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RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting

  • To: <franks@xxxxxxxx>, "Tim Ruiz" <tim@xxxxxxxxxxx>
  • Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting
  • From: "Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>
  • Date: Wed, 16 May 2007 09:14:45 -0700

I think IP owners generally do not want the "privilege" of "defensive
protection mechanisms", but are essentially forced to use them because
the UDRP is so inefficient.  It is extremely far from 'cost effective'
since it costs under $100 to register a name and put up an infringing
website which makes money every day, yet costs many thousands of dollars
and many months to recover that name through the UDRP (without hope of
monetary damages).  Thus the squatters win every time with a nice ROI.  


Registries and registrars, by enabling massive infringement at low cost,
ought to take steps to minimize abusive registrations at their own cost,
other than trying to sell "defensive protection mechanisms" to brand
owners.  Every other business has had to provide complaint mechanisms at
their own cost, even though we would love to charge complaining parties,
that is just not acceptable to those complaining parties....
Registration providers are like flea markets, selling cheap space from
which anyone can sell anything, including things that blatantly infringe
rights of others.  Long ago, courts held that flea markets could be
contributorily liable for doing that, under certain circumstances.  I
imagine courts will begin to draw the same conclusion about the domain
space, since registration providers are unwilling to take any
responsibility themselves.  


This problem of course is bigger than just the registration providers,
Yahoo! and other businesses also provide tools for good uses that are
too often used to infringe rights of others.  Contributory liability
issues for those other businesses generally have been addressed by the
DMCA in the US, and industry standards following passage of that law.
That would provide a nice model to absolve registration authorities of
any liability if they commit to act quickly and reasonably in response
to sworn complaints.  Perhaps this WG is not the right forum for this
discussion, because such a mechanism should apply to all TLDs, not just
new ones.  But it is a discussion that needs to be had, ideally before a
lot of time and energy is wasted by business and registration providers
to fight this in other fora.  Unfortunately the registration providers
benefit every day from existing policy, so I am not optimistic that such
discussion will happen soon or meaningfully, but I will continue to
press for it.


Mike Rodenbaugh

Sr. Legal Director

Yahoo! Inc.


NOTICE:  This communication is confidential and may be protected by
attorney-client and/or work product privilege.  If you are not the
intended recipient, please notify me by reply, and delete this
communication and any attachments.


From: franks@xxxxxxxx [mailto:franks@xxxxxxxx] 
Sent: Wednesday, May 16, 2007 8:43 AM
To: Tim Ruiz; Mike Rodenbaugh
Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx; Smith,Kelly W
Subject: Re: [gnso-pro-wg] Revised Proposals Chart Based on Today's


Having watched this process quietly,  I coldn't agree more with your
statement Tim..


        ----- Original Message ----- 

        From: Tim Ruiz <mailto:tim@xxxxxxxxxxx>  

        To: Mike Rodenbaugh <mailto:mxr@xxxxxxxxxxxxx>  

        Cc: Rosette,Kristina <mailto:krosette@xxxxxxx>  ;
gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W <mailto:kelly.w.smith@xxxxxxxxx>  

        Sent: Wednesday, May 16, 2007 9:38 AM

        Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on
Today's Meeting




        While it may seem that the world is ruled by IP interests, I
would like to think that isn't true (although this WG may be). But maybe
I'm just an idealist. The fact of the matter is that there is a
difference between the privilege of *defensively* protecting rights and
the mechanisms that resolve disputes after the fact. The UDRP is a very
cost effective way to do the latter.


        The privilege of being granted defensive protection mechanisms
not provided for in local or national law should not come at everyone
elses expense. If the legislative process, or some or other regulatory
process can be gamed to provide for that, so be it. I guess we'll meet
you on the Hill. But as ICANN repeatedly claims, it is not a regulatory
body, does not control prices, and the #7 you propose is not within
ICANN's scope to mandate by their own repeated claims. The recent
attempts by registrars and others in regards to the current registry
agreements should make that clear.


        And why should registries be concerned with improving your
bottom line at the expense of their own. That argument just doesn't hold
water. You are the IP holder. The cost of protecting your IP is yours. 



        -------- Original Message --------
        Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on
        From: "Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>
        Date: Tue, May 15, 2007 7:58 pm
        To: "Tim Ruiz" <tim@xxxxxxxxxxx>,  "Smith, Kelly W"
        Cc: "Rosette, Kristina" <krosette@xxxxxxx>,

        Currently, as far as I know, registries and registrars are the
only businesses in the world who purport to charge any other entity to
complain that the first party is or likely will be infringing or
materially contributing to the infringement of the second party's legal
rights.  That needs to stop, and eventually logic will prevail and it
will stop, through policy, legislation and/or litigation.  The hope was
that ICANN stakeholders could agree to some binding policy rather than
pursue other avenues.

        As a potential political compromise up to this point, realizing
how long the registries and registrars have been benefiting so nicely
from this reality, I have been willing to accept that maybe they could
seek to recover up to half of their costs of this from complaining
parties.  This I thought generous, and despite the fact that every other
business in the world must provide these complaint mechanisms as a cost
of doing business, and accordingly charge their customers more.
Registries and registrars should do that too, their customers benefit
from a cleaner domainspace and so do the registration providers.  These
businesses certainly should not be arguing that rights protection
mechanisms should be a profit center for themselves.  They even seem
unwilling to agree to a general policy principle that their pricing
should be reasonably based on their costs?  

        Unreasonable, unjustified costs will lead to less adoption of
any rights protection mechanism, therefore to more abusive
registrations.  Abusive registrations have high social and financial
cost to the public and impose higher litigation costs upon businesses.
Registries and registrars need to accept more of the burden of
minimizing abusive registrations which they enable and profit from, and
need to spread that cost among their registrants, rather than seeking to
profit from rights protection mechanisms.

        I support this as principle/policy stmt #7:

        The fees charged by a gTLD for participation in its RPM MUST be
reasonably close to their actual or expected costs.

        I also support Kelly and Avri's other principles as stated.

        Mike Rodenbaugh

        Sr. Legal Director

        Yahoo! Inc.

        NOTICE:  This communication is confidential and may be protected
by attorney-client and/or work product privilege.  If you are not the
intended recipient, please notify me by reply, and delete this
communication and any attachments.


        From: owner-gnso-pro-wg@xxxxxxxxx
[mailto:owner-gnso-pro-wg@xxxxxxxxx] On Behalf Of Tim Ruiz
        Sent: Tuesday, May 15, 2007 1:51 PM
        To: Smith,Kelly W
        Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx
        Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on
Today's Meeting

        Currently, Registries are not required to justify most of their
price increases, and in fact, make no justification for their existing
prices whatsoever. I would be interested in knowing what basis or
precedent there is for any holder of legal rights of any kind to expect
special treatment and require justification of or a basis for Registry
pricing from new gTLD entrants. I propose this alternative language for

        gTLD registry operators MAY charge fees for participation in its
RPM. The amount of such fees MUST be at the gTLD registry operator's
sole discretion.

        Also, many of the suggested *principles* (which are actually
proposed policies) use the phrase Prior Rights. The SOW uses the phrase
legal rights. There is a considerable difference. The latter does not,
IMHO, refer solely to the rights of TM holders, famous names, etc.
Whereas the implications of Prior Rights as is used in most of these
policy statements implies that distinction. I propose that all suggested
principles/policy statements use the phrase Legal Rights instead of
Prior Rights to be consistent with our SOW.



        -------- Original Message --------
        Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on
        From: "Smith, Kelly W" <kelly.w.smith@xxxxxxxxx>
        Date: Tue, May 15, 2007 3:13 pm
        To: "Rosette,  Kristina" <krosette@xxxxxxx>,

        I propose the following alternative language for principle #7
(new language in red): 
        The fees charged by a gTLD for participation in its RPM SHOULD
be reasonable and each gTLD applicant MUST identify in its application
the basis of its fee calculation. on which it anticipates charging fees.

        I propose the following language regarding validation (revised
from #8, which we did not agree on).  If we cannot reach agreement, I
believe this at least has support:

        The Prior Rights on which a party bases its participation and
seeks to protect in an RPM SHOULD be subject to actual validation, at
least if the validity of such rights is challenged validated.  

        I propose the following new principle (based on the questionable
inclusion of U.S. registrations as a rights basis in the .asia launch),
and am happy to hear suggestions regarding alternative language:

        To the extent a gTLD is intended for/targeted to a particular
geographic region, the Prior Right on which a rights owner bases its
participation in the RPM SHOULD originate from the laws of a country in
that region.

        Finally I agree with Avri's comments concerning applicability to
IDNs, and perhaps we can use this language, as the final principle:

        The aforementioned principles should equally apply to both

        Kristina, let me know if you'd like me to reflect these in a
further redline, or if you'll be collecting everyone's comments into a
new version before the call tomorrow.


        Kelly Smith 
        Intel Corporation 

        From: owner-gnso-pro-wg@xxxxxxxxx
[mailto:owner-gnso-pro-wg@xxxxxxxxx <mailto:owner-gnso-pro-wg@xxxxxxxxx>
] On Behalf Of Rosette, Kristina 
        Sent: May 14, 2007 2:29 PM 
        To: gnso-pro-wg@xxxxxxxxx 
        Subject: [gnso-pro-wg] Revised Proposals Chart Based on Today's


        Attached is an updated proposals chart that reflects the
discussion today.  I have also attached a redline.  As you will see, I
have indicated the current level of support (based on my notes) for the
proposals we discussed and as we discussed revising them.  Please review
them and let me know ASAP if I have mischaracterized the "revised"
proposal and/or the level of support.  

        Tim, once you've had a chance to review, would you please post
whether any of these specific points could be used instead of your
principles 1-6?  I will create a consolidated proposals chart shortly
before our call on Wednesday.


        <<Redline PRO WG Proposals Chart.DOC>> <<05142007 PRO WG
Proposals Chart.DOC>> 

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