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

[<franks@xxxxxxxx>]

Mike,

In all fairness, I think you're being overly dramatic about the state of 
affairs in which we all find ourselves..  The UDRP "is cheap" when you bear in 
mind that the cost to unseat a true squatter from 150 or 300 typo domain 
variations is lower on a per-offence basis than unseating said squatter from 1 
single offending registration.  Wholesale squatting is cheaper to deal with via 
UDRP. All offenses are "alleged" until proven. I have won 13 UDRP decisions 
against over reaching entities so I have plenty of real-world experience 
relating to the desire of trademark holders to impugn the rights of generic 
registrants. These UDRP costs are distributed across millions of mark-holders.  
Surely mark holders should be obligated to pay "some cost" for trying to claim 
rights? I do not view those costs as onerously as you do. It is a subjective 
optic.

I think IP holders need to take a more pragmatic view of the battle they are 
fighting. Trademark violations in odd strings or namespaces without traffic are 
just not worth fighting.  Anybody with a can of spray-paint can violate Yahoo's 
trademark rights by running around the city and graffiti painting "Yahoo" on 
the side of buses. Do mark holders want to follow these millions of folks 
whitewashing the violations?

The answer IP stakeholders seem to be drilling to is "No, we want to stop 
selling paint"..  or "We want to have a say who can buy what paint". 

That's just not fair for the Fox to say to the Hens Mike. I see it as a 
dangerous potential for over-reaching, particularly when the most flagrant 
violations of trademark strings in the browser are given a free pass by this 
group. Every day Yahoo, Microsoft and Google "steal traffic" from 
trademark-holders and from me via toolbars and browser error search.  I see 
these groups in no better light than the squatters. Typing "Intel.xom" or .cpm 
and watching it resolve (via the browser) to an error search page monetized by 
Yahoo, or MSN or Firefox may be gentrified stealing, but it is stealing all the 
same. I don't view what we're discussing here so much like a battle for IP 
holders rights as a battle for ill-gotten traffic.  How can the large media 
companies unseat squatters to recover more error search via the browser?

You've been a touch dramatic here Mike so allow me:  "There is no freedom 
without justice and some of these changes smack of injustice to domain 
registrants and registrars". Comparing registrars to flea markets is just not a 
balanced viewpoint. Show some balance and I'll show some love.

Frank.


  ----- Original Message ----- 
  From: Mike Rodenbaugh 
  To: franks@xxxxxxxx ; Tim Ruiz 
  Cc: Rosette,Kristina ; gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W 
  Sent: Wednesday, May 16, 2007 11:14 AM
  Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting


  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 Meeting

   

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

   

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

    From: Tim Ruiz 

    To: Mike Rodenbaugh 

    Cc: Rosette,Kristina ; gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W 

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

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

     

    Mike,

     

    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. 



    Tim 






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




    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 #7:

    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.


    Tim 







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

    All, 
      
    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 ASCII/LDH TLDs 
and IDN TLDs. 

    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.

    Thanks 

    Kelly Smith 
    Intel Corporation 
    ________________________________ 

    From: 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 Meeting 

    All, 

    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.

    Kristina 

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