad actors for serious cases and 
helping individual registrants understand the nature of the playing field when 
they enter this commercial arena.  

>> Agree - except I wish you'd omitted 'commercial'

Because honestly, one could argue that obtaining a domain name is a commercial 
transaction, even when used to connect family members.  

>> By that standard, a consumer buying a nameplate for her house is a a commercial 
>>transaction.  But we have different standards for what it is reasonable for a 
>>consumer to do.  We have consumer protection laws, and as you know, contract law 
>>(at least in the US) has very different standards for consumer contracts and 
>>commercial contracts - even when the same product or service is purchased.  So I 
>>am inclined to argue that this is a *consumer* transaction when an individual 
>>(not acting for some other entity)is the purchaser.

And when individuals engage in commercial activities, like buying keywords to 
help people find their domain, maybe they should carefully consider the rules of 
the road.     

>> Yes, but the standard of what's reasonable is different.  What's reasonable 
>>when one has a few dollars to connect a family or run a community service is 
>>very different from what's reasonable when you have millions of dollars at your 
>>disposal.  
>>

>> The internet is no longer simply a commercial space.  There is a large 
>>population of consumers doing things that in the past, only large institutions 
>>could do.  Whether its publishing/blogging that so many do, or running an 
>>international private network for my family - I have more bandwidth in my house 
>>today than I had in my engineering lab 10 years ago - the internet is not a 
>>network of mini/mainframe computers costing USD 10K, 100K, 1M.  Most of my DNS 
>>servers cost under USD 100.  We need to distinguish commercial from 
>>non-commercial use of the network and reason about what appropriate rights and 
>>responsibilities are -- isn't that what this group is about?

>> For the record, I'm not against big institutions - I spent over 30 years 
>>working in them, and I appreciate the amount of good that can be done when one 
>>has significant resources at one's disposal.   I'd like to think that I did my 
>>share of good - as well as vigorously defending our ability to control our 
>>resources, including intellectual property.  And I'd certainly like to get rid 
>>of the bad actors.

>> One might make a case for a TLD for individuals with more relaxed standards.  
>>There have been some attempts to cater to individuals - e.g. .name, .tel, etc - 
>>but these are limited and would not support the full range of services that some 
>>of us need.   And trademark owners need to be protective everywhere.  But maybe 
>>the balance of consumer protections could be different -- if we could keep the 
>>bad actors from hiding behind it.

>> It is a difficult problem.  I don't think we're on radically different sides of 
>>the issues.  But I am trying to provide some perspective from the point of view 
>>of an individual registrant.  It is our network too.

---------------------------------------------------------
This communication may not represent my employer's views,
if any, on the matters discussed.

________________________________
From: Debra Hughes <HughesDeb at USA.REDCROSS.ORG>
To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Sent: Thu, July 22, 2010 6:02:58 PM
Subject: Re: Comments filed today by American Red Cross

And let’s remember that individuals that register domain names should be 
responsible for their contractual obligations, right?  To be clear, I am not 
minimizing that an organization may have more resources than a person who 
registers a domain name.  However, we have to find a way to balance the 
interests - helping those trying to quickly take down domains registered by bad 
actors for serious cases and helping individual registrants understand the 
nature of the playing field when they enter this commercial arena.  Because 
honestly, one could argue that obtaining a domain name is a commercial 
transaction, even when used to connect family members.  And when individuals 
engage in commercial activities, like buying keywords to help people find their 
domain, maybe they should carefully consider the rules of the road.    

Debra Y. HugheslSenior Counsel
American Red Cross
Office of the General Counsel 
2025 E Street, NW 
Washington, D.C. 20006 
Phone: (202) 303-5356 
Fax: (202) 303-0143
HughesDeb at usa.redcross.org 

________________________________

From:NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of 
tlhackque
Sent: Thursday, July 22, 2010 3:21 PM
To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: Comments filed today by American Red Cross

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

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

I don't think 20 days is unreasonable - in fact, I don't think 30 days is 
unreasonable if I had to respond to such a complaint.  I certainly don't have 
your organization's legal resources.  And I do - occasionally - take vacations 
without reading e-mail.

Of course, I'd also like the spammers off the network in a microsecond or less.  
But  let's not amplify the leverage that the large/deep pockets have over the 
individuals.  Let's not assume that only the guilty will get charged.

And let's remember that "non-commercial" doesn't just mean large non-profit 
groups.  It's supposed to include individuals who who are registrants - and are 
not engaged in fraud or 'problematic' use.

---------------------------------------------------------
This communication may not represent my employer's views,
if any, on the matters discussed. 

________________________________

From:Debra Hughes <HughesDeb at USA.REDCROSS.ORG>
To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Sent: Thu, July 22, 2010 1:43:04 PM
Subject: Re: Comments filed today by American Red Cross
Konstantinos,

Regarding rapid decision making, in my comments, we offered the following 
suggestion:

In addition, the examiner should be required to render a decision within seven 
(7) business days, rather than being allowed up to 14 days, with a goal and best 
practice of providing the Answer within three (3) days.  Once again, the use of 
a form Decision should greatly increase the ability of examiners to provide 
their Decisions in a rapid manner.

Regarding your comments about 14 days to respond, let’s also remember the 
difference between a “user” of the Internet and a “Registrant”.  Your mention of 
users below is perhaps misplaced.  We are talking about Registrants of domain 
names and not end users of the DNS.  A Registrant had access to the Internet 
when he/she registered the domain name (either personally or through another 
party acting on his/her behalf).   The Registrant had “all the time in the 
world” to decide to register its problematic domain name for a problematic use 
before he/she actually registered the domain – long before the Complaint was 
aware.  The Registrant also had the ability to access the Internet to engage in 
fraudulent activity – he/she had plenty of time to consider and prepare the 
content and use of the domain name.  It’s a bit one-sided to argue that if an 
organization sees a problematic use we should agree to 20 days for the 
Registrant to prepare a response for the reasons you mention below.  Also, a 
form for the Answer could minimize the need for an attorney for Answers, but if 
not, Registrants should know that the act of registering a domain name has 
potential consequences.  A Registrant willingly enters a contractual 
relationship with the registrar when he/she decides to register a domain name.  

On a related note, I think new gTLD and other outreach efforts to those in the 
developing and emerging regions could offer a primer to the community about the 
domain registration process – explaining the contractual relationship between 
the registrar and the registrant.  Guidance could be given to the community 
about these processes, obligations, what a Registrant “agrees to” when registers 
a domain name and an explanation of the potential consequences.  Perhaps those 
that offer pro bono legal services can talk about the types of assistance they 
can offer Registrants in these scenarios.  These are ideas I am sharing with 
those involved with outreach activities within ICANN.  Perhaps there are other 
ideas NCUC/NCSG members have to help Registrants understand and the “business” 
behind the registration process.

Debbie

Debra Y. HugheslSenior Counsel
American Red Cross
Office of the General Counsel 
2025 E Street, NW 
Washington, D.C. 20006 
Phone: (202) 303-5356 
Fax: (202) 303-0143
HughesDeb at usa.redcross.org 

________________________________

From:Konstantinos Komaitis [mailto:k.komaitis at strath.ac.uk] 
Sent: Thursday, July 22, 2010 12:21 PM
To: Hughes, Debra Y.; NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: RE: Comments filed today by American Red Cross

Just one point I would like to clarify being involved and having researched on 
both the UDRP and the URS. In a system of adjudication, the term ‘rapid’ does 
not really refer to the speed leading up to the adjudication process; rather, it 
refers to the ‘rapidness’ of the decision-making process. And, the 
recommendation of the STI has been consistent with this, instructing panels to 
submit their decisions within 3 business days. 

This distinction in determining ‘rapidness’ is crucial for the adjudication 
process and in Brussels as well as from the comments it appears that the 
trademark community misinterprets what we mean by rapidness. No system is fair 
if it is rapid during the discovery process or in any other process leading up 
to adjudication.

And, 14 days is not really fair. Again, just like the problems with the UDRP, 
the complainant has all the time in the world to compile, submit and file the 
complaint. The Respondent is given only 14 days? What about legitimate 
Registrants located in parts of the world with limited Internet access? For many 
users the Internet is still not a given. What about legitimate Registrants whose 
first language is not English? What about legitimate Registrants that have to 
find a lawyer to compile the Response on their behalf? All these are legitimate 
reasons for the deadline to be 20 days – at least that is how I feel and that is 
what 10 years of UDRP experience teaches us.

KK

Dr. Konstantinos Komaitis,
Law Lecturer,
Director of Postgraduate Instructional Courses
University of Strathclyde,
The Law School,
The Lord Hope Building,
141 St. James Road,
Glasgow, G4 0LT
UK
tel: +44 (0)141 548 4306
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765

Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: http://domainnamelaw.ning.com/

From:NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Debra 
Hughes
Sent: Thursday, July 22, 2010 4:25 PM
To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: Comments filed today by American Red Cross

Thanks, Rafik.  The work of the JAS WG is very important and of course related, 
in part, to the outreach work we are both involved with on the OSC Constituency 
and Stakeholder Group Operations Work Team.

About the thin v. think comment below: In a thin registry (.COM is an example), 
the Whois records includes limited data - only enough to identify the registrar 
of the domain name (registrar name, registration status, creation/expiration 
dates).  So, for a problematic .COM domain, obtaining the contact details for 
the registrant is a two (or three or four or five…) step process for research.  

For example,
Step 1: Look up the domain name using a Whois service of choice. Find out 
registrar.
Step 2: Then, go to that particular registrar’s Whois service to obtain the 
publicly available Registrant’s contact information. 

Step 3:  If the bad actor is using a privacy/proxy service, I have to keep my 
fingers crossed that the privacy/proxy service has a fair (and hopefully easy 
and inexpensive) system for me to request the concealed contact information for 
the Registrant. Hopefully they will follow their policy!
Step 4:  Proxy/privacy service does not have a system to request underlying 
contact information or ignores request, I have to decide whether it makes sense 
to spend donor dollars to get a subpoena, if applicable or escalate the request 
for contact information.

A record from a registry operating a thick Whois server (like .ORG) includes the 
registrant’s contact information, admin/tech and the registrar info.  It 
eliminates having to go two places to get the publicly available Registrant 
contact info, which is important for not for profit organization that are often 
asked to do more with less resources.  The other benefit of a thick registry is 
when a registrar goes out of business, the thick registry will retain the 
registrant info (except if the registrant used a privacy/proxy service).

About the URS, I think fairness is important – fairness to the registrant and a 
fair procedure for an organization that is being harmed by a bad actor from a 
"clear cut” instance” of trademark abuse.”  I think the suggestion of giving 
Registrants 14 days, rather than 20 days to file an Answer is fair, not abusive 
and consistent with the intent of “rapid” suspension.  Also, if ICANN provides a 
form complaint and reduces the word/page limit, it is possible a Registrant, who 
is inexperienced with such actions, might feel less intimidated.  Also, the 
suggestion of a form Answer can help inexperienced Registrants prepare 
responses.

Debbie

Debra Y. HugheslSenior Counsel
American Red Cross
Office of the General Counsel 
2025 E Street, NW 
Washington, D.C. 20006 
Phone: (202) 303-5356 
Fax: (202) 303-0143
HughesDeb at usa.redcross.org 

________________________________

From:NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Rafik 
Dammak
Sent: Thursday, July 22, 2010 6:24 AM
To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: Comments filed today by American Red Cross

Hello Debbie,

Thanks for comments sent to the JAS WG, the document is shared within the WG 
members.

I was little bit puzzled by the mention of  supporting thick whois as suggested 
by IRT, even there are some people arguing for that , I think that a balanced 
solution for common ground of different interests is mandatory with safeguard 
for privacy. also about URS, maybe we can assume that there is need make it 
simple and short, how we can prevent abuse of using URS for this supposed 
mechanism to prevent abuse?
Regards

Rafik
2010/7/22 Milton L Mueller <mueller at syr.edu>
Deb:
Glad to see that Red Cross is endorsing the idea that nonprofits might use a new 
gTLD for "internal business purposes under a model that is different from a 
commercial, profit-driven new gTLD"

________________________________

From:NCSG-NCUC [NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Debra Hughes 
[HughesDeb at USA.REDCROSS.ORG]
Sent: Wednesday, July 21, 2010 8:21 PM
To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: [NCSG-NCUC-DISCUSS] Comments filed today by American Red Cross
All,
Attached are comments filedby the American RedCrosson the Joint SO/AC Working 
Group Report and on DAG4.
<<American Red Cross Comments on Joint SO-AC WG Report - 07212010.pdf>> 
<<American Red Cross Comments on DAGv4 - 07212010.pdf>> 

Thanks,
Debbie
Debra Y. Hughesl Senior Counsel
American Red Cross
Office of the General Counsel 
2025 E Street, NW 
Washington, D.C. 20006 
Phone: (202) 303-5356 
Fax: (202) 303-0143
HughesDeb at usa.redcross.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncuc.org/pipermail/ncuc-discuss/attachments/20100722/7145354e/attachment.html>