Re: [ga] court curbs icann

[Jeff Williams <jwkckid1@ix.netcom.com>]

Roeland and all remaining assembly members,

  I believe as it seems you do Roeland that Haralds analysis is both
premature, and significantly favorable to the UDRP, WIPO and ICANN.
I don't read the decision in that light or the headline and the story
itself
would not have been noteworthy or possibly even reported in the law
review.

  But I digress further...  (See more below your comments in response to

Haralds).

Roeland Meyer (E-mail) wrote:

> > From: Harald Tveit Alvestrand: Friday, May 19, 2000 12:08 AM
> > At 12:39 18.05.2000 -0700, Roeland Meyer \(E-mail\) wrote:
> > >Aside from the obvious? I'm not sure, at this point, how this
> > >effects the UDRP.
>
> One problem that I have with this is that we are doing this
> analysis from a condensed report. Yes, I know that the actual
> source dox may be rather obtuse. However, this is an
> interpretation, of an interpretation, with no source dox
> available (he whom depends on crystal balls too much, often eats
> glass). Also, try reading the Reader's Digest version of Hamlet
> sometime, there's a lot missing.

  I have as of today received a complete copy of the source
dos as you put it here Roeland.  And I read the interpretation
as pretty much following the source dox.  However there are some
legal points of significant but rather lengthy to go into detail here
I am afraid.  :(

>
>
> > It would seem to reaffirm the UDRP's view of itself in the
> > scheme of things.
> > See in particular section 4 K of the UDRP at
> > http://www.icann.org/udrp/udrp-policy-24oct99.htm, which
> > clearly states
> > that a court of law may overrule an administrative panel
> decision.
>
> <excerpt
> http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagena
> me=law/View&c=Article&cid=ZZZI5DBFD8C&live=true&cst=1&pc=0&pa=0&s
> =News&ExpIgnore=true&showsummary=0>
>
> Additionally, Weber-Stephen went to the Internet Corp. for
> Assigned Names and Numbers (ICANN), the nonprofit, private-sector
> corporation set up to oversee Web-name assignments and resolve
> domain-name disputes. Under the organization's Uniform Domain
> Name Dispute Resolution Policy, Weber-Stephen asked ICANN to
> cancel Armitage's domain names or to transfer them to Weber. In
> response, Armitage asked the federal court to stay ICANN's
> administrative proceedings and declare them nonbinding.

  This part directly refutes in part Haralds statements regarding
federal
court involvement and the meaning of the stay specifically.

>
>
> In a ruling on May 3, U.S. District Judge Marvin E. Aspen
> determined that the court is not bound by proceedings of an ICANN
> panel. But he indicated uncertainty about just how much deference
> the administrative procedures should be given. He stayed the
> federal trademark case pending the outcome of the ICANN decision
> and said that "at this time we declined to determine the precise
> standard by which we would refuse the panel's decision and what
> degree of deference (if any) we would give that decision.

  The "If any" is a significant indicator here in this part.  Again
something
that Harald seems to have either overlooked in his questionable analysis

or purposefully ignores for unknown but highly suspicious reasons of
which
the history of this DNSO GAL list has well documented IMHO.

> Neither
> the ICANN Policy nor its governing rules dictate to the court
> what weight should be given to a panel's decision."

  And this is a rather significant and strong language of the decision
which should serve as warning to ICANN and the use of the UDRP
in general for DN disputes of all types or flavors, to use the
vernacular.

>
>
> The ruling is significant because of the volume of
> dispute-resolution proceedings now before the administrative
> organization. According to the ICANN Web site, on May 9 there
> were 518 unresolved cases.
>
> </excerpt>
>
> > As I read the decision as reported, there are 2 significant
> > parts that actually *increase* the status of the UDRP:
> >
> > - He stayed the federal case. This indicates that he regards
> > the outcome of the UDRP proceeding as worthy of hearing before
> proceeding.
>
> Equally likely, the Judge was buying time to study the matter
> more deeply. He clearly indicated the UDRP to be non-binding.

  Indeed right on here I believe Roeland.  Non-binding has many
interpretations
and aspects to it especially as it relates to jurisdiction.

>
> This is well and good. I further note that when a Judge declines
> to define something, it is either because they don't yet have an
> answer that they are willing to live with, or they think their
> answer would be prejudicial to something where they dearly would
> like to see an objective result, (one that is not effected by
> their action). In this case, he is clearly trying to remain as
> neutral as possible, in order to see what the UDRP does.

  Agreed to a great extent.  It is also a indicator that the Judge
is somewhat suspicious of the UDRP process or even it's existence
as a procedure.

>
>
> > - He *denied* the motion by Armitrage to stay the ICANN
> proceeding.
> >    (Given that it was a WIPO hearing, based in Switzerland,
> > he might have
> >    realized that this wouldn't be trivial to implement.)
>
> IMHO, the jurisdictional issue appeared irrelevent. The Judge had
> the power to neutralize the UDRP decision, as all parties are on
> US soil and this was in Federal court. Appropriate court orders
> could have either superceded, or supported, anything the UDRP
> decided. He could have, trivially, ignored the UDRP altogether by
> awarding a TRO against NSI changing anything until he is done
> with it. That implementation mechanism is more than obvious and
> would have made the UDRP irrelevent, instantly. You are right, it
> is significant that he didn't do so. I'm just not as sure as you,
> as to which way to read it.

  Overall I agree with your take on this as well in contrast to Haralds.

>
>
> It is also worthy of note that Armitage didn't think of filing
> the TRO, rather than asking the Judge to stay the UDRP proceding.
> Without access to the source dox, it's difficult to determine
> exactly which way it went. If some of the lawyers on the list
> want to comment on this point, please do so.
>
> Effectively, the two cancel each other, with the result being
> neutral.

  It seems obvious though that this judge is not satisfied with the
UDRP process and wants to see more before going further
with this decision or potentially modifying it later should one or
both parties choose to proceed in that direction.  This leaves the
door open for further action from the Federal bench.

>
>
> > Reading the UDRP proceeding decision is also interesting.
> > To my mind, this is *exactly* how the UDRP should work:
> >
> > "If Complainant desires to obtain relief based upon some
> > allegations that
> > Respondent overstepped or overstated the bounds of its
> > arrangement with
> > Complainant, or that no such arrangement exists, that
> > argument is better
> > addressed to a court, which is equipped to resolve such
> > complicated factual
> > issues."
> >
> > In other words: "This matter is not a clear cut case. The
> > UDRP does not apply. Go to court."
> > And it makes a point I made during the WIPO discussions: That
> > it *must* be
> > possible to bring a case before the UDRP panel to find out
> > whether it is a
> > case where the UDRP can be applied or not. Otherwise we need
> > a meta-panel
> > to decide whether a case can go to the panel, which may then
> > have doubts
> > cast upon its jurisdictions, which then need to be resolved
> by.....
>
> The problem is that we have been seeing some extremely flakey
> UDRP decisions. Ergo, I don't know where your point helps that
> here.
>
> > I think this case indicates that the process is working, just
> > about the way
> > I thought we wanted it to work.
> > Not too bad.
>
> Not too good either. In balance, it came out neutral (with the
> caveates I started this note off with). I definitely read a
> wait-and-see here. That they are willing to watch is significant.
> What they do with what they see, will also be significant.

  Very much agreed.

>
>
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Regards,
--
Jeffrey A. Williams
Spokesman INEGroup (Over 112k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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