Paperless UDRP proposal

[George Kirikos <gkirikos@xxxxxxxxx>]

Hello,

As per our prior comments when this topic came up before:

http://www.circleid.com/posts/20090108_wipo_proposal_paperless_udrp/

we are generally in favour of the motivation behind the proposal. However, it 
might need to be tweaked a little, in order to improve safeguards for 
registrants as we move more towards reducing paper.

My concern is that whatever form of notice takes place, the goal should be that 
registrants have ACTUAL notice of the complaint, and sufficient time to prepare 
a defence. It's very easy to miss an email, given 90%+ of all emails are spam. 
There are already international treaties like the Hague Service Convention on 
this topic, so one need not reinvent the wheel completely.

One possible way to assist in ensuring actual notice is to optionally permit 
registrants to store at their registrar (and optionally display in WHOIS) the 
name and contact information of their legal counsel, who would then also 
receive copies of the UDRP notice. The more people "in the loop" so to speak, 
the greater the odds of actual notice. This is also a way for legitimate and 
responsible organizations owning domain names to signal and whitelist 
themselves, separating themselves from fly-by-night operations who would never 
list a legal counsel and who would typically never respond to a UDRP. Such a 
database of legal contacts could conceivably be created and maintained by 
WIPO/NAF or by ICANN, but it would be simplest to mandate it for registrars as 
it would be a simple addition to the WHOIS on an opt-in basis. This would be 
similar to how ARIN and other IP address WHOIS databases often show "abuse" 
contacts, to assist law enforcement and civil
 complainants.

In Ontario, Canada, the Rules of Civil Procedure (Rule 18.01)

http://www.canlii.org/on/laws/regu/1990r.194/20080821/whole.html

give a defendant up to 60 days to respond to a complaint, compared with the 20 
days in UDRP. I believe this to be typical. If the UDRP allowed the time to 
reply to vary depending on the age of the domain name (i.e. difference between 
the current date and the creation date), that might be a suitable compromise. A 
registrant of a domain that is 10 years old would be able to take a 3 week 
vacation without worrying that someone might have filed a UDRP during that 
time. Whereas a freshly cybersquatted domain name that is less than 1 year old 
would be subject to a shorter time to respond. This also provides incentive for 
complainants to file UDRPs in a timely manner, rather than waiting years to do 
so. If a domain name is 5 or 10 years old, there is not the same sense of 
urgency as a freshly registered domain name. With the growing trend of 
frivolous UDRPs being filed in attempts to reverse hijack valuable domain 
names, it is clear that these safeguards are
 required to ensure due process. Too often complainants use the UDRP as a cheap 
lottery ticket, hoping they can seize a valuable domain name at low cost in a 
default case because the registrant did not have enough time to prepare a 
defence, or received no actual notice of a complaint. One simple policy might 
be to allow 5 extra days to respond for every year that a domain name has been 
registered (so a 10 year old domain would be entitled to 70 days (20 + 10x5) to 
respond).

In the real world, if one owned a house and the garden was left unkempt, 
neighbours or the city government would not be able to seize it via a process 
that lasted only 20 days. With domain names being the internet equivalent of 
"real estate", and indeed with many domain names being more valuable than 
average real-world houses, it is clear that similar levels of due process as to 
real-world real estate are essential to protect domain name registrants. 
Real-world property owners can safely take 3-week vacations without worrying 
about losing their property. Responsible virtual property owners (i.e. domain 
name registrants) should have the same protection.

As we move towards an electronic system, thought should also be given to 
ensuring that submissions are in easy-to-use standardized formats, e.g. PDF 
(not MS Word). Even better would be to have a markup-language like XML (perhaps 
call it UDRPML?) similar to the electronic submissions in the EDGAR system

http://sec.gov/edgar/aboutedgar.htm

where documents are filed in XBRL, FPML for derivatives transactions

http://www.fpml.org/

and so on. If UDRP decisions were similarly available in UDRPML, this would 
permit academics to perform studies like those of Professor Geist

http://www.udrpinfo.com/

more easily and at lower cost. Other legal scholars and service providers would 
also appreciate a standardized format to simplify analysis, redistribution and 
reformatting.

Lastly, the UDRP providers should be required to publish notices of ALL 
complaints via standardized machine-readable formats (XML, RSS, FTP, e-mail, 
etc.) at the same time that the notice of the complaint is sent to the 
respondent. Similar to PACER,

http://pacer.psc.uscourts.gov/

which has been very successful in the USA, this would permit 3rd parties to 
aggregate all complaint data as early as possible. UDRP providers do list cases 
on their websites currently, but they do so in wildly varying formats and in a 
haphazard fashion. Websites like Justia.com aggregate public court case data 
for free. Private services like Westlaw.com do the same for a fee. Having UDRP 
data available in a standardized format would:

(1) allow 3rd party aggregators to scrape the data in an efficient and timely 
manner
(2) allow for the development of complaint-monitoring services that permit 
proactive domain name registrants, attorneys, journalists and the public to 
monitor all cases, or the subset of cases that are of interest to them (e.g. 
cases involving their own companies, cases involving their own clients). These 
complaint monitoring services would increase the likelihood of ACTUAL NOTICE 
for domain name registrants, reducing default cases.
(3) allow for better academic research, including independent analysis of 
trends across all UDRP providers, and
(4) allow for more informed debate on future changes to UDRP and ICANN policy, 
due to superior data, statistics and research.

Sincerely,

George Kirikos
President
Leap of Faith Financial Services Inc.
http://www.leap.com/