Reconsideration Request 00-5 Recommendation of the Committee Date: May 22, 2000

From: Andrew McLaughlin
Sent: Monday, May 22, 2000 5:49 PM
To: James K. Trefil; Adam Corelli
Cc: Hans Kraaijenbrink; Ken Fockler
Subject: Reconsideration Request 00-5

Dear James: The ICANN Board's Reconsideration Committee has made a recommendation on your reconsideration request, submitted on behalf of Adam Corelli on 11 May, 2000. The recommendation will be considered by the full Board at its next teleconference meeting.

Let me know if you have any questions.

Best regards,

--Andrew

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Reconsideration Committee Recommendation for RR 00-5

[RC 00-5] The Reconsideration Committee received on 11 May, 2000, a request for reconsideration from James Trefil, submitted on behalf of Adam Corelli. Mr. Correlli is the registrant of a domain name which was the subject of a recent administrative proceeding pursuant to ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP). The proceeding was handled by the National Arbitration Forum, which posted the resulting administrative decision on April 12, 2000 (NAF File No. FA0094235). The decision has been posted by the National Arbitration Forum at http://www.arbforum.com/domains/decisions/94235.htm. Links to the decision have been posted on the ICANN site on the various lists of UDRP proceedings and decisions, such as the List of Proceedings Arranged by Commencement Date; the List of Proceedings Arranged by Proceeding Number; and the List of Proceedings Arranged by Domain Name.

Unhappy with the outcome of the administrative decision, Mr. Corelli exercised his right under Paragraph 4(k) of the Uniform Dispute Resolution Policy to challenge the result by filing a lawsuit in U.S. federal court (Corelli v. T.M. Pacific Co., United States District Court for the Eastern District of Virginia, Civ. Action No. 00-701-A, filed April 27, 2000). Quite understandably, Mr. Corelli is not pleased with the decision's determination of bad faith in his registration and use of the domain name.

In his reconsideration request, Mr. Corelli asks that the ICANN Board reconsider the decision to maintain a link to the administrative decision on the ICANN website. [At one point, Mr. Corelli states that ICANN continues to "post" the NAF decision "on its web site". The Committee notes that this characterization is mistaken, as the administrative decisions are posted by the dispute resolution providers themselves, and simply linked from the ICANN site. Likewise, Mr. Corelli mistakenly characterizes the decision as being "ICA[N]N's"; rather, the decision has been rendered by the National Arbitration Forum, an approved dispute resolution provider.]

Specifically, Mr. Corelli asks "that the link to the text of the opinion be removed from ICANN's web site, and that the status of the dispute be shown as 'judicial determination pending.'" Moreover, "[i]f removing the link to the opinion is contrary to an existing ICANN policy, Mr. Corelli requests that such policy be reconsidered and modified."

The Committee notes that the Uniform Dispute Resolution Policy requires dispute resolution providers to publish "all decisions under this Policy . . . in full over the Internet," except when the Panel determines to redact portions:

4.j. Notification and Publication. The Provider shall notify us of any decision made by an Administrative Panel with respect to a domain name you have registered with us. All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.

Likewise, the Rules for the UDRP provide:

16.(b) Except if the Panel determines otherwise (see Paragraph 4(j) of the Policy), the Provider shall publish the full decision and the date of its implementation on a publicly accessible web site. In any event, the portion of any decision determining a complaint to have been brought in bad faith (see Paragraph 15(e) of these Rules) shall be published.

This policy was adopted after a lengthy and open consensus-building process. Many individuals expressed a strong view that the administrative dispute resolution providers should be required to operate transparently by posting all of their decisions on the Internet. The publication of all opinions allows the broad community of interested and/or affected individuals to analyze and evaluate the results of decisions, the strength and validity of the panelists' reasoning, etc. In effect, the mandatory posting rule permits any individual to form an independent judgment about how well the dispute resolution providers and panelists are doing their appointed tasks. Such transparency and openness is essential: the UDRP is in its infancy, and public scrutiny and input will be necessary if ICANN and the dispute resolution providers are to properly evaluate and make improvements to the policy.

While the Policy and Rules apply only to registrars and dispute resolution providers, the ICANN staff has provided regularly updated web pages that index administrative proceedings from all approved dispute resolution providers, including information known to ICANN (the existence of the dispute, along with a link to or notation of the resolution). The ICANN tables do not include notations relating to subsequent litigation, because the ICANN staff is simply too small and too overstretched to monitor and verify the hundreds of legal disputes that will surely ensue. The Reconsideration Committee finds the ICANN staff indices to be a valuable service for the benefit of interested and affected parties, and believes that ICANN should continue to provide the listed information in full.

Moreover, the Committee observes that the administration decision which Mr. Corelli objects to is merely an administrative decision, setting forth the panelist's view of the facts, along with her opinions. While Mr. Corelli is certainly correct that his U.S. federal lawsuit may eventually render the decision moot, the suit does not alter the fact that an administrative proceeding was filed and that it produced a decision. The principles of openness and transparency that underlie the UDRP's publication rule argue strongly in favor of continuing the publication rule.

Accordingly, the Reconsideration Committee recommends that the Board reject Mr. Corelli's requests in RR 00-5. The Committee urges Messrs. Corelli and Trefil to advocate their views on the publication rule to the broader community during ICANN's review of the UDRP later this year.