Continued opposition to the addition of new UDRP providers

[George Kirikos <gkirikos@xxxxxxxxx>]

Comments on: Revised Proposal of the ACDR to Serve as a UDRP Dispute Resolution 
Service Provider

Submitted By: George Kirikos
Company: Leap of Faith Financial Services Inc.
Company URL: http://www.leap.com/
Date: March 1, 2013

As per our previously submitted comments:

http://forum.icann.org/lists/acdr-proposal/msg00000.html

we continue to oppose the addition of new UDRP providers, until such time as 
there is a formal review of the UDRP that brings all providers under a standard 
contract with ICANN, one with third-party beneficiary rights (to allow 
enforcement by registrants in case of breach, in the event ICANN itself ignores 
breaches), thereby increasing accountability. Furthermore, there must be 
fundamental changes to the rules to enhance due process protections for 
registrants.

In its past summary of comments in 2010:

http://forum.icann.org/lists/acdr-proposal/msg00007.html

Samantha Eisner, Senior Counsel for ICANN, stated that:

".... ICANN has been undertaking a process to review its relationships with 
UDRP providers, and that review is ongoing."

To our knowledge, that has not brought about any change to the status quo. 
Despite panelists at NAF having been caught systematically copying and pasting 
nonsense into decisions:

http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udrp_decisions/

ICANN sat on their hands and did nothing. Attorney Zak Muscovitch has raised 
important concerns about how a disproportionate number of cases are handled by 
a small number of panelists:

http://www.dnattorney.com/study.shtml

rather than being rotated randomly amongst all panelists. NAF has been caught 
revising past UDRP decisions, with no transparent audit trail:

http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/

NAF, of course, faced a lawsuit by the Minnesota Attorney General's office and 
agreed to cease arbitrating credit card disputes:

http://en.wikipedia.org/wiki/National_Arbitration_Forum

yet ICANN put their heads in the sand and didn't think to investigate 
further. Indeed, ICANN has rewarded NAF, making them the first URS provider for 
new gTLDs. The URS would have even worse due process protections for 
registrants than the UDRP.

Approving the ACDR proposal would simply encourage even more forum shopping by 
complainants. One "quick fix" that would reduce forum shopping would be to 
allow domain name registrants (i.e. respondents in disputes) the ability to 
pre-select the Dispute Resolution Provider for UDRP cases. This can be done 
transparently, via an extra field in the WHOIS. For example, my company owns 
School.com. We could add a line in the WHOIS for School.com stating that, in 
the event of a UDRP, the relevant provider shall be WIPO (or another provider 
of our choice). Registrars would ignore complaints that do not originate from 
the dispute resolution provider specified by the registrant. Making this simple 
change would reduce the current "race to the bottom" amongst dispute resolution 
providers attempting to attract complainants to their forum, and instead would 
incentivize providers to consider the needs of registrants/respondents.

Of course, we've brought forth a number of other ideas in the past, such as 
making the response time for a UDRP be a function of the age of the domain 
name, to create a more level playing field between complainants and 
respondents. It is unreasonable that a complainant can take 5 or 10 years to 
bring a complaint, but that a respondent has less than 3 weeks to find a 
lawyer, gather evidence and formulate a complex response, with the clock 
ticking immediately, rather than starting when the respondent has ACTUAL notice 
of the complaint (e.g. a registrant may be on vacation when a complaint is 
filed). A formula such as:

Response time (in days) =  30 + 5  x (age of domain in years) 

would be more reasonable. A registrant of a 5 year old domain name would have 
55 days to respond, under this formula. Indeed, the principle of laches or a 
statute of limitations should bar certain complaints entirely.

We've also suggested that all UDRP decisions be published in machine-readable 
XML formats, in order to reduce the costs of and thereby encourage further 
academic studies. Past academic studies by Professor Michael Geist have 
documented forum shopping and pro-complainant bias:

http://aix1.uottawa.ca/~geist/geistudrp.pdf

http://aix1.uottawa.ca/~geist/fairupdate.pdf

Lowering the costs of analyzing the underlying data would permit more studies, 
as well as make it easier to update those studies frequently due to automation.

Domain names are valuable property. The UDRP was intended to address clear cut 
cases of cybersquatting, however it has been twisted and exploited to encourage 
reverse domain name hijacking attempts that are brought with impunity against 
innocent registrants of common dictionary words and other coveted domain names. 
Dispute resolution has become big business, and the way to grow that business 
is to have an ever-expanding definition of "crime." As Ayn Rand cautioned in 
the dystopian novel "Atlas Shrugged"

"There's no way to rule innocent men. The only power any government has is the 
power to crack down on criminals. Well, when there aren't enough criminals one 
makes them. One declares so many things to be a crime that it becomes 
impossible for men to live without breaking laws. Who wants a nation of 
law-abiding citizens? What's there in that for anyone? But just pass the kind 
of laws that can neither be observed nor enforced or objectively interpreted – 
and you create a nation of law-breakers – and then you cash in on guilt."


When panelists and dispute resolution providers have a financial incentive to 
expand the definition of "cybersquatting" to embrace scenarios far removed from 
those considered by the framers of the UDRP and from the relevant laws of 
nations, the system is broken and needs to be fixed. 

In conclusion, ICANN should set aside the revised ACDR proposal, until broader 
reforms have been adopted.

Sincerely,

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