Re: [IFWP] BOUNCE list@ifwp.org: Non-member submission from[KathrynKL@aol.com]

[A. Michael Froomkin (WIPO related mail)]

This discussion of the minute details of WIPO drafting chronology makes me
uncomfortable.  It seems to detract from the substantive issues that matter.
Plus, it makes me defend WIPO.

To be fair to WIPO, I have to say that I did submit my comments to WIPO on the
last draft of RFC 3 rather late, only a day or two before the revised target
publication date of Dec. 23 (I wish I could be more specific but I don't now
recall and since I did it from an aged and now retired laptop which dialed into
a different ISP at a temporary account abroad, I don't have "sent-mail"
records).

The chronology was complex: had WIPO finished its draft by the original planned
date, maybe a week earlier, I'd have been in  a position to comment more
quickly.  The date slipped, as dates do when you are doing something large and
complicated, and by the time it came out, I was away from home.  Before you
start imagining some great consipracy on the dates, I think it was as much
refelection of the many things we had asked to be included as anything else.

Despite the scheduling problmes, I managed to make some comments from where I
was vacationing abroad, but only shortly before the revised publication date.
My comments were, I can assure you, far far less extensive than the ones in my
paper at http://www.law.miami.edu/~amf  .  Many of the issues in my paper are
new -- a real case of what the French call esprit d�escalier (the conceit is of
the person thinking of a crushing retort...while going down the stairs after
leaving the dinner party ).

I honestly don't think one can or should read enormously much into my part in
this chronology. What matters is not the extent to which my limited elventh-hour
comments got into the draft; what matters is to what extent my current
suggestions, and other comments, are reflected in the upcoming final draft.
Energy will be best spent debating this on the merits.

"Richard J. Sexton" wrote:
[quoting Kathryn Kleiman, CoFounder, Domain Name Rights Coalition]
[serious trimming & reformattiing by AMF]

> >Professor Froomkin:
> >Our thanks is to you for all your work on the WIPO Panel of Experts.
> >
> >What you have said in your message below is even more concerning than your
> >point of correction to the DNRC press release (which we are happy to accept).
>
> >If I understand you correctly, you wrote that the changes between WIPO RFC-2
> >and RFC-3 were so substantial that it appeared to you to be a "wholly new
> >document" and that "few" of your changes, corrections and concerns were

I don't see why this is quite as troubling as you suggest.  If I had said that
the document was unchanged would you accuse them of ignoring the comments made
at the meeting?  A good litigator can make both changes and lack of changes seem
damning.  This is why I continue to suggest that the main focus be on the (very
troubling) substance rather than the (imperfect) process.

In a perfect world, we'd have had a fuller draft to start with.  Granted.
Reality is not always perfect.  What matters is what comes out of the process at
the next draft.  I honestly don't know at this writing what that will be.  Could
be great; could be awful.   I do think comments from readers of this list may
matter in influencing the outcome.

> >"reflected in the final draft."
>

As I noted above, this is in part due to timing.  Another part may be that the
WIPO staff just disagree with me.  We'll see in the next draft.  And that is
what matters.

> >These facts are immensely troubling because as the "public interest"
> advocate,
> >your views are critical to the representation of individuals, small
> businesses

I think other members of the panel of experts are concerned about these issues
too.

> >and entrepreneurs in the WIPO process.  Expediency at the cost of the public
> >interest is not a compromise we can accept.>

A. Michael Froomkin      WIPO-related matters: [EMAIL PROTECTED]
Professor of Law             "It's warm here"
U. Miami School of Law ,  P.O. Box 248087
Coral Gables, FL 33124,  USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm