Re: [wg-c] FW: [ga] court curbs icann

["William X. Walsh" <william@userfriendly.com>]

Isn't this list defunct, and the group disbanded?

Why are people still forwarding posts to this list?


Friday, May 19, 2000, 4:16:51 PM, you wrote:



>> -----Original Message-----
>> From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On Behalf Of
RMEm> Roeland
>> Meyer (E-mail)
>> Sent: Friday, May 19, 2000 1:14 AM
>> To: 'Harald Tveit Alvestrand'; 'Kent Crispin'; ga@dnso.org
>> Subject: RE: [ga] court curbs icann
>>
>>
>> > 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
RMEm> 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
RMEm> eats
>> glass). Also, try reading the Reader's Digest version of Hamlet
>> sometime, there's a lot missing.
>>
>> > 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
>>
RMEm> http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagena
>>
RMEm> 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,
RMEm> 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.
>>
>> In a ruling on May 3, U.S. District Judge Marvin E. Aspen
>> determined that the court is not bound by proceedings of an
RMEm> ICANN
>> panel. But he indicated uncertainty about just how much
RMEm> deference
>> the administrative procedures should be given. He stayed the
>> federal trademark case pending the outcome of the ICANN
RMEm> decision
>> and said that "at this time we declined to determine the
RMEm> precise
>> standard by which we would refuse the panel's decision and what
>> degree of deference (if any) we would give that decision.
RMEm> Neither
>> the ICANN Policy nor its governing rules dictate to the court
>> what weight should be given to a panel's decision."
>>
>> 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
RMEm> before
>> proceeding.
>>
>> Equally likely, the Judge was buying time to study the matter
>> more deeply. He clearly indicated the UDRP to be non-binding.
>> This is well and good. I further note that when a Judge
RMEm> declines
>> to define something, it is either because they don't yet have
RMEm> an
>> answer that they are willing to live with, or they think their
>> answer would be prejudicial to something where they dearly
RMEm> 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.
>>
>> > - 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
RMEm> had
>> the power to neutralize the UDRP decision, as all parties are
RMEm> 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
RMEm> 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,
RMEm> it
>> is significant that he didn't do so. I'm just not as sure as
RMEm> you,
>> as to which way to read it.
>>
>> It is also worthy of note that Armitage didn't think of filing
>> the TRO, rather than asking the Judge to stay the UDRP
RMEm> 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.
>>
>> > 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
RMEm> significant.
>> What they do with what they see, will also be significant.
>>
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-- 
Best regards,
 William                            mailto:william@userfriendly.com