Re: [discuss] Notes - Names Council Meeting, San Jose - 062599

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

I am going to assume you are not a lawyer, and spell it out in
some, albeit not total, detail. Even so, that means this is a long post.

On Mon, 28 Jun 1999, Kent Crispin wrote:

> On Mon, Jun 28, 1999 at 09:57:56PM -0400, Michael Froomkin - U.Miami School of Law wrote:
> > Alas, in practice, the WIPO process would often supplant the law.
> 
> "Often"?  
> 
Yes, "often".  We can't put a precise % on it since we don't know what %
of the parties will be in what states, and what kinds of issues they
will have.  I substantiate "often" below.

> > I explain this in detail in my WIPO reports at
> > http://www.law.miami.edu/~amf  .They say they won't, they may mean not to,
> > but the fact remains that a party who doesn't initiate a suit before the
> > ADR is over will in many cases  have no recourse to the courts (no cause
> 
> "In many cases"?
> 

ditto

> > of action).
> > 
> > I've been saying this for months, in detail, and am still awaiting a
> > rebuttal to this claim from any party to this debate.  
> 
> Just reviewed your document.  Paragraphs 117-127 are the operant ones, 
> I believe.  The fairly obvious rebuttal is this: indeed such cases 
> as you describe may occur, but that is not necessarily relevant.  No 

You simply cannot have it both ways:  either the decisions are reviewable,
or they are not. And if it's the case that some are and some are not,
depending on the location of the parties and the nature of the unfairness,
that is very serious.  Better to make it all unreviewable and understand
what is going on.

This is what is so odd about your reply:  how can a large (and I'll show
below why it's large) potential class of unreviewable decisions be
"irrelevant" to the merits of a plan that is promoted on the basis that if
something bad happens the decision is reviewable?

Are they irrelevant because you don't think they exist?  Then you are
wrong. Or because you just don't think they are important?  Then you are
willing to replace the current system with an even more unjust system? Or
do you just think they are rare (so the total justice goes up)?  In that
case, see below....

It is also important to understand that the *potential* for injustice is
very real here.  We are talking about an ADR process in which

* we have no experience of cyber arbitration

* arbitration is often an inferior means of achieving justice when one
party has a lawyer and the other does not (although this is not inevitable
-- set it up right and it can be very good at this; alas, there's no sign
that the WIPO ADRs will be set up that way)

* we don't know who the arbitrators are or how they will be picked

* the relevant  law is unclear in many relevant jurisdictions, making the
arbitrator's job harder, and the case for judicial review more compelling

* the law is different in many relevant jurisdictions (e.g. US vs.
Germany)

* there is already a pattern of people trying to use trademark laws to
prevent expressive activity they disagree with, and to do "reverse domain
name hijacking"

> set of procedures can be perfect; some criminals will escape and some 
> innocents will be convicted in even the best legal system (that's an 
> example -- I am not describing the ADRs as a legal system).  A 

So is it relevant or not?  In fact, your instinct was correct: the ADR IS a
legal system.  One that will be immune from review in a substantial (yes,
that's imprecise) fraction of cases.

> proper evaluation of the effect must include some indication of the 
> probabilities of the various assumptions.  You say "often", and "in 
> many cases", but there is no basis for those assignments of 
> frequency. 
> 

Well, let's start slicing the salami

P = complainant
D= original DN registrant

If P & D are both US citizens, then barring a small set of special
circumstances the case is unreviewable.  An example of that small set is
fraud by the arbitrators.  The arbitrators getting the law completely
wrong will not be sufficient grounds to get the case into a court.  A US
court will not take the case because there is no cause of action after the
transfer of the DN:  there's no contract between P & D, and even if there
were it has not been violated; there's no tort; there's no violation of a
statutory duty.  Hence there is no case.

If P is in the US and D is not, D may be able to get judicial review at
home if (and usually only if) P has sufficient contacts with D's home
nation that the court will exercise jurisdiction over P.  D cannot get a
US court to review the case barring the special circumstances.  Whether
D's home court will exercise jurisdiction is a complex question of local
law, as is whether there will be a cause of action.  Some states have a
statute that provides for judicial review of arbitrations (but there's an
issue as to whether this ADR is an "arbitration" since the results are
formally non-binding); some restrict it to arbitration conducted "in"
that state (and there's an issue as to *where* the ADR was conducted,
given it's a cyber-arbitration).  And so on.  Tough issues.

If P is non-Us and D is US, D may be able to get the courts of P's country
to review the decision, depending on what their rules are (see above for
some of the pitfalls). I have not made a systematic study of the legal
systems of the world here -- and neither has WIPO ass far as I can tell --
but it appears that the results are in no way uniform; some will, some
won't, some it depends on various things.

Does that satisfy you for "often"?

Again, recall, this is in the context of the sanguine claim by WIPO that
we don't need to worry too much about this ADR stuff because judicial
review is always available.  I would not go so far as to say it is never
available.  I will say with great confidence that it will "often" not be
available.

> You give the example of a "plaintiff" in New York and a defendant in
> Prague, and construct what is actually a fairly elaborate scenario
> where a bad effect occurs:

It's an example.  One of many possible examples.  To appreciate it you
need to understand that it's commonly thought to be a fairly basic
principle of justice that citizens have a right to be sued in their own
courts in their own language.  Any rule system that takes this away, and
forces citizens to become plaintiffs in a foreign court in a foreign
language to vindicate their rights is suspect. 

The WIPO report is artfully crafted to hide this fact:  not only will the
losing D be a plaintiff in the subsequent action (reversing the burden of
proof) ---which I consider to be a tolerable problem -- but also be
required in cases where P is not present in D's jurisdiction to go abroad
and hire foreign counsel.  If the foreign court will even hear the case.

 > 
>   "Suppose that Alice, the complainant, lives in New York, and Bob,
>   the registrant, lives in Prague.  If Alice can persuade a New York
>   court to assert jurisdiction over Bob because he is using the
>   domain in an infringing manner with effects in New York, then she
>   can bring suit where she lives.  On the other hand if Bob has
>   merely registered the domain but made no infringing use of it,
>   Alice probably must go to Prague to bring the action.  (Alice may
>   have waived her ability to in rem complaint against the registry
>   once in enforces the ADR decision by virtue of the terms proposed
>   for her contract in paragraph 220(iii) of the Final Report.) The
>   WIPO-ADR offers Alice a potentially attractive means of avoiding
>   the expense and uncertainty of hiring foreign counsel and risking
>   the vagaries of a foreign legal system.  If Alice loses, and she
>   wishes to bring suit anyway, she has the same options she had
>   before the WIPO-ADR."
> 
> Note the following assumptions:
> 
>   1) Widely separated jurisdictions, cultures, language, and physical 
>   locations, but still contending over a domain name

But for these facts, there would be no need for the WIPO ADR at all.  We
could let national courts sort it out in every case.  If you challenge
this assumption, you challenge the major justification for the WIPO
edifice.

> 
>   2) A questionable result from the ADR
> 

But for this assumption we have no need for judicial review.  The system
is untried, unknown, and we have almost no experience of
cyber-arbitration.  Of course people expect teething difficulties.
Note that the group that was most insistent on not making the ADR binding
and final was....the trademark owners themselves.

WIPO itself sells its system on the grounds that judicial review is
readily available.

If you question this need, fairness would suggest you support making the
ADR final and binding.  That at least treats everyone the same.  I could
live with that more easily than the present scheme.

I should also note that in a spirit of compromise I can even take the
unfairness of the present scheme BUT only so long as the jurisdiction of
the tribunals is limited to a narrowly drawn class of alleged
cybersquatting.  My main concern is that it is clear WIPO and some others
see this as just a first cut at implementing a more comprehensive ADR
scheme.  And that is where this issue becomes unacceptable to me.

>   3) that alice could persuade a New York court of jurisdiction

This is not an assumption of the above.  On the contrary, my point is
that in most cases she cannot do this.  Thus the WIPO proposal is
one-sidedly advantageous to Alice, and disadvantageous to Bob.
 
>   4) That the court in Prague could not be persuaded that it had 
>   jurisdiction to issue a stay

I presume here you mean a stay in response to Bob's request after he
loses the ADR.

Although rules vary, it is commonly the case that courts will not issue
stays unless they have jurisdiction over the person to whom the stay is
directed.  In this example, the court does not.   Most courts will not
issue a stay on theses facts (but I confess I do not know the rule in the
Czech Lands on this point).

>   5) that the registry/registrar/ADR panel would not accept such a 
> stay if it were issued, despite what I perceive as the intention 
>   of the WIPO report that the ADR would actually accept the result 
>   of any competent court.

The issue isn't what the panel would do -- it's done, since it rendered
its decision.  The real issue is what the registry would do.   But in most
cases we don't get to this issue since as I explained above, the court
just won't issue the order.  Again, I'm sure that some courts,somewhere
will.  But most will not. 

> 
>   6) That the plaintiff was wealthy and sophisticated enough to 
>   otherwise bring a suit
> 

Lost me here.  Do you mean Bob or Alice?  If you mean, Alice wouldn't go
against Bob but for the ADR procedure, I'm more than happy to agree this
is often going to be true.  So?

>   7) That the defendent was sophisticated and wealthy enough to
>   contemplate a suit in New York, but at the same time naive enough
>   to let the 7 day rule catch him by surprise. 
> 

I am assuming that Bob is not a multinational corporation.  They can
indeed look after themselves.  I am focused on the very significant class
of cases where D is a private citizen.  There are a lot of these cases.
Many never make it to court because the D folds at the first threatening
letter.  If Bob is not a multinational, it is unfair to expect him to
retain foreign counsel in anticipation of a bad result in the ADR.  Too
expensive.  And once he loses, 7 days isn't long to find a competent
lawyer in a foreign country and language, explain the case to them (what
if you need a translator?), and get them to file the papers needed for a
TRO.  Even in places with fast court systems like ours.

>   8) That other complicated jurisdictional issues work in a
>   particular way to favor your case.
> 

Not at all.  See above.  Otherwise, please be if not specific, at least
other than  content-free.

> Moreover: You presume that it is fair for a plaintiff to have to go
> to extraordinary effort to bring legal action, but unfair for a
> defendent, despite the fact that these cases are restricted to
> egregious cybersquatting. 

Alleged egregious.   Innocent until proven guilty.  you don't lose your
rights because someone accuses you of something.  

> 
> More than anything else, the importance of the WIPO report is that 
> it is an INTERNATIONAL effort.  Your analysis deals with details of 
> American Law, but I'm sure that you would admit that you do not have 
> the expertise in international issues that the WIPO staff does.
> 

Actually, I will not concede that.  WIPO appointed me to be a member of
the Experts group advising them.  I was an international lawyer in private
practice before going into teaching.  I specialized in arbitration law in
private practice.  I was one of the first US legal academics to specialize
in Internet law.  There are people in the world more expert in this than
I, but I think I will do until one of them joins the list.  Furthermore,
WIPO's expertise is IP law, not arbitration law.

In any case this is not and should not be an argument from authority (if
it were, why should anyone listen to you?  Are *you* an international
lawyer?), but rather one about facts and policy.  Which is why I am
replying to you even though it appears you don't know some basic things
most lawyers know (this is not a slam-- why should you if you are not a
lawyer?  I'm sure you know lots of stuff I don't know about other
things.).

> Moreover, there are explicit statements in the report that the
> recommendations are not static final results, but instead are an
> initial cut, and are intended to evolved over time.  
> 

Indeed.  That is one of the most worrying aspects of it.  As I said above,
we can if we must tolerate a little unfairness in the "cybersquatting"
realm if that is the price of a deal everyone can tolerate -- but we need
to make clear that it will not scale.

There are also a number of things that need to be fixed now, before any
part of this is implemented.

> So, in sum, while I view your arguments as interesting from a
> theoretical standpoint, and certainly they must be kept in mind as we
> go forward, I also view the WIPO report as the work of genuine
> experts in the practicalities at issue.  I would therefore prefer to
> take their work as a starting point, and evolve from that.
> 

If WIPO appointed me as an "expert" to advise it on the very report you are
extolling, what does that do to your argument? And I'm not the only expert
on or off WIPO's hand-picked panel that takes the views I have outlined.

That said, I do agree that the ADR portion of the report is a starting
oint to wrok from.  My discussion of the "glitches" that need immediate
repair is in another thread.

-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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