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

[Kent Crispin <kent@songbird.com>]

On Tue, Jun 29, 1999 at 10:12:10AM -0400, Michael Froomkin - U.Miami School of Law wrote:

Pardon me for cutting out a great deal of material in this reply.  
It doesn't mean that I concede the points elided, just that I think 
they are tangential to the questions of importance.

[...]
> 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....

None of the above.  I think the total justice goes up because review
isn't the only term in the equation, and I think that the nature of
the cases are such that review would very seldom be sought in any
case.  [You seem to agree with me, below.]

That is, a non-reviewable process that is just 99.999% of the time is
obviously better than a process that is just 50% of the time, with a
review that is also just 50% of the time.  As you have pointed out,
arbitration in general is difficult to review.  However, we still use
it, because the total justice goes up in spite of that. 

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

When one is driving down the street the *potential* for an auto
accident is very real.  Most people take that as incentive to drive
carefully, not as incentive to stop driving.  Therefore, it is
perfectly reasonable to proceed despite the existence of potential
problems. 


> 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.

1) from your other comments I gather that, in general, fraud by
arbitrators is not reviewable.  

If so, why is it the risk of arbitrator fraud acceptable in other
cases, but not in this one?

If not, what is special about this case that allows fraudulent
arbitrators to operate?

2) the WIPO recommendations allow that if a court action is started,
the arbitrators may suspend the ADR.  Thus there is a
direct-to-arbitration-process avenue for judicial review available. 
[In fact, I believe you claim that this will cause many preemptive
court cases to be filed, so that the "review" by the courts can be
instigated before the arbitrators make their decision.]

Given this fact, and the newness of the ADR procedures, it seems
likely that the first cases will all be watched very closely by you
and others, and will immediately go to court, if the registrant has
any interest defending.

That is, judicial review isn't the only review.  The ADRs will be in 
a very bright spotlight for some time.

[...]

> 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.

OK.  At this point they are.  Therefore, we have your permission to
proceed. 

> 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.

However, any such expansion will go through a long policy 
development process, and thus is not relevant to the present question.

[...]
> 
> > 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.

You would prefer a system that cannot evolve??? Surely you misspoke. 

> 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.

I don't think it's clear that it can't scale.  I think the whole
situation is intrinsically murky, to tell you the truth, and that we
simply cannot forsee all the ramifications of the ADRs.  But as is
frequently the case in the Internet, we have to do something in a
short time, and that does not allow perfection.

That is why it is so important that the process allow for evolution
-- that characteristic is in fact more important than *any* of the
problems you have mentioned. 

[...]

> That said, I do agree that the ADR portion of the report is a starting
> oint to wrok from.

Good.  We agree, I think.

> My discussion of the "glitches" that need immediate
> repair is in another thread.

I look forward to reading it.

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain