Proposal represents an invitation to large-scale assembly line Reverse Domain Name Hijacking

[George Kirikos <gkirikos@xxxxxxxxx>]

Hello,

The CAC proposal represents an invitation to large-scale assembly line Reverse 
Domain Name Hijacking, and a further erosion of the rights of registrants to 
due process.

UDRP providers are supposed to be neutral, but the pro-complainant bias is 
evident in the proposal.

For example, Rule 15(e) of the UDRP states:

http://www.icann.org/en/udrp/udrp-rules-24oct99.htm

"If after considering the submissions the Panel finds that the complaint was 
brought in bad faith, for example in an attempt at Reverse Domain Name 
Hijacking or was brought primarily to harass the domain-name holder, the Panel 
shall declare in its decision that the complaint was brought in bad faith and 
constitutes an abuse of the administrative proceeding."

This is supposed to happen even in cases where there is no response by the 
domain name registrant. However, pages 14 and 15 of the CAC draft decision 
template leaves out that possibility entirely:

http://www.icann.org/en/dndr/udrp/cac-proposed-supplemental-rules-11nov09-en.pdf

It even permits the complainant to *write* the "facts" of the case (section 4 
of page 15 of the above document). Panelists are simply left to work the 
assembly line, checking boxes of "yes" or "no", with a heavy bias towards "yes".

The pricing schedule even permits negotiation between the complainants (section 
g of page 10) and CAC over fees for getting bulk discounts for bringing 
multiple complaints to their forum in a calendar year. This is further evidence 
of bias --- real courts do not provide quantity discounts to encourage forum 
shopping.

The facts are that the amount of cybersquatting has been going down 
substantially, as monetization of TM domain names via PPC and other methods has 
been substantially eroded as Yahoo, Google and other advertising networks 
improved the policing of their systems. This has resulted in a decrease in UDRP 
cases and even TM lawsuits.

Instead of rejoicing at this positive outcome, UDRP providers resent the loss 
of business. In order to combat that loss of business, we see the 
ever-expanding definition of "cybersquatting" by them. NAF openly admitted this 
in their IRT comments:

http://forum.icann.org/lists/irt-final-report/msg00178.html

"Panelists have taken the opportunity, over time, to agree with those
complainants and broaden the scope of the UDRP, but it started out as
a mechanism only for clear cut cases of cybersquatting."

Panelists are supposed to be unbiased and neutral, not opportunists who stretch 
the rules in order that more and more marginal cases are brought through their 
doors. UDRP was designed for clear-cut cases, period.

It is high time that ICANN evaluated the UDRP providers and sought public 
comment as to whether they have been neutral. This should include contacting 
participants (complainants *and* respondents) of past cases, as well as domain 
name registrants, via mandatory email through registrars educating them as to 
the implications of policy changes.

The Wall Street Journal had an important article demonstrating how providers 
like NAF have been in turmoil:

http://online.wsj.com/article/SB125548128115183913.html?mod=googlenews_wsj

"Banks "don't need the taint that comes with mandatory arbitration."

"While telling consumers that it was an impartial arbitrator, NAF
worked closely with creditors, the regulator claimed, including
drafting claims against consumers."

"Former arbitrators, a congressional subcommittee, consumers and
government suits are now alleging that NAF has been systematically
ruling against consumers for years."

"A congressional subcommittee, which began an investigation last year
to study the fairness of mandatory arbitration, concluded in July that
the current arbitration system is "ripe for abuse." Arbitration, as
"operated by NAF, does not provide protection for those consumers,"
the committee said."

"Before that case, she had ruled in favor of credit-card companies 18
consecutive times, she told the committee. She says she finished
several pending NAF cases after she ruled for the card holder, but
then wasn't given more cases. The official reason the NAF gave for
canceling more work was scheduling conflicts. But Ms. Bartholet said
in an interview that an NAF manager told her she was likely removed
because she ruled for the debtor."

In conclusion, these kinds of proposals by the UDRP providers should be 
rejected, and represent a perversion of the system of justice that domain name 
registrants rely upon. It is clear they were created only in consultation with 
complainants, and not with normal domain registrants in the loop. The right to 
due process demands a higher standard than that shown to date.

ICANN staff and the GNSO should prepare an issues report, and perhaps fund 
independent scholarly research like that conducted by Professor Michael Geist 
in the past:

http://www.udrpinfo.com/

To eliminate forum shopping, cases should be randomized between all providers. 
Indeed, eResolution, a past provider, left the business because other providers 
were tilting the rules more and more towards complainants:

http://www.theregister.co.uk/2001/12/04/eresolution_quits_domain_arbitration/

"It is but an open secret that lawyers advising their clients in domain name 
cases have no scruples about quoting the figures and saying that the odds are 
better with a given provider."

The emphasis in the future should be on accurate and verified WHOIS, to allow 
disputes to be handled in the court system, and to also reduce the amount of 
abuse that happens on "throwaway" domains registered with fake or anonymous 
WHOIS. If *both* parties are interested in ADR, they can both opt-in to use 
arbitration providers, however it should not be forced upon domain registrants. 
Real courts would not tolerate the bias evident in these kinds of proposals 
from pro-complainant UDRP providers. More and more we see the system abused, as 
a method of buying a lottery ticket in order to reverse hijack domain names 
from legitimate registrants. CAC simply proposes to make that reverse hijacking 
faster, cheaper, and with even less due process than exists today.

Sincerely,

George Kirikos
http://www.leap.com/