Comments filed today by American Red Cross

[Mary Wong]

It's good to see healthy, reasoned and informative public debates on our
list!
 
I agree that the "consumer" angle is an important one (hence the
interest amongst many of our members and several Councillors on moving a
consumer agenda forward in ICANN), and it is a pity that ICANN does, for
the most part, adopt a "one size fits all" model that lumps individuals,
small enterprises and large organizations into fairly crude, general
categories (e.g. "commercial" vs "non commercial"). This is one issue
that NCSG may wish, either via individual members or collectively, to
bring up in future comment periods and Policy Development Processes
(PDPs).
 
In the context of this particular debate, I think one more thing to
bear in mind is the recommendations for defaults, i.e., when and how a
respondent can reinstate a complaint (even when that complaint has been
initially resolved on a default basis for lack of response within the
prescribed period (20 days or whatever).) If a respondent can fully
reinstate - and revive - the original complaint without additional cost
or legal consequence, that should go some way towards remedying the "I
went on vacation and couldn't check my email" problem.
 
In addition, the fact that, unlike the UDRP, most URS-related
recommendations do NOT provide for transfer of the domain name to the
"winning" complainant (via default or otherwise) is also something to
bear in mind in relation to achieving a fair and balanced system that
protects both legitimate registrants and prudent rights-holders.
 
We may disagree as to the exact mechanism or balance that is necessary,
but it seems to be useful to look at all the recommendations - ranging
from the original IRT proposals to the STI suggestions and the form
those took in DAGv4 - and then deciding which (if any) comes the closest
to achieving the proper balance. To the extent that anyone feels none
do, then it would be helpful to suggest either an amended or possibly
entirely new mechanism that will do this better than the present
suggestions.
 
Cheers
Mary 
 
Mary W S Wong
Professor of Law & Chair, Graduate IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong at piercelaw.edu
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network
(SSRN) at: http://ssrn.com/author=437584


>>> 


From: Debra Hughes <HughesDeb at USA.REDCROSS.ORG>
To:<NCSG-NCUC-DISCUSS at listserv.syr.edu>
Date: 7/22/2010 7:47 PM
Subject: Re: Comments filed today by American Red Cross

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 J! 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 


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 


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 


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

 

 

 


Pierce Law | University of New Hampshire - An Innovative Partnership
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