Comments filed today by American Red Cross

[Avri Doria]

Hi,

Not really jumping into the debate, but wanting to make two points.

- Reading the discussion it also appears the NCSG, given its variety of views is in a good position to work through some of the differences to be able to make recommendations for future policy that are balanced between the competing requirements.

- On the complexity of documents such as Domain Registration Agreements.  Many consumer groups have discussed the legalese people are forced to read and sign to do anything on the net.  It turns out that almost no one reads them.  Yes, people check that they have, but everyone, including those who put them out know that people aren't reading them.  What responsibility does ICANN, and its accredited registrars have for making sure that the obligations are not only possible to meet (the subject of the discussion), but understood.  Of course doing this is part of the work of the RAA WG.

Anecdotally, my housemate reads every word, and almost never signs a single one - buying or subscribing to close to nothing on the net because of the onerous conditions.  

a.

PS: I think using Tucows as an example might not be fair as they seem the most people-centric registrar i have ever looked at. On other lists one sees discussions about how good registrars are at obfuscating.

On 23 Jul 2010, at 14:54, Debra Hughes wrote:

> Konstantinos:  
> 
> Whether we agree or disagree with the scope of trademark rights, I think
> the non-commercial community at ICANN is in a unique position not only
> address the legal trademark arguments (which the NCUC has been very
> involved with) but also consider helping these registrants understand
> the current types of agreements and conditions a registrant agrees to
> when registering a domain - even if you don't agree with the scope of
> trademark rights.  I think that is one way to move towards fairness.
> 
> For example, when a registrant acquires a domain name with Tucows,
> he/she agrees to a Terms of Service, a privacy policy and a Domain
> Registration Agreement - See:
> http://ask.hover.com/forums/32358/entries/21801  &
> http://www.opensrs.com/docs/contracts/exhibita.htm.  As law professor,
> you are probably are familiar with such obligations, what registering a
> domain name means and the potential consequences.  The point I have been
> trying to make is that individual registrant and/or a small organization
> in a developing/emerging country may not be aware of the terms what they
> are agreeing to.  These consequences may or may not impact the name a
> registrant decides upon.  
> 
> Regarding the URS - While the final terms are unsettled, I wonder how
> the URS will be used, if at all in the current format.  It will be
> interesting to watch how the community interprets and defines "clear cut
> cases" that warrant use of the URS.
> 
> 
> -----Original Message-----
> From: NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of
> Konstantinos Komaitis
> Sent: Friday, July 23, 2010 1:28 PM
> To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: Comments filed today by American Red Cross
> 
> The fact of the matter is that we are all users Debbie: trademark
> owners, Registrants and non-registrants. We are first users and then
> everything else. The fact that a Registrant has registered a domain name
> does not mean that he or she has also unlimited or easy access (you can
> ask Alex on this). It just means that he or she registered a domain
> name.
> You say that "when a person registers a domain name, he should
> understand the decision he/she is making". What do you mean? What
> exactly should Registrants understand? The fact, for example, that even
> if a Registrant uses a trademarked term within a bigger name as part of
> his or her free speech, they will lose it under the UDRP? There is
> really nothing to understand in such instances - it is nominative use
> and no one talks about nominative use in the UDRP. Trademark owners want
> users and Registrants to believe that any reference to a trademark term
> is infringement.
> 
> Thankfully, courts do not agree with this: here is an excellent decision
> on the boundaries of trademark protection in the context of domain
> names. I have blogged about it here:
> http://www.komaitis.org/1/post/2010/07/the-lessons-the-trademark-communi
> ty-should-learn-from-judge-kozinskis-ruling-on-nominative-use.html
> And you can get the decision here:
> http://pub.bna.com/eclr/0755344_070810.pdf.
> 
> KK
> 
> 
> On 23/07/2010 00:16, "Debra Hughes" <HughesDeb at USA.REDCROSS.ORG> wrote:
> 
> The problem I had with Konstantinos' mention of "user" in his email was
> that he said: "For many users the Internet is still not a given" in the
> context that certain areas have limited access to the Internet.  But my
> point was that a registrant had access to the Internet when they
> registered the domain and to now make the argument that more time is
> needed to respond based on that premise seems unclear and difficult to
> accept.
> 
> When a person registers a domain name, he should understand the decision
> he/she is making.  The ICANN community (BD, Staff SGs, SOs) should be
> responsible for making that information available to all sorts of
> potential registrants - like small NGOs or corporations and individuals
> in emerging markets.  Of course an individual registrant may not plan a
> legal defense 30 days before a registrant decides to register a domain
> name - that is not what I was suggesting at all.  My point was that I
> don't think it is unreasonable to expect the registrant to be
> accountable for understanding the potential consequences associated with
> that decision.  The concept of justice and fairness are important, but
> it should flow both ways.  I agree that large, medium and small entities
> should be held accountable for their actions and should not abuse the
> system.  I don't think it is unreasonable to ask individuals to are
> acquiring a valuable resource to also be accountable for understanding
> the policies, issues and rules of the DNS associated with that
> acquisition - it just seems fair.
> 
> Debbie
> 
> 
> ________________________________
> 
> From: NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of
> Milton L Mueller
> Sent: Thursday, July 22, 2010 6:45 PM
> To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: Comments filed today by American Red Cross
> 
> I really have to agree with Konstantinos and tlhackque. Deb, your
> perspective is entirely that of a large trademark holder, which is a
> legitimate perspective for you to represent, but a very limited
> perspective and others have to be taken into account.
> 
> From 2000 - 2002 I compiled a huge database of domain name-trademark
> disputes. I saw thousands of cybersquatters and other kinds of abuse but
> I also saw hundreds of unfair accusations and plain old reverse domain
> name hijacking by companies that just wanted a valuable .com name.
> Before you can take valuable resources away from people there has to be
> due process. The need for speed has to be moderated by the need for
> justice.
> 
> I don't get your argument about the distinction between a user and an
> internet registrant; a registrant is a user. Most people who register
> domains are not preparing legal defenses for 30 days before they
> register.
> 
> 
> From: NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of
> Debra Hughes
> Sent: Thursday, July 22, 2010 1:43 PM
> To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: [NCSG-NCUC-DISCUSS] 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-Reg
> ulation-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>
>