EDC comments

[sbarclay@xxxxxxxxxx]

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.?"?

Please stop making it easier for people to steal domain names. You
must enforce reverse high-jacking penalties when reverse high-jacking is
determined or there is no deterrent to filing marginal complaints. To
date your reverse high-jacking penalties have been non-existent. This
reality is pathetic and very unfortunate and will only lead to more
frivolous applications.
Sincerely,
Scott B.



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