Re: [nc-udrp] Authoritative Texts of UDRP Decisions

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

Tim,

Thank you very much.  I take it then that the NAF does indeed claim a
copyright in the material, has no general policy on enforcement, has granted
licenses to specific parties on request, and has not yet exercised its
discretion to refuse consent to any particular request.  Unlike WIPO, which
expressly grants a general public right to copy on their website, the NAF
handles this on an "as requested" basis.  Please correct me if I am wrong.

It is obvious that the decisions are 'freely available to the public', but
that is not relevant to the question of copyright.  The same is true of
television or radio broadcasts, which are certainly copyrighted material.
The question was not about terms of access, but about copyright.  The NAF
decisions are published without notice, so when you say that you ask for "the
copyright notice" to be used as a source identifier, do you request that we
put "(C) <year> National Arbitration Forum" on them?

Does the NAF apply the same policy on copying an entire decision to the
making of derivative works?  For example, what would be the procedure for
someone who wanted to publish a compendium of UDRP information, but who
wanted to perhaps copy substantial portions of decisions, with citation of
course.  Would that require separate permissions and separate copyright
notices for each?

If the practice is to require assignment from the panelists, then it is clear
that we should amend the UDRP to also require the parties to assign copyright
in the submissions.  Many of the panelists quote entire correspondence items,
and/or cut and paste substantial portions of the submissions.  For example in
one case, the panelist reproduced an entire photographic composition,
complete with copyright notice, in a decision (see
http://arbiter.wipo.int/domains/graphics/image75.gif  ).   So, obtaining
assignment from the panelist may not be effective to secure all rights that
may be claimed in the decision.

Finally, I do not see how ICANN's or its counsel's position bears on the
rights of authors or publishers of the decisions so far.  The materials were
not written or published by ICANN, and it appears that ICANN did not require
any conditions on the authors or publishers beyond posting them on a
privately-maintained website - one of which has now disappeared.

John Berryhill
Philadelphia, Pennsylvania

----- Original Message -----
From: "Cole, Tim" <tcole@arb-forum.com>
To: "'Chicoine, Caroline G.'" <CCHICOINE@thompsoncoburn.com>;
<nc-udrp@dnso.org>
Sent: Thursday, February 07, 2002 10:59 AM
Subject: RE: [nc-udrp] Authoritative Texts of UDRP Decisions


> We concur with ICANN's position that all decisions are freely available to
> the public.  In fact, the Forum has never turned down a request to copy,
> reprint, or otherwise make publicly available any UDRP decisions.  We have
> like WIPO, however, requested that the source be identified.
>
> Because our arbitrator agreements include a provision assigning
intellectual
> property rights in all decisions to the Forum, we have asked that the
> copyright notice be used as that source identifier.  This is not intended
to
> limit access, but to identify the Forum as the publisher and source of the
> decision.
>
> We provide ICANN with a copy of every decision we issue at the same time it
> is released to the parties.
>
> Timothy S. Cole
> Assistant Director of Arbitration
> National Arbitration Forum
> 651.604.6725
> 800.474.2371
> mailto:tcole@arb-forum.com
> http://www.arb-forum.com/
>
>
>
> -----Original Message-----
> From: Chicoine, Caroline G. [mailto:CCHICOINE@thompsoncoburn.com]
> Sent: Wednesday, February 06, 2002 10:16 AM
> To: 'J. Scott Evans'; Michael Froomkin - U.Miami School of Law;
> nc-udrp@dnso.org
> Subject: RE: [nc-udrp] Authoritative Texts of UDRP Decisions
>
>
> Louis was copied on the original email, but I will send him a formal
request
> for ICANN's position.  Will the Provider representatives on this Task Force
> send us their positions. Thanks
>
> -----Original Message-----
> From: J. Scott Evans [mailto:jse@adamspat.com]
> Sent: Wednesday, February 06, 2002 7:39 AM
> To: Michael Froomkin - U.Miami School of Law; nc-udrp@dnso.org
> Subject: Re: [nc-udrp] Authoritative Texts of UDRP Decisions
>
>
> All:
>
> Let's not make a mountain out of a mole hill.  I say let's ask Louis his
> position.  We could also send a formal e-mail or letter from the Task Force
> each provider for which we do not have a clear answer.  This will allow us
> to collect the necessary information to formulate a position in our
> recommendations to the NC.
>
> J. Scott
> ----- Original Message -----
> From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
> To: <nc-udrp@dnso.org>
> Sent: Wednesday, February 06, 2002 8:30 AM
> Subject: RE: [nc-udrp] Authoritative Texts of UDRP Decisions
>
>
> > [cc's trimmed]
> >
> > It seems clear to me that we should in our revisions require that the
> > decisions be subject to something like the copyleft license.
> >
> > On Wed, 6 Feb 2002, Neuman, Jeff wrote:
> >
> > > It was always my impression that the Copyright to those decisions
> belonged
> > > to ICANN (although I admit that this was never explicitly stated in
> > > writing).  Someone may have done this already, but has anyone called
> > > eresolution to see if we could get the decisions, or if the decisions
> can be
> > > hosted elsewhere, or even if they would claim infringement if we copied
> > > them?
> > >
> > > I know we have tried to address this problem in .us in that we are
> requiring
> > > that the decisions be sent to NeuStar to keep on file in the event that
> this
> > > happens.  For .biz, we are requesting copies of the STOP proceedings as
> > > well.
> > >
> > > I do believe that eresolution's decisions should also be made publicly
> > > available.
> > >
> > > -----Original Message-----
> > > From: John Berryhill [mailto:john@johnberryhill.com]
> > > Sent: Tuesday, February 05, 2002 11:54 PM
> > > To: nc-udrp@dnso.org
> > > Cc: halloran@icann.org; touton@icann.org
> > > Subject: [nc-udrp] Authoritative Texts of UDRP Decisions
> > >
> > >
> > >
> > >
> > > I find the silence on the question of copyright in UDRP opinions from
> the
> > > DRP representatives to be somewhat baffling, as the question has taken
> on
> > > some urgency.  It's a simple question which merits a yes or no answer.
> > >
> > > As of today, the plug appears to have been pulled on eresolution.ca.
> Hence,
> > > there is now no authoritative source of the text of any eResolution
> > > decision, and all of the links from the ICANN UDRP index to eResolution
> > > decisions are now broken.  This may come as some relief to certain
> attorneys
> > > in New York who were sanctioned by a federal judge this month for
having
> > > brought the cello.com UDRP proceeding in violation of the final order
in
> > > _Cello Holdings v. Lawrence-Dahl Companies_.
> > >
> > > I have become aware that several individuals have privately backed up
> copies
> > > of these decisions, and have offered to make them available to me on
the
> > > condition that I not identify them, since these individuals do not want
> to
> > > be accused of copyright infringement.  This is a ridiculous way to
> practice
> > > law - citation by Napster.
> > >
> > > On the upside, though, I guess we are all free to amend the text of
> these
> > > decisions as needed to fit, since nothing cited from an eResolution
> decision
> > > can be checked against an authoritative text.
> > >
> > > The ICANN-DRP agreement, which requires DRPs to post their decisions,
is
> > > obviously flawed in that it fails to contemplate the possibility of a
> DRP
> > > going belly-up.  While I realize that a similar vulnerability exists
due
> to
> > > ICANN's failure to implement a registar data escrow system for domain
> > > registrations, surely it is not a great burden for the authoritative
> text of
> > > UDRP decisions to be maintained by ICANN, rather than in potentially
> > > unstable proprietary databases.
> > >
> > > WIPO posts an express disclaimer on the website which permits copying.
> The
> > > NAF website has no terms of use at all.  CPR-ADR and the Asian DRP
> coming
> > > online are too insignificant to worry about.
> > >
> > > Tim?  Does the NAF claim a copyright in NAF UDRP decisions?
> > >
> > > Jim?  Does the NAF require you to sign a release when you write one?
> > >
> > >
> > >
> >
> > --
> > Please visit http://www.icannwatch.org
> > 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 warm here.<--
> >
> >
>