Re: [ga] General Comments on the agenda

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

I am puzzled by your note.  It makes it sound as if I neglected to comment
at some point when I should have.

I have made my views extremely clear, at some considerable length, some
time ago, indeed long before the DNSO's were formed.  These views, so far
as I can tell, were ignored in the formation of the working groups and
their topics.  If there was a mechanism for me to comment on the working
group topics other than writing to Jonathan Cohen as I did (you [Dr.
Carrignton] recently indicated to me that the message was lost due to your
change of ISP and I duly re-sent it but I can hardly be blamed for
thinking I was being ignored when there was no respose to my email!), I
was unaware of it. My report is, and has been, at:

http://www.law.miami.edu/~amf/commentary.htm

I have not been hiding it...

You ask for details.  Very well.  At the risk of repeating myself, with
regard to the specific questions of the WIPO report as currently written,
and excluding issues relating to famous marks, here are the key operative
parts (I apologize for the length, but it's small compared to the full
commentary):

I. Access to Courts

First, we need to keep in mind that in a very substantial fraction of
cases, probably more than half, when the registrant loses they will have
no cause of action at law.  Thus, we do not have a safety net.  While it
is true that parties don't "waive" their right to go to court, the normal
operation of the legal system in the US and many, many other countries
will result in a situation where a losing registrant has no way to get a
judge's attention.  This is because having lost the ADR, he must frame a
court challenge in contract, tort, regulation, statute, or constitutional
right.  There is no contract with the victorious challenger (perhaps there
should be -- could we have a working group on that please?).  And the
contract with the other relevant parties has not been breached and/or
requires the DN registrant to hold the other parties harmless.  There is
no meaningful tort case (details at the URL above).  There is no
applicable regulation, statute or constitutional provision.  *There is no
case.*

Note, also, that the inverse is not true: a losing challenger has whatever
judicial remedy available after the ADR that existed before it.  As the
WIPO proposal requires there be jurisdiction at the place of the registry,
and that is likely to remain Virginia for the current user base, this is a
significant right wherever the parties may be.

The proceedings are therefore structurally biased against users and in
favor of challengers.  Unlike some, I am willing to accept that this may
not be fatal, but has two important sets of implications: First, it means
that we should be zealous about building in other procedural protections
for the registrant, since he will often have no other chance at justice.  
Second, it means that the WIPO ADR does not scale beyond flagrant
cybersquatting; the murkier and more complicated the issues get, the more
unfair to allow only one party to take them to court if he loses.

If you need a proposed solution, I propose that it be a condition of
initiating an ADR that the complainant sign a contract with the registrant
(or the arbitral institution in a jurisdiction that recognizes 3rd party
beneficiary agreements) designed to (1) consent to be sued in the
jurisdictions where the registrant is ordinarily resident, and in the
jurisdiction where the registrants' registrar is located; and (2) the
challenger agrees to pay the registrant's costs and a token bonus ($50?)
in the event that the challenger wins the ADR but the result is reversed
by a court.  The $50 might (maybe....) provide sufficient grounds to get a
court to issue a declaratory judgment in the US, although courts hate the
thought of deciding wagers, and there is a real risk that this might be
said to be no better than a wager.

II. Mechanics of online arbitration

The WIPO proposal calls for online ADR.  The world has almost no
experience with online arbitration. It has even less with international
online arbitration. Similarly, there is considerable experience with
commercial arbitration, and even with domestic business-to-consumer
arbitration, but no significant experience with international
business-to-consumer arbitration. Implementing this system will thus take
us deep into uncharted waters.  Arbitrators are going to have to make
credibility determinations based on paper records, generated by people who
may in many cases be arguing in a language other than their native tongue.
Standards of proof are not clearly spelled out, and these will matter.

We have almost no experience of any of this.  We especially have almost no
experience of online arbitrations where one party is represented and the
other is not.  What provisions will be made to help people without lawyers
frame their cases properly?  Will there be a checklist of things they
should say or consider? Legal aid?

My proposed solution is that a working group be formed to rough out a
user's guide to the arbitral process.  Since they procedures are to be
"uniform" there should be enough commonality to make this somewhat
practicable.  I also propose that no ADR be mandated until such a time as
this guide is written and tested on focus groups.

III. Procedural Timetable

The timetable is unfair (this is the issue that is noted in the WG-A
report) and invites abuse.  Allow me to quote from my commentary:

"140.First, the date of commencement of the proceedings is the date that
Complaint is received by the Arbitration Service Provider, not the date
that the registrant has actual (or even constructive) notice of the
complaint. The idea that time begins to run before a defendant is notified
of a complaint against him violates all established notions of due process
in the civilized world. Admittedly, there are difficult issues regarding
what constitutes sufficient notice in an online-proceeding. Given the
different ways in which e-mail is used, however, WIPO however proposes the
most unfair rule available.  

"141.WIPO's proposed rule could easily be
abused.
        1.The proposed rules contemplate e-mailed notice by the Provider
to the registrant; 

        2.Time starts to run when this notice is e-mailed, not when it is
read: "a notice or other communication shall be deemed to have been
received on the day it is delivered or, in the case of telecommunications
or Internet modalities, transmitted," Final Report, Annex V, Art. 3;

        3.Nothing in the rules requires that the complainant make any
effort to contact the registrant prior to filing the request for
arbitration, nor is there a requirement that such contact be alleged by
the complainant. A registrant thus may have no reason at all to expect to
be subject to an arbitration, and will not be on notice that they should
check their mail.

        4.Thus, a person who fails to check his email for ten days can
lose by default. 

"142.I presume this is a drafting error, but it is a serious one. It
cannot be WIPO's intention to have a more solicitous procedure for
canceling a registration due to unreliable contact details (Final Report,
paragraphs 122,-123), than for taking away the domain name of a person who
may be reachable, acting in good faith, and away from email for a week and
half. As an initial matter, the rules must be re-written to require
evidence of receipt of a letter before action, and the submission of
evidence that such a letter was received or served should be a condition
precedent for the commencement of the arbitration. If such evidence cannot
be offered the complaint should be dismissed, and the complainant directed
to the takedown procedures for allegedly unreliable contact details.

"143.The ten day period is in any case too short.  A complainant gets as
much time as he wishes to prepare a complaint. In the ten days allotted to
the registrant he must not only receive the notice, but prepare his entire
defense. For a person who may be an unrepresented consumer, with no
familiarity with the relevant arbitral or legal rules, this is not a very
long time. And in that period he must

        1.Decide whether to seek representation; 

        2.Write and submit his sole statement in his defense, Annex V,
Art. 8; 

        3.Collect and submit any relevant documents and a schedule of such
documents, Annex V, Art. 8; and 

        4.Have the defense, and possibly the documents translated into the
language of the arbitration, which will ordinarily be the language of the
registration agreement, Annex V, Art. 22.  144.Ten days (minus the time it
takes to get actual notice!) is simply inadequate for this, especially in
the absence of any warning that the arbitration is imminent."

[There are additional procedural problems when a famous mark is involved,
see para 145 of my commentary, but leave that aside for now].

As noted above, this issue is mentioned in the working group A report,
although previously I was given to believe it was outside the charter of
that group.  I am unclear as to what happens now -- does WG A consider it?
Some new as-yet-formed-group?  No one?

Since I will not be able to attend the GA meeting in person, I think
something on paper in advance of that meeting is to be desired.

My proposed solution is (1) to require evidence of an English-style
'letter before action' or US-style 'demand letter' before commencing the
arbitral process and (2) to enlarge the timetable to 45 or maybe 30 days
FROM ACTUAL NOTICE. One could perhaps have a two-track timetable with
longer times for individials and SME's than for well-lawyered parties.
[Note that the case of impossibility of service is covered in a different
part of the procedures -- which gives a more generous timetable!]

IV. Standard of Proof / Freedom of Expression

This may be the most important issue.  For the avoidance of doubt, and
keeping in mind the potentially international nature of the arbitrations
and the arbitrators, a few things should be made clearer in paragraph 171,
and the cognate sections of Annexes IV and V:

      1.Exactly what needs to be alleged and proved, and the standard of
proof; 

      2.That political comment, parody, consumer complaints, and other
similar expressive activities are a legitimate use of a domain name. 

      3.  Also, more thought needs to be given to the position of a
start-up company: since it is common in Internet-related businesses to
register a name early in the process, and the business may not have a
trademark or many of the traditional indicia of permanence at that stage.

   At an absolute minimum, the text of paragraph 172 or something very
much like it should be inserted into the formal policy adopted by ICANN.
Paragraph 172 is inexplicably absent from Annex IV, the proposed policy
document. Without this critical clarification, the policy is potentially
inimical to freedom of expression.  Personally, I would argue that
paragraph 172 is too weak, and something stronger is needed; exactly what 
depends in part on my next point.

V. Choice of Law

The text of Paragraph 15 of Annex IV at least should be harmonized with
paragraph 176 of the Final Report. Ideally, the final text would make it
clearer than do either of those paragraphs that the arbitrators have a
duty to figure out what law applies and then to use it. The alternative
approach, which invites the arbitrators to make up their own rules, not
only leaves an openings for decisions by the arbitrators inconsistent with
the relevant national law, but also would create greater incentives for
defendants to rush to court as soon as an ADR began. 

VI. Clarity and predictability generally

The usability of the entire edifice would be very substantially improved
if it were accompanied by illustrations drawn from recent cases.   It
should not be too hard to identify decided cases from various
jurisdictions that would have been decided the same, or differently, under
the proposed rules, and to explain why.

I would be pleased to participate in the working group tasked with this
responsibility.


  On Tue, 13 Jul 1999, Dr. Victoria Carrington wrote:

> Michael:
> 
> As usual, your comments are very insightful and merit further
> discussion.  The GA discussion of of WG-A's preliminary report is the
> proper forum to raise these issues and open the dialog to the public,
> and I strongly encourage you to continue doing so.  I am sorry that due
> to time constraints and a heavy workload you were unable to participate
> more in WG-A's initial consultation (although most people are in the
> same situation), however your comments at the time were incorporated

actually, only one of them that I can see - where are the others?

> into WG-A's preliminary report.  The GA discussion is a further good
> opportunity to put your concerns and views before a far broader audience
> and to initiate debate in relation thereto.  The more clearly your
> concerns are expressed and the more support they have, the better able
> the NC will be to deal with them in any recommendations it may decide to
> make to the ICANN Board.  "Constructive" criticism is the backbone of
> the consensus building process.
> 
> I would suggest that you lead the dialog in the WG-A RFC process in

Please forward this message to the right mailing list.

> respect of your concerns.  I know that you are a respected leader in the
> academic community and the champion of privacy rights.  It would do a
> great service to that cause and the others that you have raised if you
> could clearly articulate your concerns in somewhat further detail so
> that those who are not lawyers and/or who have not followed the process
> in as great detail, can understand them.  It would also be of great
> assistance if you would further indicate the implications of your
> concerns as you see them, and how you would resolve them, taking into
> account that these may possibly be implemented and that there is an
> international component to these issues that is beyond the U.S.
> perspective.
> 


I have done so in the report referenced above.  As far as I know, not a
single one of my points is US-centric, although I'll admit that the last
one is based on US-style law reform procedure.

The only wrinkle I am aware of for foreign systems is that some provide by
statute for judicial review of arbitration, which means that some other
nations may provide a means for judicial review of an ADR that is absent
in the US.

I am told by numbers of lawyers in countries with such laws, however, that
is very dubious whether the proposed ADR will be an "arbitration" as
defined in those laws.

Furthermore, these laws vary.  Some are limited to "domestic"
arbitrations, e.g. those with a domestic party and/or those that are
"situated" "in" the country.  We do not know the situs of a
cyber-arbitration.  

Perhaps we could have a working group on this problem?

> If you do this, you will give the GA a real chance to consider your
> views and provide their input as well as providing the NC with the
> opportunity to see if there is a consensus in the GA in relation thereto
> which we can integrate into our recommendations.


Please let me know if the above is insufficient for your needs.

> 
> While privacy and individual rights are important and cannot be
> forgotten, they are but one part of the whole to be considered.
> 
> Your continued input is appreciated and will be considered when WG-A
> prepares its final report to the NC at the end of the month.
> 
> Jonathan Cohen
> 
> 
> Michael Froomkin wrote:
> 
> On the telco today someone (J.Sola?) said that there have been no
> objections to the working group agenda.  This is optimistic.
> 
> I object to absence of several items from the agenda, as I have been
> doing
> for some time, in emails to several of the list and to many of the
> participants:
> 
> 1) The need to include a strong defense of rights of free expression in
> the operative parts of the ADR policy.
> 
> 2) The need to fix the procedural timetable to allow adequate time to
> respond from *actual* notice.
> 
> 3) The problem that the required representation rewards the ignorant at
> the expense of the over-scrupulous (and requires a representation that
> arguably would reverse the result in the Prince case).
> 
> 4) The general issue of the (un)availability of judicial review in a
> very
> large fraction of cases where the original registrant loses the ADR.
> 
> 5) In general, the details of the proposed procedures need to
> scrutinized
> ... no one seems to focused on this.
> 
> What is the mechanism to get someone to pay attention to these issues?
> --
> 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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> 
> 
> 
> 
> --
> Shapiro Cohen
> Group of Intellectual Property Practices
> Ottawa, Canada
> 
> Telephone: (613)232-5300
> Facsimile: (613) 563-9231
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-- 
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
                    -->   It's hot here.   <--