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

["Rosette, Kristina" <krosette@xxxxxxx>]

While I find this discussion very interesting, may I suggest that
everyone focus their respective energies on the outstanding work?


________________________________

        From: franks@xxxxxxxx [mailto:franks@xxxxxxxx] 
        Sent: Wednesday, May 16, 2007 7:21 PM
        To: Griffin, Lance; Mike Rodenbaugh; Tim Ruiz
        Cc: Rosette, Kristina; gnso-pro-wg@xxxxxxxxx; Smith,Kelly W
        Subject: [gnso-pro-wg] Revised Proposals Chart Based on Today's
Meeting
        Importance: High
        
        
        Lance, All..
         
        It's not my intention to be disrespectful or take matters
off-topic, but I think it's incredibly important for us all to take a
look at the larger machinations around addressing in order to shape
potential rules relating to naming.  
         
        We can do work within the scope, while at the same time being
cognizant of the impact relating to our actions on a larger scale.
Benign neglect of what happens in the web-browser does not solve the
problems we all face. 
         
        Lance, in the final analysis, your employer is one of the
biggest victims of the thieving I describe. Type : MickeyMouse.xom (or
.cpm) in your browser (as my daughter has 100 times) and watch what
happens. Ask yourself what is happening in the browsers of those aged
6-18 -- Where does this traffic ultimately go and who pawns off it by
diverting searches?  This chasing little turds in a sea of "cack" is
such a waste of resources (and payback).
         
        What exactly did we all  think happened in the browser if the
cybersquatters 
        didn't highlight the most blatant typos for us by registering
them? The traffic still flows to the keyword marketplaces powered by
Google or Microsoft via the browser, only there is no obvious way to
identify the infractions because to the user, the browser-error
experience is so benign.
         
        I do not support deliberate cybersquatting and this is not an
attempt to defend the undefendable or criticize the group, but pushing
to shape domain registration rules in a way that is harmful to those who
highlight the path to your most blatant problems (while creating a less
certain namespace for real entrepreneurs and registrars); is not
necessarily the best fix.
         
        Most sincerely,
         
        Frank.
         
         
         
        ----- Original Message ----- 

                From: Griffin, Lance <mailto:Lance.Griffin@xxxxxxxxxx>  
                To: franks@xxxxxxxx ; Mike Rodenbaugh
<mailto:mxr@xxxxxxxxxxxxx>  ; Tim Ruiz <mailto:tim@xxxxxxxxxxx>  
                Cc: Rosette,Kristina <mailto:krosette@xxxxxxx>  ;
gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W <mailto:kelly.w.smith@xxxxxxxxx>  
                Sent: Wednesday, May 16, 2007 4:37 PM
                Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based
on Today's Meeting
                
                
                Are the subjects of Google Adsense and issues relating
to key word in the SOW? 

________________________________

                From: owner-gnso-pro-wg@xxxxxxxxx
[mailto:owner-gnso-pro-wg@xxxxxxxxx] On Behalf Of franks@xxxxxxxx
                Sent: Wednesday, May 16, 2007 9:59 AM
                To: Mike Rodenbaugh; Tim Ruiz
                Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx; Smith,Kelly
W
                Subject: Re: [gnso-pro-wg] Revised Proposals Chart Based
on Today's Meeting
                
                
                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 <mailto:mxr@xxxxxxxxxxxxx>

                        To: franks@xxxxxxxx ; Tim Ruiz
<mailto:tim@xxxxxxxxxxx>  
                        Cc: Rosette,Kristina <mailto:krosette@xxxxxxx>
; gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W <mailto:kelly.w.smith@xxxxxxxxx>

                        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 <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

                                 

                                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 <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>>