[Internet Policy] Why is ISOC's PIR promoting a private global copyright censorship court for domains?

["Dave Farber" <dave () farber net>]

---------- Forwarded message ---------
From: Brandt Dainow <brandt.dainow () gmail com>
Date: Thu, Feb 16, 2017 at 12:35 PM
Subject: Re: [Internet Policy] Why is ISOC's PIR promoting a private global
copyright censorship court for domains?
To: Richard Hill <rhill () hill-a ch>, Martin J. Dürst <duerst () it aoyama ac jp>,
<internetpolicy () elists isoc org>


The cost for a 3-person panel is €4,000.  If the defender wants a 3-person
panel, they have to pay half that, and the complainant the other half.
However, I've done plenty of different online disputes, and my experience
is that in matters like this, large companies will overwhelm their
opponents with lawyers.  This is about copyright, which gets very legal
very fast, so unless you can afford your own defence lawyers, you just get
rolled over by legal documents you can't even understand, let alone respond
to.  All sorts of tricks can be used.  A very simple one is to produce a
thousand pages of supporting documentation.  You won't stand a chance of
defending yourself against large corporations without legal expenses, and
truth alone won't be sufficient, it never is.

I am firmly convinced this is an example of "mission creep" - the job of
domain name management is to manage allocation of, and disputes over,
ownership of domain names.  It is not the job of domain name management to
have any say in what those domain names are used for.  This is like the US
DMV deciding it is going to take your ownership of a car off you if they
don't like what you do.  We have courts, with complex procedures developed
over centuries for the adjudication of issues like this.  Those complex
procedures evolved through trial and error because judging this sort of
stuff fairly is not simple.  This rising trend of private judicial systems
in commerce is deeply disturbing - this is how democracies get destroyed.

Regards,
Brandt Dainow
brandt.dainow () gmail com

https://www.researchgate.net/profile/Brandt_Dainow
http://www.imediaconnection.com/profiles/brandt.dainow

-----Original Message-----
From: Richard Hill [mailto:rhill () hill-a ch]
Sent: 16 February 2017 13:50
To: 'Martin J. Dürst'; 'Brandt Dainow'
Cc: internetpolicy () elists isoc org
Subject: RE: [Internet Policy] Why is ISOC's PIR promoting a private global
copyright censorship court for domains?

Please see below.

Thanks and best,
Richard

> -----Original Message-----
> From: Martin J. D rst [mailto:duerst () it aoyama ac jp]
> Sent: Thursday, February 16, 2017 07:09
> To: Richard Hill; 'Brandt Dainow'
> Cc: internetpolicy () elists isoc org
> Subject: Re: [Internet Policy] Why is ISOC's PIR promoting a private
> global copyright censorship court for domains?
>
> On 2017/02/14 23:10, Richard Hill wrote:
> > Dear Brandt,
>
> > I don t disagree with your comments below, except for one point.  If
> the new procedure is similar to the UDRP, then the cost for the
> defendant (respondent) is insignificant compared to the cost of
> defending against a copyright infringement procedure filed in a
> national court (especially if it is filed in a US court).
>
> Any actual figures (ballpark would be okay)?

The actual figures for the costs of filing a UDRP are zero for the
Respondent (win or lose), unless the Respondent asks for a three-member
panel, and 1500 for the Complainant (win or lose) for a one-member WIPO
panel, see:

 http://www.wipo.int/amc/en/domains/fees/

The cost of filing a trademark infringement complaint in a national court
will vary widely depending on the country and on whether the complainant
asks for damages.  In Geneva, the cost will vary from CHF 200 to CHF 50'000
if no damages are requested; they will be around CHF 1000 if damages of
10'000 are requested, and around CHF 10'000 if damages of 100'000 are
requested, see art. 17 ff. at:

  http://www.geneve.ch/legislation/rsg/f/s/rsg_E1_05P10.html

The Complainant pays the costs up front, but the Court orders the loser to
pay the fees.  So the Respondent in a national court might wind up paying
the filing fees (and also part of the Complainant's lawyer's fees, see
below).

To the above, you have to add the lawyer's fees for preparing the brief.
The briefs in the UDRP are very simple to prepare and Respondents can reply
on their own, without a lawyer, if the facts are clearly in their favor.
Some Complainants write the briefs themselves, others hire lawyers.  I
don't know what the average cost is of such briefs, but I'm pretty sure
that it is less than the cost of filing a brief in national court.

And there are no appeals in the UDRP, whereas national court decisions can
be appealed, which can increase the costs.

I'll comment here also on a point made by Michael Froomkin:

> What sort of damages does the proposal contemplate for claims adjudged
> to be unworthy?  Unless it is financial  and high, this is an
> invitation to all sorts of forms of abuse. (The absence of such
> sanctions is one  of the flaws in the UDRP.)

The UDRP indeed does not provide for the losing party to pay damages or
legal fees to the winning party.  In that respect, it follows the US
tradition of generally not providing for the losing party to pay the legal
fees of the winning party, except that the US does provide for such
payments in case of abuse, see:

  https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fees)

In contrast, the loser has to pay at least part of the winner's legal fees
in most of the national courts in the rest of the world.  For example, in
Geneva, the loser would pay between CHF 600 18'000 if no damages are
requested, and several thousand if damages are requested, see art. 85 at:

  http://www.geneve.ch/legislation/rsg/f/s/rsg_E1_05P10.html

Regarding the UDRP, the absence of such sanctions against the Complainant
could be remedied, by forcing the Complainant to pay an escrow amount that
would be paid to the Respondent if the UDRP Panel decides to award an
amount to the Respondent.

However, I don't see how sanctions against the Respondent could be
introduced in the UDRP, since it would be manifestly unfair to force a
Respondent to pay an escrow amount on penalty of losing the domain name.
That is, I don't see how the Respondent could be forced to pay even if the
registration of the domain name was manifestly abusive.

> Regards,   Martin.

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