Comments filed today by American Red Cross
Debra Hughes
HughesDeb at USA.REDCROSS.ORG
Fri Jul 23 01:42:56 CEST 2010
Sorry for formatting...doing this while at a meeting:
1) And many NGOs don't have the money for country based, let alone world-wide tm searches :-)! Or to even file tm registrations to protect their org's name. Or to spend $1500 to file a UDRP. Or to hire outside counsel when your IP team is ½ a person!
2) I don't understand how acquiring a domain name is not a commercial transaction. Even if we agree say it's a "consumer transaction", the registrant agrees to certain obligations. Whether you use the internet for non-commercial purposes or to sell widgets, I think it important to remember that. Just as there are consumer protection laws, aren't consumers expected to have a certain level of responsibility?
3) As I stated in my comment and as I have been saying since I joined Red Cross, it would be great if ICANN recognized the differences between how domains are used when setting policy. Why can't the pricing, rules, processes be different for those that are not using the DNS to sell widgets or make a profit? However ICANN's domain registration (its "remit") vs. domain name use (what it claims is outside of its remit) debate clouds that issue sometimes.
4) Maybe the day will come for the opportunity for gTLDs for individuals with different standards - would be promising. I am hoping for the same thing for entities that can establish they would use a new gTLD for a non-profit motive. we shall see.
________________________________
From: tlhackque [mailto:tlhackque at yahoo.com]
Sent: Thursday, July 22, 2010 7:22 PM
To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Cc: Hughes, Debra Y.
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?
>> 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. Hughes l 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 <mailto: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. Hughes l 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 <mailto: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. Hughes l 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 <mailto: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 filed by the American Red Cross on 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. Hughes l 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 <mailto:HughesDeb at usa.redcross.org>
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