John Gilmore's comments on Proposed Uniform Dispute Resolution Policy

[John Gilmore <gnu@toad.com>]

Two overall issues, then some comments about specific places in the
documents.  Do not create new rights for trademark holders; and
ICANN should not be permitted to unilaterally change the contract.

*** Do not create new rights for trademark holders

The UDRP should not create any rights for trademark holders that the
law does not already provide to those holders.  It is the job of
legislatures to debate adjustments among the rights of citizens.  Does
the drafting panel (and ICANN) agree with this intent, or does it
intend to provide new rights unavailable in law?

I suggest implementing this intent by requiring that any Panel which
takes away a domain name must come to a formal conclusion that the
existence of the domain name is legally infringing the trademark.
(This conclusion is not legally binding in a court, but would provide
guidance to Panels to avoid unintentionally extending the rights of
trademark holders.)

Note that e.g. an infringing web page somewhere under the contested
domain would not suffice.  Web pages can be changed (and courts can
compel people to change them).  A user should not lose their domain
name when all that really needs to happen is that they edit a web
page to come into full conformity with law.

Implementing this policy would require modifying section 4ai such
that the Complainant must assert that the domain name not only
is "confusingly similar" but actually "infringes".  (There is more
to infringement than confusing similarity.)  Under 4b the complainant
would still have to prove bad faith, IN ADDITION to infringement.
Mere "bad faith" without infringement should not be punishable,
just as a court could not punish a non-infringer under trademark law.

*** ICANN should not be able to unilaterally change the rules later

Paragraph 9 should not require users to stop using domain names in
order to escape a new rotten policy.  That is tantamount to forcing
the new policy on everyone without recourse.  There is no legitimate
reason to give ICANN that power.  The contract that the domain user
entered into when they registered the domain name should continue in
force.  Nobody should be forced to move to a new domain name policy
against their will, or at penalty of losing their domain name.

One possible way out of this issue is to follow a path laid down by
the Free Software Foundation.  See the GNU General Public License at
http://www.gnu.org/copyleft/gpl.html, section 9.  FSF version-numbers
its revisions to the license, and permits authors to pick a version if
they choose.  Users can then choose any version later than that
version, or any version ever published by FSF.  (One of their licenses
has gone through two revisions, the other one three revisions.)

To map this paradigm to domain disputes, your Registration Agreement
could specify a version number or could leave the version unspecified.
If and when a complaint is lodged, the Respondent (as the party who
entered into the contract) would specify which particular version of
the dispute rules they wish to use.  (They must choose the version in
the Reg Agreement or a later one; or any version if none is specified
in the Reg Agreement).

If egregious errors are found in an early Dispute Policy, imposing
them on all domain name users would require that every Registration
Agreement be updated to refer to the new version.  Once domain name
users renewed their names and agreed to the new Registration
Agreement, they would then be unable to choose the original Dispute
Policy.  This seems to me to be sufficient work and time that it will
only happen if a truly egregious error is found.  Otherwise, users
will be free to choose the original dispute policy, or the version of
the Dispute policy that existed when they signed the contract,
regardless of how many times ICANN or WIPO interests have later
screwed it up.

*** General comments on specific sections:

4c. Is freedom of speech a legitimate interest in a domain name?
(i) requires commercial activity.  (iii) permits "legitimate" noncommercial
use, but that circularly depends no whether free speech is legitimate.
If I merely wish to speak under name X, and did not pick name X
to "misleadingly divert consumers" or to "tarnish the trademark or
service mark" then do I by definition have a legitimate interest?
Your text would leave that up to the Panel, with varying but
probably bad results.

4c.  The wording is pretty strong here, but I would recommend an
even stronger wording:  that if any of the enumerated factors is found,
each of them is an ABSOLUTE DEFENSE against having your domain name
taken away.

4d. Provider selection.  The Respondent must be able to select a
Provider accredited by ICANN.  Both sides have an interest in
"jurisdiction shopping", but the default must be to assume that the
status quo is legal (the accused is innocent) and therefore that the
Respondent should be assumed to be picking a Provider more honestly
than the Complainant.

4h.  This paragraph is very strange.  "We do not..."  Who does "We"
refer to???

4j also says "us".  Who is us?  The rest of the document addresses
the end user as "you".  The document is imposed by ICANN on everybody;
is "we" ICANN?  A domain provider?  A registrar?  A complainant?

4j should require all cases to be published, period.  If someone wants
a Star Chamber with secret proceedings, they had better go through the
courts.

MISSING: There is no censure against those who use the Policy in bad
faith for reverse domain name hijacking.  Under the Rules, a Panel
will certify that it occurs, but this has no effect on future
disputes.  The Policy should state that if a Panel certifies that the
Complainant has used the Policy in bad faith, further Complaints from
that Complainant will be rejected (after payment of the usual fees).
They must go to the courts thereafter if they have a domain name
issue.  In addition to the Provider checking for this itself, this
should also be added as an absolute defense for a Respondent to raise
(that the Complainant has lost one or more reverse domain name hijack
attempts).

*** Comments on the Rules...

Somehow I get the feeling that 'Provider' is going to turn out to be
WIPO, which sucks.  The document shouldn't dodge this, but face it
squarely and let the public decide whether they want that.

2a should also add "Sending email to postmaster@DOMAINNAME" as a means
that should be tried to contact someone at a domain.  The RFCs require
that a Postmaster email address exist, and in most cases it does.

2biii should specify that all electronic communications are to be made
in plain text in a standardized encoding (such as ASCII or the
worldwide equivalants).  Documents in proprietary formats are
unacceptable, as they cannot be read by large numbers of recipients.
Lawyers seem particularly fond of sending Microsoft Word documents, as
if everyone in the world would voluntarily pay Microsoft to be able to
read them.

2b.  Should it say anything about choice of written language
(E.g. French)?  I regularly receive spam in languages which I do not
speak, so any such messages get quickly tossed into the trash.  This
is probably true for many domain-name holders, many of whom will not
speak English.  Perhaps require a specific Subject: line or phrase in
the line, such as "DOMAIN DISPUTE NOTICE", which people worldwide can
be taught to recognize even if they don't generally read English.
This is somewhat addressed in paragraph 11, but it doesn't specify
when the language requirement takes effect -- before the administrative
proceeding begins, when attempting to contact the domain name holder?

5bvii.  People have to certify that they are not Responding wth intent
to harass?  How could that be?  The Response is required, or else the
panel will decide based on the jerk's allegations.  The Respondent has
already been harassed by an outside party who is attempting to take
away their domain name.  How could they possibly "respond" with
"intent to harass"?  *Failure* to respond is more likely to be done with
intent to harass, but in that case there is no opportunity to force
someone to attest to that.  I suggest eliminating this requirement.

6e.  Panelists should be selected by a true random process.  It should
not be possible for a complainer to stack the deck by picking a panelist.
The current rules permit the Panel to be picked based on "the identity
of the parties".  The Panel should be picked independently of the
identity of the parties.  The only consideration should be that the
Panelists speak a language in common with the Parties (or with the
Responder, if the two Parties have no language in common).

10.  Add a new general power.  Panels should have the power to
investigate a complaint on their own.  E.g. they may visit the web
site of the alleged infringer, query databases or search engines about
either Party, etc.  This is particularly needed if the Respondent does
not respond -- perhaps because they are incommunicado for twenty days.
Panels should have no requirement to investigate, but should be
permitted to do so at their own discretion.  Actually, in cases where
there is no Response, perhaps Panels *should* have a duty to at least
make a minimal investigation of the allegations.  The Panel should
certainly not take the allegations as gospel, which many courts do
if nobody responds.  This is not a court.

15a.  The Panel can also use information not submitted by the Parties,
to decide the complaint, if it includes that information in its
published record of the case.  This would include information it has
turned up from its own investigations, or its general knowledge, or
specific knowledge about domain name issues.

16b.  The Panel should not have the power to seal or close its
decision, in part or in whole.  All decisions must be published,
without exception.  Secret law is an abomination.

19.  The rules should set a minimum fee, perhaps US$5000, to
discourage frivolous complaints.

19a.  It's not clear who decides whether it's decided by a 1-member or
a 3-member panel.  There seem to be three cases, but this paragraph
only covers two:

Complainant	Respondent	Refund
3-person	---		none
1-person	1-person	diff between 3 and 1
1-person	3-person	half of 3-person fee

You might say here that there's a "no refund" case too...

*** Wording limits:

I suggest that complaints be limited to 1000 words per domain name;
2000 in a response; 2000 in a panel decision, 4000 in a dissenting
opinion.  As you can tell, I think the underdogs should get more 
words.

	John Gilmore